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

In 2009, the Federal Circuit held in Cushman v. Shinseki that applicants for veterans‘ benefits have a constitutionally protected property interest in their application for benefits. Accordingly, such applicants are entitled to constitutionally prescribed procedures in connection with their claims for benefits under the terms of the Fifth Amendment to the United States Constitution.

The Ninth Circuit also found that Mr. Cushman’s medical record had been “fraudulently altered.”

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.