The Department of Veterans Affairs (VA) operates the largest integrated health care system in the nation. Of the 23 million veterans in the country only about 8 million are enrolled in the system. How many of those other 15 million veterans are eligible is unknown—eligibility is an issue in change as I write this. Many veterans feel that the VA has unreasonably denied their and others’ claims. A recent legal decision may potentially be a landmark decision and be the beginning to an end to this bureaucratic phenomenon that has caused at least one veteran a severe disservice.
The United States Court of Appeals for the Federal Circuit determined that the Court of Appeals for Veterans Claims (CAVC) and the VA violated the due process rights of a Vietnam War Marine veteran in wrongfully deciding his disability case.
In the case, Cushman v. Shinseki (No. 08-7129), the court ruled that this Marine veteran is entitled to a fair hearing in administrative law courts such as the CAVC. The decision was based upon the Due Process Clause of the Fifth Amendment that guarantees that an individual will not be deprived of life, liberty, or property without due process of law. In this case the due process of law was interpreted by the court to include notice and a fair opportunity to be heard.
The Court decision concluded that:
:
Mr. Cushman demonstrated that his injury meets the service connection requirement of United States Code. Mr. Cushman has a constitutional right to have his claim for veteran’s disability benefits decided according to fundamentally fair procedures. We find that this right was violated due to the presence of an improperly altered medical record in Mr. Cushman’s file. We vacate the June 6, 2008 decision of the Veterans Court and remand the case with instructions to grant Mr. Cushman a new hearing before the Board to determine de novo and without the presence of the alterations in his medical record whether Mr. Cushman was unable to secure a substantially gainful occupation between May 3, 1977 and August 31, 1994, because of his service-connected disability.
This decision should play an important role in helping the Secretary of Veterans’ Affairs accomplish his goal of changing the culture of the VA. In remarks delivered to the Army’s Institute of Land Warfare Army Medical Symposium in July, General Shinseki said:
We have looked at ourselves closely and have decided to make advocacy--yes advocacy—on behalf of veterans both our culture and overarching philosophy…It will involve a long term process in re-orienting our work force and our work habits toward this philosophy. Culture change will take longer.
The court case and the need to change the VA’s culture also have something to say about the current health care debate. Will the United States Court of Appeals for the Federal Circuit have legal authority over whatever boards and regulatory agencies are created to manage the program? Should it? How much bigger must it be?
What will be the culture of the proposed medical authority? Will a leader like General Shinseki be necessary to get it started on the right path? Will only a third of the potentially eligible patients enroll, like the VA?
What do you think?
Comments
In 1967 I got a punji stake wound in my right calf, was treated by my medic and returned to duty. Khe Sanh was 40 KMs from my medical records and the wound was never posted to them. Five years ago I started getting cramps where the wound was. I contacted the medic who treated me and got a notarized statement to the effect that he had treated me. When I applied to the VA for disability consideration, they said that the wound was not in my records and the case would not be reviewed. When I petitioned the Department of the Army to change my medical records, they told me the same thing. Was this due process?
From what I understand about Rick Shinseki if he can't make a significant mark on the culture of the VA then no one can. You know that there are eight or nine categories of those in the VA system. The highest number being those who served just six months on active duty and a few years in the guard or reserve and as I see it those folks have nothing due from the VA. Only the lower numbered groups have a deserved right to all that the VA can offer. The VA at Tuscaloosa does a marvelous job in meeting the patients needs. The CAVC should certainly have authority over Veterans claims. Most claims should be turned down for benefits from what I have learned. It is my opinion that well over a third of those deserving of VA benefits have already asked for assistance and have been successful. It is my view that a high percentage of those who haven't applied for benefits just don't have a case.In the last eight years I have found only VA employees who genuinely care for the real veterans.
Bruce I just sent you a note and it just had me as "B". I probably messed up somewhere - thanks, Bob Gray.
B:
I agree that the medical care is first rate, BUT the bureaucratic part of the system is anti-veteran and culturally oriented at slowing down the granting of benefits and doing it grudgingly. I say this as I sit with a hot pad on my back for severe pain in my back that is only 3 or more months into consideration by the VA bureaucracy. Two systems--Drs and care givers--great! Bureaucrats--terrible and hard to get to.
B, I call BS on your claim that "The highest number being those who served just six months on active duty and a few years in the guard or reserve." You pulled this stat out of your ass and you know it. Not only is it rare to get the boot in six months its even rarer to get out to due misconduct in that time frame rather than being due to an injury, which yeah if you get hurt in the line of duty (I don't care how long they've been in) then you are entitled to treatment by the VA. Believing that so few who would even meet VA's eligibility requirements are somehow overrunning it requires a leap of logic. As for the Guard and Reserve they aren't even eligible for VA services unless they go on federal active duty. Moreover, IMHO, B's definition of a veteran is self righteous nonsense. If you serve in the military then you are a REAL veteran plan and simple. Although non-combat vets better by me a beer, j/k... or am I??? ;-p
if u r in the phili area and would like to speak with the regional service center manager about the benefits available feel free to call 215-842-2000 x 4292 and ask for eileen kostic good luck and remember to always protect yourself from your government. they are the very last people to trust.....
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