August 20, 2009 - The Department of Veterans Affairs (VA) operates the largest integrated health care system in the nation. Of the 23 million veterans in the country only about 8 million are enrolled in the system. How many of those other 15 million veterans are eligible is unknown-eligibility is an issue in change as I write this. Many veterans feel that the VA has unreasonably denied their and others' claims. A recent legal decision may potentially be a landmark decision and be the beginning to an end to this bureaucratic phenomenon that has caused at least one veteran a severe disservice.

The United States Court of Appeals for the Federal Circuit determined that the Court of Appeals for Veterans Claims (CAVC) and the VA violated the due process rights of a Vietnam War Marine veteran in wrongfully deciding his disability case.

In the case, Cushman v. Shinseki (No. 08-7129), the court ruled that this Marine veteran is entitled to a fair hearing in administrative law courts such as the CAVC. The decision was based upon the Due Process Clause of the Fifth Amendment that guarantees that an individual will not be deprived of life, liberty, or property without due process of law. In this case the due process of law was interpreted by the court to include notice and a fair opportunity to be heard.

The Court decision concluded that:

Mr. Cushman demonstrated that his injury meets the service connection requirement of United States Code. Mr. Cushman has a constitutional right to have his claim for veteran's disability benefits decided according to fundamentally fair procedures. We find that this right was violated due to the presence of an improperly altered medical record in Mr. Cushman's file. We vacate the June 6, 2008 decision of the Veterans Court and remand the case with instructions to grant Mr. Cushman a new hearing before the Board to determine de novo and without the presence of the alterations in his medical record whether Mr. Cushman was unable to secure a substantially gainful occupation between May 3, 1977 and August 31, 1994, because of his service-connected disability.

This decision should play an important role in helping the Secretary of Veterans' Affairs accomplish his goal of changing the culture of the VA. In remarks delivered to the Army's Institute of Land Warfare Army Medical Symposium in July, General Shinseki said:
We have looked at ourselves closely and have decided to make advocacy--yes advocacy-on behalf of veterans both our culture and overarching philosophy...It will involve a long term process in re-orienting our work force and our work habits toward this philosophy. Culture change will take longer.

The court case and the need to change the VA's culture also have something to say about the current health care debate. Will the United States Court of Appeals for the Federal Circuit have legal authority over whatever boards and regulatory agencies are created to manage the program? Should it? How much bigger must it be?
What will be the culture of the proposed medical authority? Will a leader like General Shinseki be necessary to get it started on the right path? Will only a third of the potentially eligible patients enroll, like the VA?

What do you think?

Houston Examiner