In 2009, the Federal Circuit held in Cushman v. Shinseki that applicants for veterans‘ benefits have a constitutionally protected property interest in their application for benefits. Accordingly, such applicants are entitled to constitutionally prescribed procedures in connection with their claims for benefits under the terms of the Fifth Amendment to the United States Constitution.
The Ninth Circuit also found that Mr. Cushman’s medical record had been “fraudulently altered.”
For the reasons discussed below, we find that a veteran alleging a service-connected disability has a due process right to fair adjudication of his claim for benefits. We further find that Mr. Cushman’s due process rights were violated in this case by the consideration of tainted medical evidence. We vacate the contrary decision of the Court of Appeals for Veterans Claims (“Veterans Court”) and remand the case with instructions for a new hearing.
CUSHMAN v. SHINSEKI – FindLaw
United States Court of Appeals, Federal Circuit. Philip E. CUSHMAN, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. No. 2008-7129. Decided: August 12, 2009 Before SCHALL, PLAGER, and PROST, Circuit Judges.Kevin A. Calia, Morrison & Foerster LLP, of San Francisco, California, argued for claimant-appellant. Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of [Read More…]
CUSHMAN v. SHINSEKI – PlainSite
PHILIP E. CUSHMAN,Claimant-Appellant,v.ERIC K. SHINSEKI, Secretary of Veterans Affairs,Respondent-Appellee.Kevin A. Calia, Morrison & Foerster LLP, of San Francisco, California, argued for claimant-appellant.Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Allison Kidd-Miller, Trial Attorney. Of counsel on the brief [Read More…]
Cushman v. Soc. Sec. Admin.
Meanwhile, Mr. Cushman filed a civil action in the United States District Court for the District of Oregon regarding the denial of his social security disability claim. The district court remanded Mr. Cushman’s case for further evaluation by the Social Security Office. Mr. Cushman appealed to the United States Court of Appeals for the Ninth Circuit. In April of 2006, [Read More…]
Determined Cushman scores veterans benefits victory
THE NATIONAL LAW JOURNAL Marcia Coyle – September 1, 2009 Veterans, who often encounter lengthy delays and other obstacles in their pursuit of service-connected benefits, have a new constitutional right that may help them cut through some of the notorious, bureaucratic red tape inherent in the Department of Veterans Affairs’ claims process. The U.S. Court of Appeals for the Federal Circuit, in a little-noticed case [Read More…]
Due process and the American Veteran: what the Constitution can tell us about the veterans‘ benefits system
… This Article concerns a recent and important development in the area of veterans‘ benefits determinations, one that has significant implications for both the practical workings of the process as well as for how we consider that system at a fundamental level. The CAVC‘s decisions may be appealed to the United States Court of Appeals for the Federal Circuit. In 2009, the Federal Circuit held in Cushman v. Shinseki that applicants [Read More…]
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