Due Process

The A to Z Guide to VA Disability Benefits

JimStrickland912

Your Subtitle text

This is a court of law, young man, not a court of justice.
Oliver Wendell Holmes

Custom Search

Due Process

This information is provided courtesy of; Sean Culliton, Esq. http://www.seanculliton.com

Veterans Finally Have Their "Due"

Terrorists held in Guantanamo have it; murderers have it; Wall Street crooks have it; politicians taking bribes have it; and now, veterans have "it."

The "it" is the protection of due process of law in a veterans' interaction with the government when seeking VA benefits. It may seem odd that the very people who have preserved the constitutional right to Due Process for the rest of the United States are only now being afforded that right themselves.

This article will explore the case of a brave and determined veteran who won this right, and consider what this victory may mean for all veterans. The most exciting potential outcome of this case is that VA benefits which have been denied will be awarded retroactively.

Philip Cushman is a Marine Veteran of the Vietnam War. He suffered a spine injury when a sandbag fell on him and he was honorably discharged in 1970.

He initially applied for VA Disability Benefits in 1974 and was given a 60% disability rating for his back. He found work for a time with a flooring store, but his back made it difficult to work and he was asked to resign in 1976. He underwent an examination at the Portland VA clinic where the doctor recorded the following: "Is worse + must stop present type of work."

In 1977 he applied for total disability based upon individual unemployability ("TDIU") and this is where the VA's thirty-two year campaign to deny Philip Cushman his constitutional rights begins.

Someone altered this medical records to now read: "Is worse + must stop present type of work,...or at least...bend...stoop lift." and "says he is applying for reevaluation of back condition." His application for TDIU was denied based, at least in part, on these fabricated medical records. His claim for social security disability was also denied after the DVA sent the social security administration the same forged records to consider. In 1994 Mr. Cushman sought another assessment of his back condition and was awarded TDIU.

In 1997 he finally discovered the fabricated medical record which may have cost him twenty years worth of benefits. The DVA acknowledged their mistake and retroactively reinstated his benefits, right? Wrong! They did apologize for the error, but took the legal position that Mr. Cushman was not entitled to the retroactive benefits and did not have a constitutional right to a fair trial. (The Social Security Administration had award him benefits going back to 1974 after a separate lengthy court battle.)

On August 12, 2009 the United States Court of Appeals for the Federal Circuit, in the case Cushman v. Shinseki, finally ruled that veterans have a constitutionally protected property right in their application for benefits, and that this right cannot be denied without proper notice and a fair opportunity to be heard. The court cited the Fifth Amendment to the United States Constitution States that an individual will not be deprived of life, liberty, or property without due process of law.

One does not have to be a lawyer to know that one of the primary benefits of our Constitution is to protect us from our government. The First Amendment allows us to speak and pray with much freedom. The Second Amendment allows us to keep and bear arms to protect us from oppression, both foreign and domestic. The Forth Amendment protects us from unreasonable searches and seizures by the government. The Fifth Amendment limits the ability of the government to take things from us: our freedom, our houses, our families, our money, and our lives. Thanks to Mr. Cushman, the Fifth Amendment, and serious judges, a veteran's right to seek benefits cannot be denied by an unfair trial.

So, what does all this mean for veterans? According to Charles Romo, a retired VA judge and current attorney with the Florida based law firm of Solomon, Sullivan, Romo and Durrett, "This Cushman decision will allow many veterans to revisit the denial of their claims and provide some with the retroactive award of benefits worth $60,000.00 to $70,000.00." In order to benefit from this ruling, veterans who have been denied benefits will have to carefully document any errors they believe the VA has made in conjunction with their case.

Mr. Cushman's altered medical record is the type of "smoking gun" which demonstrates a potential basis for asserting a denial of due process. All veterans with potential claims should be diligent in keeping track of all the medical records and documents sent to, and received from, the VA. Always keep track of documents sent to the VA by using USPS "certified mail" or FedEx (keep the receipts and copies of sent document).

The VA routinely denies claims based on the failure to take certain actions within a specific timeline. The VA, however, may have been mistaken, or worse, about when certain documents were sent to them. Once a discrepancy is identified, it may be used as the basis to have denied claims "reconsidered." Veterans, however, should not expect to have benefits awarded retroactively just because the VA is generally "unfair" to veterans.

Assuming the United States Supreme Court does not reverse Cushman v. Shinseki, there are other potential benefits of veterans being entitled to "due process." Due process may prevent the VA from taking too much time to determine a veteran's claim. Due process may provide relief to veterans who are not given medical examinations in conjunction with their claims, or if the VA or military does not provide all the relevant records in their possession which may have assisted the veteran in the claims and/or appeals process.

Due process may even allow veterans with a dishonorable discharge to challenge the appropriateness of the discharge.

If you believe you have been denied due process, you should gather all your relevant documents together and consult with an attorney or advocate accredited by the Veterans Administration to represent veterans.

Since 2007, Veterans have had the legal "right" to pay an accredited attorney or advocate a "reasonable fee" to represent them in certain VA appeals. For over 140 years and attorney could be paid no more than $10.00 to represent a veteran.

This previous law generally limited a veteran to assistance from attorneys working for free, or to advocates associated with services of groups like the American Legion. These dedicated advocates provide a valuable service to veterans, but the shear number of veterans' claims justifies allowing easier access to legal assistance by allowing payment to accredited professionals.

Veterans now have a "fighting chance" to get the benefits they earned by protecting the rights of the rest of the United States.

Also see:

November 9th 2009 Article:

This article is provided courtesy of;
Drew N. Early, Esq.
Cracks in the Armor: Due Process, Attorney’s Fees, and the Department of Veterans Affairs