United States Court of Appeals, Federal Circuit.

Philip E. CUSHMAN, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
No. 2008-7129.
Decided: August 12, 2009

Before SCHALL, PLAGER, and PROST, Circuit Judges.Kevin A. Calia, Morrison & Foerster LLP, of San Francisco, California, argued for claimant-appellant. Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Jeanne E. Davidson, Director, and Allison Kidd-Miller, Trial Attorney. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Tracey P. Warren, Attorney, Office of the General Counsel, United States Department of Veterans Affairs, of Washington, DC.

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.


Philip Cushman served in a United States Marine Corps combat infantry battalion in Vietnam during the Vietnam War. While he was fortifying a bunker in Vietnam, a heavy sandbag fell on Mr. Cushman’s back and damaged his spine. He was honorably discharged in January of 1970. Mr. Cushman underwent four spinal surgeries to treat his injury and has received continuous pain medication.

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