August 13, 2009 - "We conclude that such entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution."

by Larry Scott, VA Watchdog dot Org

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We have a landmark decision from the United States Court of Appeals for the Federal Circuit which could impact hundreds of thousands of veterans.

The Claimant-Appellant, Philip E. Cushman, described it to me this way in an email:

U.S. Court of Appeals for the Federal Circuit, [has] recognized a PROPERTY RIGHT INTEREST in a VA claim, thus triggering the legal protections of DUE PROCESS OF LAW which mandates a FAIR and IMPARTIAL VA adjudication process. This [is] a HUGE victory for the [nearly] MILLION veterans now caught up in VA backlogged claims denial mill.

The Court stated:

This case involves an alleged violation of a veteran's right to due process under the Fifth Amendment to the United States Constitution, where the medical record on which his service-connected disability claim was evaluated contained an improperly altered document. In contending that a veteran has a protected property interest requiring fair adjudication of his claim for disability benefits, the Appellant raises a constitutional issue of first impression for this court. 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.

The Court added:

Veteran's disability benefits are nondiscretionary, statutorily mandated benefits. A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations. We conclude that such entitlement to benefits is a property interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution.

An attorney who practices veterans' law chimed in:

As you may recall, I have been mumbling for some time that the delays in the VA system, including at the Veteran's Court, are approaching "constitutional dimensions." This ruling makes it clear (at least to me) that the Constitution protects veterans claimants and the failure to provide due process (i.e., altering documents, shredding documents, failure to process, etc.) is a constitutional violation.

It is now a matter of how long a delay in processing has to be before VA violates the constitution, not whether. Find me someone who has not heard from the VA for 2 years or more and I am prepared to find out the answer.

The same attorney went on to explain how this could impact many veterans:

The Court's unequivocal statement that Veterans' Benefits are protected property rights is important because it slams the door on the VA's defense of last resort that it is a federal agency and no one (not a vet or a court) can tell it how long to take in doing its job. Now that excuse is no longer available. the Constitution requires "due process" and that process is well-established for veterans. It also requires that the process that is due actually gets done at some point.

With backlogs approaching a million, initial processing times measured in years, and total appeal times approaching a decade, the Constitution, not VA, becomes the measure (as it should be) regarding whether VA is providing adequate "process." Think this is odd or unique? Ever hear of school desegregation, prison overcrowding, or voter rights? Same deal - the government(s) would not enforce the rights of the individuals to attend school, have humane prison conditions, or vote without intimidation. The federal courts gave the states some time to enforce Brown v. Board of Education (ordering desegregated schools) then ordered those who refused to do so under threat of court order. Can you imagine what would have happened if an individual seeking admission to a particular school had been waiting 10 years for a decision on his or her admission and filed a lawsuit to enforce Brown, but the federal court ruled that while 10 years seemed like a long time, you had to keep things in perspective???? All heck would have happened, that's what.

Well read the very first substantive decision by the Veterans Court, Erspamer v. Derwinski. Mrs. Erspamer filed a petition asking the Veterans Court to make VA issue a decision on her claim for DIC. She had waited more than 10 YEARS without VA action. 10 years!!! The Court stated that while "ten years is an undeniably . . . long time" the court did NOTHING but tell Mrs. Erspamer that she could renew her request in six months if the VA did not issue a decision!!! And what happened - NOTHING.

I do not think that this type of "process" will meet constitutional, rather than VA standards.

This case must also be very sweet for Gordie Erspamer, Mrs. Erspamer's son, and the attorney in that case, as well as the current PTSD litigation in California. The attorney who argued the Cushman case is a member of Gordie's law firm.

In sum, as I see it, veterans now have a means to challenge outrageous delays, either at the VARO, the Board, or the Court. VA can no longer just keep pushing everything out until they get around to it. I am sure VA will fight this to the last man or woman, but somewhere, sometime, some court is going to find some period of delay crosses the line of due process into a constitutional violation AND order the VA to do whatever was supposed to be done. That is the big difference.

I suspect that one of the first targets for a challenge may be the new GI Bill process. As I see it, those applying and meeting the eligibility list are guaranteed the benefit of tuition for the upcoming semester. In other words a property right protected by the Constitution. Failure of VA to pay that benefit on time will mean no school unless the school is willing to take an IOU from VA or the student (unlikely as most schools are cash-strapped already). No amount of money later can recover the lost semester. So if VA cannot process the claims on time or will not pay the tuition up front and review the application later, I see a whole lot of process coming due on the Secretary in a few weeks.

The entire Court decision makes for some very interesting reading ... and should be read by any veteran who has an active claim.

The decision is here for viewing or download.

VA Watchdog