## United States Court of Appeals for the Federal Circuit

2008-7129 PHILIP E. CUSHMAN, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Kevin A. Calia , Morrison & Foerster LLP, of San Francisco, California, argued for claimant-appellant. Martin F. Hockey, Jr. , Assistant Director, Commerc ial Litigation Branch, Civil Division, United States D epartment of Justice, of Washington, DC, argued for respondent-appellee. With him on t he brief were Jeanne E. Davidson , Director, and Allison Kidd-Miller , Trial Attorney. Of counsel on the brief were David J. Barrans , Deputy Assistant General Coun sel, and Tracey P. Warren , Attorney, Office of the General Counsel, United States Department of Veterans A ffairs, of Washington, DC. Appealed from: United States Court of Appeals for Veterans Claims Judge Mary J. Schoelen

## United States Court of Appeals for the Federal Circuit

2008-7129

PHILIP E. CUSHMAN, Claimant-Appellant,

v. ERIC K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Appeal from the United States Court of Appeals for Ve terans Claims in 05-3207, Judge Mary J. Schoelen.

__________________________ DECIDED: August 12, 2009

__________________________ Before SCHALL, PLAGER, and PROST, Circuit Judges

. PROST, Circuit Judge

. This case involves an alleged violation of a veteran’s right to due process under the Fifth Amendment to the United States C onstitution, where the medical record on which his service-connected disability clai m was evaluated contained an improperly altered document. In contending that a ve teran 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-c onnected disability has a due process right to fair adjudication of his claim for benefits. We further find that Mr. Cushman’s dueprocess 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. I. BACKGROUND Philip Cushman served in a United States Marine Corps combat infantry battalion in Vietnam during the Vietnam War. While he was fortifying a bunk er in Vietnam, a heavy sandbag fell on Mr. Cushman’s back and dam aged his spine. He was honorably discharged in January of 1970. Mr. Cushman underwent four sp inal surgeries to treat his injury and has received continuous pain medication. In October of 1974, Mr. Cushman filed a disability claim with the Department of Veterans Affairs (“DVA”) at the Portland Regional Office. Following three years of interaction with medical examiners and Adjudi cation Officers at the Regional Office, the Board of Veterans’ Appeals (“Board”) found t hat Mr. Cushman’s injury was service connected, and classified his symptoms as “pronounced” (a grade above “severe”) with “persistent symptoms” and “littl e intermittent relief.” See 38 C.F.R. § 4.71a (1982) (diagnostic code 5293). Mr. Cushman received a 60% disability rating, which is the maximum scheduled rating for a back injury. Mr. Cushman secured a job as a manager at a flooring store. The job required some bending and lifting work, as well as s upervision and paperwork. During his time on the job, Mr. Cushman’s back condition wo rsened. Mr. Cushman avoided sitting and standing at work whenever possible. During his last few months at work he would typically lie flat on his back behind the stor e counter to fill out paperwork and whenever

2008-7129 2it was not necessary to move around. In November of 1976, Mr. Cushman was asked to resign his position at the warehouse due to his inability to perform his job duties. In October of 1976, Mr. Cushman went to the Portland DVA Outpatient Clinic to have his condition reassessed. Records fr om that visit diagnosed him as having a postoperative ruptured interv ertebral disc, with radicu lopathy and degenerative joint disease affecting his lumbar and lumbosacaral spine. In November of 1976, when Mr. Cushman resigned from his job, he returned to the DVA Outpatient Clinic for another assessment. This assessment, dated November15, 1976, was the last entry in Mr. Cushman’s medical record before his files we re sent to the Portland Regional Office. The last comment in the record stated, “I s worse + must stop present type of work.” Mr. Cushman filed a request with the DVA for a total disability based upon individual unemployability (“TDIU”) rating in May of 1977. With his request, Mr. Cushman included a letter from his former empl oyer explaining that Mr. Cushman could not continue to work at the flooring store because he was always lying on his back to do paperwork. The following July, the Regional Office denied Mr. Cushman’s claim without obtaining his medical records. Mr. Cushm an appealed to the Board. In February of 1978, the Board vacated the denial and rem anded the case to the Regional Office with instructions to consider medical evidenc e in evaluating Mr. Cushman’s claims. The Regional Office obtained Mr. Cushm an’s medical records from the DVA Outpatient Clinic, and gave him a new hearing. In November of 1978, the Regional Office again denied Mr. Cushman’s claim. The Regional Office did not discuss any medical evidence in its decision, although Mr. Cushman’s medical file was included in the record. Mr. Cushman appealed again to the Board.

2008-7129 3In April of 1980, the Board affirmed the decision of the Regional Office. Although the Board did not cite any particular evidence on which it relied in making its decision, 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, however, differed from t he medical record on file at the DVA Outpatient Clinic. Namely, one of the doc tor’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, orat least [] bend [] stoop lift .” (emphasis added, brackets indicate illegible or stray marks). The alte red record also contained the additional entry, “says he is applying for reevaluation of ba ck condition,” which does not appear in the official record on file with t he Outpatient Clinic. The alterations appeared in the last, i.e., most recent, doctor’s notes documenting Mr. Cushman’s condition. Mr. Cushman sought reconsideration of t he Board’s 1980 decision. In 1982, the Board affirmed its prior decision based on the same evidentiary record. During this time, Mr. Cushman also fil ed a claim for disability benefits from the Social Security Administration (“SSA”). The SSA requested Mr. Cushman’s medical records from the DVA to consider in determining Mr. Cushman’s eligibility for SSA disability benefits. The DVA sent to the SSA the version of Mr. Cushman’s medical record that was on file wit h the Regional Office, i.e., the altered version. The SSA denied Mr. Cushman’s claim, repeating in its decision language that appears only in the altered version of Mr. Cushman’s record. Mr. Cushman requested reev aluation and a TDIU rating in 1994. He returned to the Outpatient Clinic for anot her assessment of his back condition. Based on the

2008-7129 4medical record of that visit, the DVA found him to be incapable of substantially gainful employment, and granted his TDIU rating. Mr. Cushman has received TDIU benefits since August of 1994. Mr. Cushman first discovered that there we re two versions of his medical record in October of 1997. Mr. Cush man went to the DVA hospital to review his records in preparation for another hearing bef ore the Board, this time seeking an earlier effective date for his TDIU rating. He also reviewed the record from his prior proceedings before the Regional Office and Board. He noticed that the medical record attached to his claim adjudication did not match the medical record on f ile at the DVA hospital. The file at the DVA hospital contained only the original, unaltered document. Mr. Cushman wrote to the DVA about t he discrepancy between the two versions of his medical record. The DVA conducted an investigation that confirmed that Mr. Cushman’s medical record had been altered. In response to Mr. Cushman’s inquiry, the Chief Executive Officer of the Portland Regi onal Office sent Mr. Cushman a letter in which he acknowledged the discrepancy between the two medical records, and explained that the DVA was unable to locate the original (wet in k) record among its files. He also apologized that the DVA was unable to “arrive at a reasonable explanation” for the nonconforming records. He confirmed that the official record is the one without the additional entries. The DVA instructed the Port land Regional Office to destroy all copies of the altered document in Mr. Cushman’s f ile. The Office of Inspector General opened an investigation for fraud, but closed it thr ee weeks later as unsubstantiated, two days after receiving the DVA’s response to the complaint.

2008-7129 5Upon learning of the nonconforming re cords, Mr. Cushman challenged the Regional Office’s 1977 decision, and the Board’s 1980 and 1982 decisions as containing clear and unmistakable error (“CUE”). He argued that those decisions were based on medical records that were improperly altered to understate hi s disability. In February of 1999, the Board denied his cl aim on grounds that the 1977 decision was subsumed by the 1980 and 1982 decisions by t he Board. The Board did not address Mr. Cushman’s argument that the 1980 and 1982 decisions imported the same CUE. Mr. Cushman timely appealed to the Vete rans Court. In No vember of 2001 the Veterans Court affirmed the Board with res pect to the 1977 decision, and found that it did not have jurisdiction to review t he 1980 and 1982 decisions because Mr. Cushman did not properly raise a CUE claim for those decisions. Mr. Cushman timely appealed to this court, and argued again that the 1977, 1980, and 1982 decisions contained CUE. He al so argued that the process used to adjudicate his claims violated his due process rights. During oral argument, this court questioned Mr. Cushman’s counsel about the cons ideration given to the merits of his CUE claims below. This court then asked t he government’s counsel whether the merits of Mr. Cushman’s claim had ever been deci ded, and how he could receive such a hearing. The government’s c ounsel explained that the CUE claims were not decided, and if this court affirmed the Veterans Cour t’s decision, Mr. Cushman would be free to raise those claims before the B oard. In April of 2002, this court summarily affirmed the Veterans Court. In October of 2003, Mr. Cushman moved the Board to reverse its 1980 and 1982 decisions. Mr. Cushman argued that consider ation of the improperly altered medical

2008-7129 6record constituted CUE. He also argued t hat the Board incorrectly interpreted the governing regulations and failed to cons true the term “substantially gainful employment.” In August of 2005, the Boar d ruled that the 1980 and 1982 decisions did not contain CUE because the decisions gav e no indication that the Board relied specifically on the altered document. It wa s therefore not possible to prove that consideration of the altered document was outcome determinative, as required by the CUE standard. The Board also reject ed Mr. Cushman’s arguments regarding the Board’s previous interpretation of the governi ng regulations and statutory construction. Meanwhile, Mr. Cushman filed a civil acti on in the United States District Court for the District of Oregon regarding t he denial of his social securi ty disability claim. The district court remanded Mr. Cushman’s case for further evaluation by the Social Security Office. Mr. Cushman appealed to the United St ates Court of Appeals for the Ninth Circuit. In April of 2006, t he Ninth Circuit reversed the district court and remanded his disability claim for immediate payment of benefits. The Ninth Circuit also found that Mr. Cushman’s medical record had been “fraudulent ly altered” and remanded the claim to determine whether he was entitled to retroacti ve disability benefits fr om an earlier date. Cushman v. Soc. Sec. Admin. , 175 Fed. Appx. 861, 862 (9th Cir. 2006). In August of 2007, the Social Security Administrati on Appeals Council (“Council”) reconsidered Mr. Cushman’s claim and found that he had been c ontinuously disabled since February of 1976. The Council extended his benefits accordingly. With respect to his veteran’s clai m, Mr. Cushman appealed the Board’s August 2005 decision to the Veterans Court, challengi ng the Board’s statutory interpretation and making CUE and due process arguments rela ted to the consideration of his

2008-7129 7nonconforming medical records. In Febr uary of 2008, a single-judge panel of the Veterans Court affirmed the Board. Mr. Cu shman moved for reconsideration by a full panel. The motion was denied in May of 2008 and judgment was entered in June. In July, Mr. Cushman timely appealed the case to this court. II. THE GOVERNMENT’S POST-ARGUMENT MOTION FOR VOLUNTARY REMAND As a threshold matter, we consider the government’s motion for voluntary remand, submitted after oral argument before this court. During oral argument, the panel questioned the government atto rney as to why the DVA was reluctant to give Mr. Cushman a new hearing without the pres ence of the altered document. The government attorney indicated a willingness to reassess its position, and asked for two weeks in which to consider whether the parties could resolve the matter. Following oral argument, the panel suspended proceedings in the case for thirty days in order to allow the parti es to reach a settlement. At the conclusion of the thirtyday period, the government informed the panel that no se ttlement was reached. The panel resumed proceedings. The following w eek the government submitted a motion for voluntary remand to allow the Board to reconsider its 1980 and 1982 decisions and in the alternative to send the case to “mandatory mediation.” Mr. Cushman opposed the motion, arguing that voluntary remand would not provide the requested relief and would preclude Mr. Cushman from petitioning for attor neys fees as a prevailing party. He also argued that the government previously opposed mediation and should not now be allowed to change its position. The government’s motion for voluntary remand was accompanied by a proposed order stating only that the case was rem anded “to enable the Board to reconsider its

2008-7129 81980 and 1982 decisions.” We find that mere voluntary reconsideration does not guarantee Mr. Cushman adequate relief. The te rms of the proposed order give no assurance that Mr. Cushman would receive a new hearing, that t he determination would be reviewed de novo, or that the proceedings would be conducted wit hout the presence of the altered document. Although the government represents in its supporting memorandum that it will pursue such process, we have no authority to enforce those representations. Moreover, the government’s representati ons do not bind the Board. We therefore must deny t he government’s motion for vo luntary remand, even though the government contends that granting the motion would provide Mr. Cushman the alternate relief that he seeks. We also deny the government’s alter native request for “mandat ory mediation.” Mr. Cushman did not oppose mediation initially . The government di d. We decline to compel Mr. Cushman to mediation at this junc ture, after the briefs have been filed, oral arguments have been heard, and t he thirty-day suspension to allow settlement has lapsed. We now turn to the merits of Mr. Cushman’s appeal. III. DUE PROCESS This court reviews legal determinations of the Veterans Court de novo. Prenzler v. Derwinski , 928 F.2d 392, 393 (Fed. Cir. 1991). If th e decision of the Veterans Court is not in accordance with law, this court has authority to modify, reverse, or remand the case as appropriate. 38 U.S.C. § 7292(e)(1). This court has jurisdiction to interpret constitutional provisions “to the extent presented and necessary to a decision,” id. § 7292(c), and authority to “decide all relevant questions of law, including interpreti ng constitutional and statutory provisions.”

2008-7129 9Id. § 7292(d)(1). This court has jurisdicti on and authority to consid er a free-standing constitutional issue independently from the CUE framework typically applicable to appellate review of veterans’ claims. See In re Bailey , 182 F.3d 860, 869-70 (Fed. Cir. 1999). Mr. Cushman asserts that he was denied a full and fair hearing on the factual issues of his claim due to t he presence of the altered medical record. Mr. Cushman therefore raises a genuine issue of proc edural due process under the Fifth Amendment to the Constitution. Cf. Pierre v. West , 211 F.3d 1364, 1367 (Fed. Cir. 2000). We find that this court has jurisdiction to resolve t he due process issue in deciding his claim. In order to allege that the denial of his claim involved a violation of his due process rights, Mr. Cushman must first pr ove that as a veteran alleging a serviceconnected disability, he has a constitutional ri ght to a fundamentally fair adjudication of his claim. The right to due pr ocess of applicants for veterans’ benefits is an issue of first impression for this court. The Due Process Clause of the Fifth Amendment guarantees that an individual will not be deprived of life, liberty, or property without due pr ocess of law. U.S. Const. amend. V. Due process of law has been interpreted to include notice and a fair opportunity to be heard. See Mullane v. Cent. Hanover Tr. Co. , 339 U.S. 306, 313 (1950). To raise a due process question, t he claimant must demonstrate a property interest entitled to such protections. Richard v. West , 161 F.3d 719, 723 (Fed. Cir. 1998). It is well established that disability benef its are a protected property interest and may not be discontinued without due process of law. See Atkins v. Parker , 472 U.S.

2008-7129 10115, 128 (1985); Mathews v. Eldridge , 424 U.S. 319, 332 (1976). The Supreme Court has not, however, resolved the specific questi on of whether applicants for benefits, who have not yet been adjudicated as entitled to them, possess a property interest in those benefits. See Lyng v. Payne , 476 U.S. 926, 942 (1986); Walt ers v. Nat’l Ass’n of Radiation Survivors , 473 U.S. 305, 312, 320 n.8 (1985); Peer v. Griffith , 445 U.S. 970 (1980) (Rehnquist, J., dissenting). The Supreme Court has, however, offered guidance relevant to our resolution of this question by explaining, “‘[t]o have a proper ty interest in a benefit, a person clearly must have more than an abstract need or desire’ and ‘more than a unilateral expectation of it. He must, in stead, have a legitimate claim of entitlement to it.’” Town of Castle Rock, Colo. v. Gonzales , 545 U.S. 748, 756 (2005) ( quoting Bd. of Regents of State Colls. v. Roth , 408 U.S. 564, 577 (1972)). The Court has also clarified that “a benefit is not a protect ed entitlement if government official s may grant or deny it in their discretion.” Id. at 756 (citing Ky. Dep’ t of Corr. v. Thompson , 490 U.S. 454, 462-63 (1989)). In Richardson v. Perales , the Supreme Court strongl y implied that certain due process protections are app licable to the adjudicative administrative proceedings associated with social security disability claim hearings. 402 U.S. 389, 401-02 (1971). The Court has also noted “that the benefits at stake in DVA proceedings, which are not granted on the basis of need, are more akin to the Social Security benefits involved in

2008-7129 11Eldridge than they are to the welfare payments” at issue in Goldberg

. 1 Nat’l Ass’n of Radiation Survivors , 473 U.S. at 333. We believe the protected property interests implicated in social security proceedings provide a helpful analogy in assessing the property interests of veteran applicants fo r service-connected disability benefits. Like the statutorily created right of an eligible recipi ent to social security benefits, entitlement to veteran’s benefit s arises from a source that is independent from the DVA proceedings themselves. 38 U.S.C. § 1110 (2000) (providing for wartime disability compensation); id. § 1121 (providing for wartime death compensation for designated heirs and dependents); id. § 1131 (providing for peacetime disability compensation); id. § 1141 (providing for peacetime death co mpensation for designated heirs and dependents). These statutes provide an abs olute right of benefits to qualified individuals. Although the due process question is one of first impression for this court, the Ninth Circuit has previously held that “ both applicants for and recipients of [serviceconnected death and disability] benefits possess a constitutionally protected property interest in those benefits.” Nat’l Ass’ n of Radiation Survivors v. Derwinski , 994 F.2d 583, 588 n.7 (9th Cir. 1992). Additionally, sev en of our sister ci rcuits have addressed similar questions concerning st atutorily mandated benefits. “E very regional circuit to

1 The Court has also commented that recipients in Goldberg , who had not yet shown that they were withi n the statutory terms of eligib ility, “had a right to a hearing at which they might a ttempt to do so.” Roth , 408 U.S. at 577 (commenting on Goldberg v. Kelly , 397 U.S. 254 (1970)). The right to a hear ing necessarily implies the right to a fair hearing. See, e.g. , Mullane , 339 U.S. at 315 (“[P]rocess wh ich is a mere gesture is not due process.”). As such, Roth suggests that at least some due process protections attach to procedures for determining eligib ility for benefits even outside of the social security context.

2008-7129 12address the question . . . has concluded t hat applicants for benef its, no less than benefits recipients, may possess a property inte rest in the receipt of public welfare entitlements.” Kapps v. Wing , 404 F.3d 105, 115 (2d Cir. 2005); see, e.g. , Kelly v. R.R. Ret. Bd. , 625 F.2d 486, 489-90 (3d Cir. 1980) (holding an applicant for a disabled child’s annuity was denied due process); Mallette v. Arlington Cnty. Employees’ Supplemental Ret. Sys. II , 91 F.3d 630, 634-35 (4th Cir. 1996) (conc luding that a statute’s mandatory language gives an applicant a property interest in retirement benefits which triggers procedural due process prot ection); Hamby v. Neel , 368 F.3d 549, 559-60 (6th Cir. 2004) (affirming that eligible applicants for M edicaid benefits have a legitimate claim of entitlement which invokes procedural due process); Wright v. Califano , 587 F.2d 345, 354 (7th Cir. 1978) (“[Benefit] denials do not nec essarily deserve less due process than terminations.”); Daniels v. Woodbury Cnty., Iowa , 742 F.2d 1128, 1132 (8th Cir. 1984) (refusing to distinguish between applic ants and recipients when analyzing the due process requirements for determining eligibilit y for Iowa welfare benefits); Gonzalez v. Sullivan , 914 F.2d 1197, 1203 (9th Cir. 1990) (“An app licant for social security benefits has a property interest in thos e benefits.”); Ressler v. Pierce , 692 F.2d 1212, 1214 (9th Cir. 1982) (affirming that applicants for federal rent subsidies are entitled to due process protection); Griffeth v. Detrich , 603 F.2d 118, 119 (9th Cir. 1979) (holding that applicants for welfare benefits had a property interest or legitimate claim of entitlement and were entitled to due process to prot ect that interest); see also Cook v. Principi , 318 F.3d 1334, 1352 (Fed. Cir. 2002) (en banc) (Gajarsa, J. dissenting) (c oncluding that the statutory mandate of veter an disability benefits entitles applicants to procedural due process).

2008-7129 13In response, the government cites three cases in which circuit courts found that an individual did not obtain a pr otected property interest merely by applying for benefits. See Banks v. Block , 700 F.2d 92 (6th Cir. 1983) (declining to find a property interest in food stamp benefits after expiration of t he eligibility period); Holman v. Block , 823 F.2d 56 (4th Cir. 1987) (same) ; DeJournett v. Block , 799 F.2d 430 (8th Cir. 1986) (finding that an applicant had no protect ed property interest in a di scretionary loan). The cited cases, however, are distinguishable from the present case. Banks and Holman deal with the rights of an applicant who is no longer eligible for benef its. DeJournett deals with the denial of a discretionary benefit. As cited above, the respective circuits of these three cases have found that due process atta ches in the context of nondiscretionary benefits. Veteran’s disability benefits are nondiscret ionary, statutorilymandated benefits. A veteran is entitled to disability benefits upon a showing that he meets the eligibility requirements set forth in the governing statutes and regulations. We conclude that such entitlement to benefits is a pr operty interest protected by the Due Process Clause of the Fifth Amendment to the United States Constitution. IV. MR. CUSHMAN’S DUE PROCESS CLAIM We now turn to the issue of whetherMr. Cushman acquired a due process right in his claim for benefits that was violated by the process he received from the Portland Regional Office, Board, and Veterans Court. 2

2 We note that Mr. Cushman chall enged the 1977 denial of his claim promptly upon discovering the nonconforming versi ons of his medical record. It is not disputed that his free-standing due proc ess claim was timely raised.

2008-7129 14When Mr. Cushman was injured while servi ng in a United States combat infantry battalion in Vietnam, he acquired a legitimate cl aim of entitlement to veteran’s disability benefits under 38 U.S.C. § 1110 et seq. Applications for benefits cannot be denied unless the DVA factually dete rmines that the applicant does not suffer from a disability originating from service. Id. The government asserts that even if due process attaches to veteran’s benefits, Mr. Cushman received adequate process, ci ting his multiple hearings before the Regional Office and appeals before the Board, Veterans Court, and this court. The sheer number of times that Mr. Cushman has appealed the denial of his claim, however, is not relevant to the question of whether he has ever received a fair hearing. The initial determination of Mr. Cushman’s TDIU cl aim was tainted by the presence of an improperly altered document. T hat initial determination has been subject to nothing but deferential review, on a record that still contained the alter ed document. The source of the fundamental unfairne ss that tainted the initial eval uation of Mr. Cushman’s claim was never removed from any prior proceedi ngs. Therefore, none of the subsequent appeals and rehearings that Mr. Cushman received satisfied his due process right to a fair hearing on the merits of his disability claim. The government argues that the question of what process is due does not turn upon the allegations of an individual claim ant. The government cites language from National Association of Radiation Survivors , stating that “a process must be judged by the generality of cases to which it applies, and therefore, process wh ich is sufficient for the large majority of a group of claims is by constitutional definition sufficient for them all.” 473 U.S. at 330. The government r easoned in its brief, and elucidated in oral

2008-7129 15argument, that because the veteran’s cl aims procedures provide due process “generally,” there is no violat ion when due process is denied on the basis of an error in an individual case. The government’s positi on is predicated on a mi sinterpretation of National Association of Radiation Survivors

. The challenger in National Association of Radiation Survivors alleged that the $10 fee limitation for attorneys representing ve terans in disability cases denied him a meaningful opportunity to obtain legal counsel. Id. at 307. The Court reasoned that the statutorily imposed fee limitation did not violate due pr ocess because a majority of veterans are able to effectively pursue their claims without counsel. Id. at 330. Unlike the veteran in National Association of Radiation Survivors , Mr. Cushman does not challenge an entire st atutory scheme. He does not challenge the adequacy of any procedures in place for filing a claim fo r veteran’s benefits. He does not challenge the constitutionality of the CUE fram ework provided in 38 U.S.C. § 7111. 3 Mr. Cushman instead argues that the government failed to fa irly apply the existing procedures in his case due to the introducti on and consideration of improperly altered medical reco rds. 4 We agree.

3 Mr. Cushman does not challenge the cons titutionality of CUE itself, but he does assert that the burdens of proof applicable to CUE clai ms do not apply to his freestanding due process claim. We agree that t he burdens of proof typically applicable to due process claims also apply to such claims raised in the context of veteran’s benefits.

4 Mr. Cushman also raises allegati ons concerning unpublished DVA policies aimed at reducing TDIU ratings. Such a llegations are entirely speculative and Mr. Cushman can show no nexus between such po licies and the denial of his claim. We therefore confine our due process analysis to the presence of alte red documents in Mr. Cushman’s medical record.

2008-7129 16The procedural framework for adjudicating claims must be suffi cient for the large majority of a group of claims in order to be constitutionally adequate for all. See Nat’l Ass’n of Radiation Survivors , 473 U.S. at 330. A fundamentally fair adjudication within that framework, however, is constitutionally required in all cases, and not just in the large majority. Cf. Romano v. Oklahoma , 512 U.S. 1, 12-13 (1994) (explaining that the admission of improper evidence is a denial of due process where it infects the proceedings with fundamental unf airness.) The government ’s application of the generality standard to Mr. Cushman’s clai m is therefore misdirected. The presentation of impr operly altered material evidence has been found to constitute a due process violati on in analogous cases. See, e.g. , Grillo v. Caughlin , 31 F.3d 53, 56-57 (2d Cir. 1994) (f inding that the presentation of an altered urinalysis record was a violation of due process in t he criminal context); Stemler v. City of Florence , 126 F.3d 856, 872 (6th Cir. 1997) (applying Grillo in the civil context). Fraudulent intent on the part of t he presenter of the false evi dence is not required to find a due process violation. See Brady v. Maryland , 373 U.S. 83, 87 (196 3) (finding that the state’s inadvertent but prejudicial suppression of favorable evidence was a due process violation). Alterations of evidenc e are material for due process purposes if there is a “reasonable probability of a different result” absent those alterations. Cf. Kyles v. Whitley , 514 U.S. 419, 434 (1995). We find, in this case, that the present ation of the altered medical document was indeed prejudicial. The Regional Office wa s instructed by the Board on remand to consider medical evidence in determining Mr. Cushman’s employability. The altered document was the only piece of medical ev idence that addressed Mr. Cushman’s then

2008-7129 17current employability. The subs tance of the alterations spok e directly to the type of work that Mr. Cushman could perform in light of his progressing disability. Although, as the government argues, the Regional Office and Board did not discuss which evidence was determinative, any reasonable fact fi nder would have at least considered the altered medical record under these circum stances. The content of the altered document indicated that Mr. Cushman was more employable than did the content of the unaltered document. We find that there is a reasonable probability that the result of Mr. Cushman’s TDIU hearing would have been differ ent in the presence of the unaltered document instead of the altered document. Accordingly, consideration of the altered document inst ead of the unaltered document in adjudicating Mr. Cush man’s claim was a violation of his constitutional right to a fair hearing. Mr. Cushman is entitl ed to a new hearing without the presence of the altered document. We therefore vacate t he decision of the Veterans Court and remand the case with instructions to further rem and to the Board for a de novo determination of Mr. Cushman’s 1977 TDIU request. V. MR. CUSHMAN’S CUE CLAIMS In addition to raising a due process claim, Mr. Cushman raises CUE claims relating to the statutory em ployability standard applied to his determination, as well as the consideration of his altered medical record. 5 Mr. Cushman argues that his CUE claims compel this court to reverse the dec ision of the Veterans Court and issue an

5 Mr. Cushman’s allegations conc erning the unpublished DVA policies discussed in note 4, above, are also raised in his CUE claims and we similarly reject such allegations.

2008-7129 18order directing the Veterans Court to grant Mr. Cushman a TDIU rating effective May 3, 1977.Mr. Cushman’s CUE arguments challenging the consideration of his altered medical record and the statutory construc tion and interpretation of the employability standard applied to his TDIU claim fall within the scope of this court’s review under 38 U.S.C. §§ 5109 and 7292. CUE is a “very rare and specific kind of error.” 38 C.F.R. § 20.1403(a). To establish CUE, an appellant must prove (1) eitherthe correct facts, as they were known at the time, were not before the Board, orthe statutory or regulatory provisions in effect at the time of the decision were incorrectly applied, and (2) the alleged error was outcome determinative. Id. Mr. Cushman argues that cons ideration of the altered medical record constitutes CUE because the correct facts, as they were known at the time, were not before the Board. We agree with Mr. Cush man that the correct facts as known were not before the Board. Mr. Cushman is unable to show, how ever, whether this error was outcome determinative because the Boar d did not specify the evidence on which it relied in denying Mr. Cushman’s claim. A remand to the Board for a more appropriate explanation of its reasoning is nonetheless unnecessary in view of our resolution of Mr. Cushman’s due process claim and the relief awarded in Part IV above. With respect to Mr. Cushman’s employ ability standard argument, we find that the Board’s 1980 and 1982 statutory cons truction and interpretation of the relevant standard did not constitute CUE based on the altered medical record. Mr. Cushman alleges that the 1980 and 1982 Board decisions applied the wrong employability standard in denying his claim for TDIU. Mr. Cu shman’s claim for TDIU under 38 C.F.R. § 4.16 requires him

2008-7129 19to demonstrate that his injury precludes him from securing “substantially gainful employment.” “Unemployability” under 38 C. F.R. § 4.18 requires an individual to satisfactorily show preclusion from all further employment. Although the Board uses TDIU language and m entions the “substantially gainful employment” standard in its discussion, the sentence in which the Board states its ultimate holding uses only the word “unempl oyable.” Mr. Cushman argues that this language indicates that, notwithstanding the m ention of the correct standard elsewhere in the discussion, the ultimate decision of the Board was actua lly based on the wrong standard. The Board noted in its discussion that Mr. Cushman completed an electronics course and was doing electronics repair work fr om home at the time of the decision. The Board considered this evidence that “sedentary employment was not precluded.” Mr. Cushman argues that his repair work consisted of odd jobs , earning him about $100 per month (less than 25% of the poverty level at t he time), and can hardly be considered “substantially gainful .” Mr. Cushman argues that neither the Board nor the Veterans Court construed the term “substant ially gainful employment,” which was a legal error resulting in application of an incorrect statutory standard. Although the Board uses the term “unempl oyable” in its decision, Mr. Cushman has not shown that the Boar d actually employed the wrong standard. The majority of the Board’s explanation for its decision uses language from the correct section of the statute. It is only the final sentence that uses language from the wrong section. The choice of wording appears to have been the result of a clerical error or the use of stock language from prior decisions, rather than substantive error.

2008-7129 20We also find Mr. Cushman’s argument that the Board faile d to construe the phrase “substantially gainful employment ” to be without consequence. The Board found, in light of the alter ed medical document, that Mr. Cushman was not incapable of substantially gainful employment because he had electronics training and his condition did not preclude him from sedentary employ ment. Whether Mr. Cushman’s actual electronics work was substantially gainful is irrelevant. The DVA ma y find that a veteran is physically capable of substantially gainf ul employment even if he is not currently engaged in such employment. Mr. Cushman has thus failed to show that the outcome of his case would have been different if t he Board construed the term as he proposes. We therefore deny Mr. Cushm an’s request for an order direct ing the grant of an earlier TDIU effective date. Mr. Cushman is free to argue to the Board or Regional Office on remand that his service-connected disabilit y precluded electronics work that was substantially gainful. VI. CONCLUSION Mr. Cushman demonstrated that his injury meets the service connection requirement of 38 U.S. C. § 1110. Mr. Cushman has a constitutional right to have his claim for veteran’s disability benefits dec ided according to fundamentally fair procedures. We find that this right was vi olated due to the presenc e 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 whet her Mr. Cushman was unable to secure a

2008-7129 212008-7129 22 substantially gainful occupation between May 3, 1977 and August 31, 1994, because of his service-connected disability. COSTS Costs are awarded to Appellant. VACATED AND REMANDED