VA adjudication process ruling

[garyedolan]

U.S. Court of Appeals issues landmark ruling which could affect hundreds of thousands of veterans

The 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 the law, which mandates a fair and impartial VA adjudication process.
This is a huge victory for the nearly one million veterans now caught up in the 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 non-discretionary, 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 veteran 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 voters' rights? Same deal - the government 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 vs. the 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.
"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. 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.

[RetPara]

There have been 24 views of the post and not one comment. I can only SWAG that many are thinking the same as I.... WHAT THE HELL DOES THAT IS MEAN IN PLAIN SOUTHERN AMERICAN?

[Ranger Bill]

There have been 24 views of the post and not one comment. I can only SWAG that many are thinking the same as I.... WHAT THE HELL DOES THAT IS MEAN IN PLAIN SOUTHERN AMERICAN?

Concure. Gary, give us a summary in plain English.

[Steadfast]

Wow, this is a new view to help the vets.

I may try to see about a claim (for an increase) I put in back in the 90's that the VA swept under the rug.

[garyedolan]

I think I understand what it means in terms of vets with long standing claims. The claims cited here are those ten years old and that’s unbelievable. However, the ruling should but does not give us an understanding of what is a long standing claim and of course, “Due Process.” I contend that 6 months is too long. Otherwise, YOUR reading of this is as learned and as confused as is my reading. I do not know what it means to veterans...

[Ranger Morrissey]

I currently have a claim pending DRO review. It was submitted upon my RFRAD in Sep '93. Its' initial refusal was 1994. It was refused because the VA sent me notification of my benefits physical a week after it was scheduled. I tried to get it rescheduled, many times, to no avail - they said it was my fault, regardless. Who cares who fault it was, I just wanted to get the benefits for injuries I now suffered from as a result of military service!!! And, the refusal of benefits wasn't even based upon the proper DD 214's!!!

As I understand the ruling referred to in this post, any Veteran that has been denied due process of any claim they have made is covered by this ruling, as well as every claim submitted. I fought for 3-5 yrs initially, until I couldn't get anyone's attention to help fight my claim refusal. And, since I retired on I Oct 07, I was again denied due process - based upon erroneous information, not using supplied medical records and not getting/using medical records only the VA could get...

This is a great victory for all of us and should lead to a mandate of the VA to fully comply with the legislation to fully fund the claims process, to allow for a 90-day window to process every claim.

[RRDTm3]

a 90-day window to process every claim.

got it

[Ranger Morrissey]

Is His Honor, Mr. Eric Shinseki, GEN (Ret), a member here? We should extend the hand of Rangers everywhere to him in order to bring more focus on this process for the betterment of all involved...

[ma91c1an]

Is His Honor, Mr. Eric Shinseki, GEN (Ret), a member here? We should extend the hand of Rangers everywhere to him in order to bring more focus on this process for the betterment of all involved...

Surely you jest.