Cushman v. Shinseki

576 F.3d 1290 (Fed. Cir. 2009)


P served in a Marine Corps combat infantry battalion in Vietnam during the Vietnam War. While he was fortifying a bunker in Vietnam, a heavy sandbag fell on P's back and damaged his spine. He was honorably discharged in January of 1970. P underwent four spinal surgeries to treat his injury and has received continuous pain medication. In October of 1974, P filed a disability claim and after three years of interaction with medical examiners and Adjudication Officers at the Regional Office, the Board of Veterans' Appeals (Board) found that P's injury was service connected, and classified his symptoms as 'pronounced' (a grade above 'severe') with 'persistent symptoms' and 'little intermittent relief.' P secured a job as a manager at a flooring store. P's back condition worsened. During his last few months at work, he would typically lie flat on his back behind the store counter to fill out paperwork and whenever it was not necessary to move around. In November of 1976, P was asked to resign his position at the warehouse due to his inability to perform his job duties. In October 1976, P went to the Portland DVA Clinic to have his condition reassessed. P was diagnosed with a postoperative ruptured intervertebral disc, with radiculopathy and degenerative joint disease affecting his lumbar and lumbosacaral spine. After P resigned from his job, he returned to the Clinic for another assessment. The last comment in the record stated, 'Is worse + must stop present type of work.' P filed for a total disability based upon individual unemployability. P included a letter from his former employer about P being unable to work and always lying on his back to do paperwork. The Regional Office denied P's claim without obtaining his medical records. P appealed to the Board. In February of 1978, the Board vacated the denial and remanded the case to the Regional Office with instructions to consider medical evidence in evaluating P's claims. The Regional Office again denied P's claim. P appealed again to the Board. The Board concluded that 'the evidence fails to show the presence of symptomology which would preclude sedentary employment.' The medical record before the Regional Office and Board differed. One of the doctor's entries had been altered to change the language 'Is worse + must stop present type of work' to instead read, 'Is worse + must stop present type of work, or at least [] bend [] stoop lift.' The altered record also contained the additional entry, 'says he is applying for reevaluation of back condition,' which does not appear in the official record on file with the Outpatient Clinic. P sought reconsideration of the Board's 1980 decision. In 1982, the Board affirmed its prior decision based on the same evidentiary record. P also filed a claim for disability benefits from the Social Security Administration (SSA). SSA got the altered version of P's VA record and denied P's claim, repeating in its decision language that appears only in the altered version of P's record. P requested reevaluation in 1994. P has received benefits since August of 1994. In 1997 P discovered that there were two versions of his medical record. P noticed that the medical record attached to his claim adjudication did not match the medical record on file at the DVA hospital. The file at the DVA hospital contained only the original, unaltered document. The DVA conducted an investigation that confirmed that P's medical record had been altered. P challenged the Regional Office's 1977 decision and the Board's 1980 and 1982 decisions as containing clear and unmistakable error (CUE). The Board denied his claim on grounds that the 1977 decision was subsumed by the 1980 and 1982 decisions by the Board. P appealed to the Veterans Court. The Veterans Court affirmed the Board with respect to the 1977 decision and found that it did not have jurisdiction to review the 1980 and 1982 decisions. P timely appealed to this court and argued again that the 1977, 1980, and 1982 decisions contained CUE. P also argued a violation of his due process rights and on and on it went.  P appealed the Board's August 2005 decision to the Veterans Court, challenging the Board's statutory interpretation and making CUE and due process arguments related to the consideration of his nonconforming medical records. In February of 2008, a single-judge panel of the Veterans Court affirmed the Board. Mr. Cushman moved for reconsideration by a full panel. The motion was denied in May of 2008 and judgment was entered in June. In July, P timely appealed the case to this court.