## Facts

- Philip E. Cushman, a Vietnam-era Marine Corps veteran, suffered a serious back injury during service.
- Cushman sought VA disability compensation; the Board of Veterans’ Appeals (BVA) found the injury service-connected and assigned a 60% disability rating.
- Cushman later sought increased compensation, including a total disability rating based on individual unemployability (TDIU).
- In adjudicating his benefits claims, the VA relied in part on medical records that included an improperly altered document.
- Cushman contended that the altered medical evidence tainted the adjudication and denied him a fair process under the Fifth Amendment.

## Issues

1. Whether a veteran alleging a service-connected disability has a constitutionally protected property interest in the fair adjudication of a VA disability benefits claim under the Fifth Amendment Due Process Clause.
2. Whether due process was violated when the VA and BVA relied on an improperly altered medical record in deciding Cushman’s disability rating and TDIU claim.

## Decision

- The Federal Circuit held that a veteran alleging a service-connected disability has a due process right to fair adjudication of a claim for VA benefits.
- The court concluded that Cushman’s due process rights were violated because the agency considered tainted medical evidence containing an improperly altered document.
- The court vacated the judgment of the Court of Appeals for Veterans Claims and remanded with instructions to provide a new hearing.

## Legal Principles

- Statutory and regulatory limits that make benefits entitlement non-discretionary upon satisfaction of eligibility criteria can create a constitutionally protected property interest.
- VA disability claimants have a Fifth Amendment due process right to fair adjudication of their benefits claims.
- Adjudication that relies on falsified, manipulated, or improperly altered evidence is fundamentally unfair and violates due process.
- The ordinary remedy for a due process violation based on tainted evidence is vacatur and readjudication through a new hearing using an accurate record.

## Conclusion

The Federal Circuit recognized that veterans pursuing service-connected disability compensation possess a Fifth Amendment property interest in the fair adjudication of their claims, and it required a new hearing where the VA’s decision-making had been affected by an improperly altered medical record.


Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)