About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

3 Veterans L. Rev. 220 (2011)
Due Process in the Wake of Cushman v. Shinseki: The Inconsistency of Extending a Constitutionally-Protected Property Interest to Applicants for Veterans' Benefits

handle is hein.journals/veter3 and id is 224 raw text is: Due Process in the Wake of Cushman v. Shinseki: The Inconsistency of Extending a Constitutionally-Protected Property Interest to Applicants for Veterans' Benefits Emily Woodward Deutsch and Robert James Burriesci' INTRODUCTION In the case of Cushman v. Shinseki,2 the United States Court of Appeals for the Federal Circuit (Federal Circuit) for the first time addressed whether a Veteran's application for VA disability benefits was a property interest protected by the Due Process Clause of the Fifth Amendment of the United States Constitution (Due Process Clause).3 The case opened a Pandora's Box regarding what type of due process must be afforded to a claimant at differing stages of his or her application for Department of Veterans Affairs (VA) disability benefits. Arguments have been made in support of and against providing a claimant with substantial due process in all circumstances, both before and after the grant of VA benefits. What started with Cushman's proposition that the government failed to fairly apply the existing procedures in his case4 has progressed to a split between whether a claimant is due, at most, an opportunity to confront and cross-examine adverse witnesses' and whether he or she should be bound by the current procedure; in other words, that which is good enough for most is good enough for all, and the minimal gains from affording additional due process protections would be outweighed by the additional societal costs.' ' Emily Woodward Deutsch and Robert James Burriesci are Associate Counsel on Decision Team II at the Board of Veterans'Appeals (Board). 2 576 F.3d 1290 (Fed. Cir. 2009). Id. at 1292. Id. at 1299. Goldberg v. Kelly, 397 U.S. 254, 269 (1970). 6 Gambill v. Shinseki, 576 F.3d 1307, 1313 (Fed. Cir. 2009) (Bryson, J., concurring) (citing Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305 (1985)). 220

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most