On August 12, 2009, the U.S. Court of Appeals for the Federal Circuit, the court that hears appeals from the U.S. Court of Appeals for Veterans Claims, issued a decision that creates a new way to challenge an adverse VA decision. In Cushman v. Shinseki, No. 2008-7129 (Fed. Cir. Aug. 12, 2009), the court held that applicants for veterans disability benefits have a constitutionally protected property interest in their entitlement to those benefits, of which they cannot be deprived without due process of law. Although it is well-settled that recipients of government benefits have a protected property interest in those benefits, the federal courts of appeals have been split on whether those seeking such benefits are entitled to constitutional due process of law. The court answered that question in the affirmative. The court held that veterans acquire such a property interest because veterans disability benefits are non-discretionary, statutorily mandated benefits to which a veteran is entitled by satisfying of the requirements governing entitlement thereto.
The facts in Cushman were particularly egregious. A VA employee apparently altered medical evidence so it would appear less favorable to Mr. Cushman’s claim. The court held that VA’s continued adjudication of his claim with this tainted piece of evidence in the record deprived him of entitlement to the sought-after benefits without due process of law. In so doing, it permitted him to overcome the finality of a prior 1980 Board of Veterans’ Appeals decision, and ordered a new hearing of his 1977 claim denied in that decision. It is through this ability to circumvent the finality of prior adverse decisions where Cushman may have its most significant impact.
The Court of Appeals for Veterans Claims and the Federal Circuit will now have to wrestle with how egregious the VA action or omission must be to rise to the level of a deprivation of due process of law. In Gambill v. Shinseki, No. 2008-7120 (Fed. Cir. Aug. 13, 2009), for example, the Federal Circuit rejected the veteran’s argument that he was deprived due process of law by not being allowed to serve written interrogatories on the VA physician who prepared an adverse medical opinion. The court acknowledged Cushman, but declined to address whether due process of law compelled the relief Mr. Gambill sought. It held that even if such a right existed, VA’s failure to provide it to Mr. Gambill did not prejudice him. In separate, non-binding opinions, however, one of the panel’s judges explained why she believes due process of law compels providing claimants the opportunity to confront VA physicians who prepare the dispositive medical opinions in their claims, while another explained why he does not.
