Due Process for Veterans. Cushman Gives Vets Another Route to Retroactive Benefits & Heightens Protections for Claimants

Transcription

1 Due Process for Veterans Cushman Gives Vets Another Route to Retroactive Benefits & Heightens Protections for Claimants

2 Due Process Clause of 5 th Amendment No person held to answer for a capital or infamous crime, unless on a presentment or indictment of a Grand Jury (w/ some exceptions); nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation

3 Definition of Due Process What is due process? Basically, the right to fair process b4 deprivation of life, liberty, or property Satisfying due process--involves comparing proposed govt action w/ the private interest to be affected to ensure that a person s property not taken w/o sufficient justification

4 Examples of property protected by the U.S. Constitution Disability benefits; Public welfare benefits; Retirement benefits; and Medicaid

5 Required to Satisfy Due Process before Discontinuing/Reducing Benefits adequate notice of right to hearing b4 discontinuing property interest; a hearing prior to discontinuing recognized property interest; right to examine adverse witnesses; right to present evidence in one s own favor; statement of reasons for termination.

6 Due Process is... A safety valve

7 Leading up to Cushman Walters v. Natl Assoc of Radiation Survivors Supreme Court reversed District Ct in California District Ct had held that the $10 limit violated Due Process Clause because it denies veterans/survivors opportunity to retain counsel of their choice in pursuing claims

8 Walters v. Natl Assoc of Radiation Survivors Supreme Court did not explain whether due process applies to VA decisions concerning applicants for benefits

9 Facts of Cushman Vet injured back in VN while fortifying a bunker sandbag fell on back 10/74 filed for SC for back Was awarded 60% eval maximum for back Worked as manager at flooring store req. bending & lifting Back worsened

10 Facts of Cushman During last months at work he would lie flat on back behind counter, completing paperwork 10/76 VA OPT clinic records show dx of postoperative ruptured intervertebral disc w/ radiculopathy & DJD 11/15/76 assessment at OPT clinic is worse + must stop present type of work

11 Facts of Cushman 11/76 asked to resign b/c could not perform job duties 5/77 filed for TDIU Included ltr from former employer that vet could not continue work b/c he always had to lie on his back to do paperwork 7/77 VA denied TDIU

12 Facts of Cushman 2/78 BVA remanded claim for RO to consider the medical evid 11/78 RO denied TDIU again 4/80 BVA denied TDIU Board concluded: evid fails to show symptoms that would preclude sedentary employment

13 Facts of Cushman But the evid that BVA viewed differed from the medical record on file at the VA OPT clinic Record before BVA said is worse + must stop present type of work, or at least bend [] stoop [] lift. Says he is applying for reevaluation of back condition.

14 Facts of Cushman 1982 denied BVA reconsideration 1982 vet applied for SSA benefits and VA sent to SSA records containing altered version 1994 vet applied for TDIU again was granted TDIU eff 8/94

15 Facts of Cushman 10/97 vet discovers that 2 versions of his medical record exist VA and OIG investigate no relief for vet and investigations closed Vet challenges RO 1977, 1980, 1982 decisions as CUE 2/99 BVA says 1977 decision subsumed by later BVA decisions & ignores CUE claim against 80 and 82 decisions

16 Facts of Cushman Vet appealed to CAVC 2001-CAVC affirms BVA decision as to CUE against 1977 decision and says no jurisdiction to address 80 & 82 decisions b/c not properly raised

17 Facts of Cushman At Fed. Cir. VA argued that vet s CUE claims against BVA decisions were not decided and that vet should start all over by filing CUE claims 2/02 Fed. Cir. affirms CAVC 10/03-vet files CUE claims against 80 & 82 BVA decisions 8/05 BVA rules no CUE b/c those decisions did not indicate that BVA relied on the altered document so impossible to show that considering altered doc was outcome determinative

18 Facts of Cushman 4/06 as to SSA benefits, 9 th Circuit found vets records fraudulently altered 8/07 SSA Council found vet continuously disabled since 2/76 & extended benefits accordingly

19 Facts of Cushman Vet appealed 8/05 BVA decision to Court CAVC affirmed Board Vet appealed to Fed. Cir. (2 nd time) At Fed. Cir., govt offered voluntary remand for BVA to reconsider 80 & 82 decisions Fed. Cir. found that voluntary recon would not offer vet adequate relief (no guarantee vet would receive new hearing or that altered record would be removed)

20 Fed. Cir. Decision in Cushman Vet argued denied full & fair hearing on the facts due to presence in c-file of altered docs This is due process argument Due process of 5 th amendment guarantees not deprives of life liberty or property w/o due process of law. This includes right to notice and fair opportunity to be heard

21 Fed. Cir. Decision in Cushman Disability benefits protected property interested, not to be discontinued w/o due process (Mathews v. Eldridge) But Sup. Ct. has not decided whether applicant for disability benefit (not yet entitled to benefit) have a property interest

22 Fed. Cir. Decision in Cushman Sup. Ct.--have to have more than abstract desire for benefit Must have legitimate claim of entitlement to benefit (Town of Castle Rock, Colo v. Gonzales) Sup. Ct. due process applies to decisionmaking in SSA claims (Richardson v. Perales)

23 Fed. Cir. Decision in Cushman Sup. Ct. VA benefits more like SSA benefits than like welfare benefits (Walters v. Natl Assoc of Radiation Survivors) Fed. Cir. entitlement to VA benefits arises from a source independent from the VA proceedings Fed. Cir. VA statutes provide an absolute right to benefits to qualified individuals

24 Fed. Cir. decision in Cushman 9 th Cir. held in 1992 that both applicants for and recipients of VA benefits possess constitutionally protected property interest in those benefits (Walters v. Natl Assoc of Radiation Survivors 9 th cir decision) 7 other circuits found same in similar (non- VA) situations

25 Fed. Cir. decision in Cushman Fed. Cir. concludes that entitlement to VA benefits is a property interest protected by Due Process Clause of 5 th Amendment to US Constitution

26 Fed. Cir. decision in Cushman Vet argued VA failed to apply existing procedures b/c improperly altered medical records were introduced Procedures of deciding claims must be sufficient for the large majority of claimants in order to be constitutionally adequate But a fundamentally fair adjudication is constitutionally required in all cases, not just majority of cases

27 Fed. Cir. decision in Cushman Presenting fraudulent evidence constitutes a due process violation Altered evidence affects due process if there is a reasonable probability of a different result w/o the altered evidence In Cushman the presenting of altered evid was prejudicial b/c:

28 Fed. Cir. Decision in Cushman RO instructed by BVA on remand to consider medical evidence in determining vet s employability Altered document was the only piece of medical evidence addressing current employability

29 Fed. Cir. Decision in Cushman VA argued that the RO & BVA did not discuss which evid determined their finding that vet not unemployable But Fed. Cir. says any reasonable fact finder would have considered the altered medical record b/c it was the only evid that spoke to question of employability

30 Fed. Cir. decision in Cushman Fed. Cir. reasonable probability that TDIU would have been granted if RO/BVA considered unaltered doc, not altered doc Fed. Cir. consideration of altered doc in adjudicating TDIU claim violated vet s constitutional right to a fair hearing

31 Fed. Cir. decision in Cushman Fed. Cir. vet entitled to new hearing w/o presence of altered document CAVC decision vacated and remanded w/ instructions to remand to BVA to de novo determination of the 1977 TDIU claim

32 Fed. Cir. decision on CUE Vets 2 CUE arguments 1) Argued considering altered med record is CUE b/c the correct facts were not before the BVA when decision made 2) Argued BVA used wrong standard used 4.18 (requires vet be precluded from all employment) and not 4.16 (requires precluded from substantially gainful employment)

33 Fed. Cir. decision CUE Vet argued CUE claim compels Ct to reverse CAVC decision and issue an order directing CAVC to grant TDIU rating eff. 5/77 1 st CUE argument-- correct facts were not before the BVA when it made TDIU decision Fed. Cir. answer vet could not show this was outcome determinative b/c BVA did not specify evid relied on in denying claim

34 Fed. Cir. decision CUE No remand for BVA to explain reasoning b/c due process claim gives relief vet wants a new TDIU decision w/o altered evid considered

35 Fed. Cir. decision CUE 2 nd argument that BVA used wrong standard BVA found vet had completed electronics course and that sedentary employment not precluded

36 Fed. Cir. decision CUE Fed. Cir. answer--vet didn t show BVA used wrong standard BVA use of unemployable wasn t a substantive error just wrong choice of words Fed. Cir. said that vet could argue to the BVA on remand that his SC disability precluded electronics work that was substantially gainful

37 Fed. Cir. Conclusion in Cushman Vet has constitutional right to have claim for disability benefits decided w/ fundamentally fair procedures That right violated due to altered record Vet gets new hearing de novo w/o altered record in file, as to whether he was unable to secure SGO between 5/77 and 8/94

38 Effect of Cushman decision Previously there were 2 ways for a vet to obtain benefits after a prior final BVA/RO denial 1) CUE retro benefits back to date of prior claim if decision contained outcome determinative error of fact or law (based on record existing at time of earlier decision) 2) Reopen w/ new & material evid benefits back to date claim to reopen filed

39 Effect of Cushman decision Now there is a 3 rd way to get benefits after final denial 3) Due process violation if procedural error so outrageous then may be able to get retro benefits under due process argument This is BIG. Now advocates can use CUE and/or due process argument & possibly get retro benefits But error must be OUTRAGEOUS

40 How to Argue Due Process Violated & Get Retroactive Benefits Must be a previous denial (often will make due process argument where a prior final denial) Must be an egregious error Must show reasonable probability of a different result (in other words, must show error prejudicial)

41 What does Cushman mean for Advocates? Cases that Cushman applies to: Altered records (false or fraudulent records in c- file) Need some proof that record was altered (Cushman had original unaltered medical record)

42 What does Cushman mean for Advocates? Cases where Cushman may apply: Other vet s records in C-file claim denied on basis of those records

43 Cases where Cushman may apply: Language issues Untranslated medical records that would have shown entitlement to benefit if translated (38 CFR (c) (for tort claims, documents must be in English or be translated) U.S. VET.APP. R. 3(h) ("Any document transmitted to the Court in a language other than English must be accompanied by an English translation that is certified by the translator as true and accurate.")

44 What does Cushman mean for Advocates? Cases where Cushman may be relevant: Unreasonable delay

45 Post-Cushman Cases Gambill Gambill (576 F.3d 1307 (Fed. Cir. 2009)) Vet argued that under Due Process Clause vet must be given chance to confront a dr. who submits a negative med opinion Fed. Cir. says harmless error even w/o negative med op from ophthalmologist, vet would not have won b/c no evid that service injury caused cataracts

46 Post-Cushman Cases Gambill Gambill left open the Q whether vets have right to confront dr. who gives negative med opinion

47 Post-Cushman cases Edwards Edwards v. Shinseki, 582 F.3d 1351 (Fed. Cir. 2009) Vet failed to appear for VAE and was denied SC; later received SC for mental condition Vet seeking EED for SC for mental condition Argued that b/c of psych disorder he didn t understand notice of the VAE

48 Post-Cushman Cases Edwards Vet argued he deserved tailored notice of the VAE and a hearing concerning his mental competency Fed. Cir. held this case does not warrant extraordinary addl protections Not once did vet complain that he had not recv d notice or proper procedures--during 30 years of seeking VA benefits

49 Post-Cushman Cases Edwards Fed. Cir. upheld CAVC that vet had not offered substantial evid that he was incompetent during the pendency of claim for SC Mental illness & competency are not same thing Vet s records show mental illness, but incompetency only for short period of time

50 Post-Cushman Cases w/o evid of vet s inability to understand a notice letter and w/o evid that vet raised this Q at all over 30 yr period Fed. Cir. found no error in CAVC decision that vet recv d adequate process

51 Post-Cushman Cases Edwards Judge Rader Dissent: Says that in Lyng Sup. Ct. case, Ct. said it has never held that applicants for benefits (as opposed to those receiving them) have legitimate claim to Due Process Feels that Cushman stepped beyond the bounds set by Sup. Ct.

52 Post-Cushman Cases Edwards J. Rader Dissent feels that Social Security claimants, unlike claimants for VA benefits, have paid into the retirement system with an expectation of recovery of investments J. Rader vet must first prove an injury or condition sustained as a result of service. W/o that, no entitlement arises. This hurdle would defeat any claim to due process protection during eligibility inquiries