DUE PROCESS AND THE AMERICAN VETERAN: WHAT THE CONSTITUTION CAN TELL US ABOUT THE VETERANS‘ BENEFITS SYSTEM

There are currently over 23 million veterans in the United States. Last year alone, the United States paid over $41 billion in benefits related to injuries or death associated with veterans’ military service. This number will only increase as the nation deals with the injuries that the men and women who serve in the military return home from missions in places such as Iraq, Afghanistan, Libya and elsewhere. This commitment to veterans is long standing and is perhaps best captured by President Lincoln’s statement in his second inaugural address that the country has an obligation “to care for him who shall have borne the battle and for his widow and his orphan.”Given this national commitment to veterans, it is odd that until 1988, veterans who believed that they were wrongly denied benefits to which they were entitled had no recourse outside of an administrative process. There was no judicial review. This changed with the Veterans Judicial Review Act of 1988 (the “VJRA”). In the VJRA Congress created an Article I court, today called the United States Court of Appeals for Veterans Claims (the “CAVC”). This Court is an appellate body independent of the Department of Veterans Affairs. As Congress recently recognized, the CAVC is the busiest federal appellate court in terms of cases decided per judge. Decisions of the CAVC are reviewed by the United States Court of Appeals for the Federal Circuit.Congress did not, however, replace the administrative system in which veterans are awarded benefits. That system administered by the Department of Veterans Affairs (the “VA”), the second largest cabinet agency, remains in place. Instead, it grafted judicial review onto that system. The interesting thing is that, as the Supreme Court recognized as recently as March of this year, the administrative is purportedly one that is non-adversarial and pro-claimant. Thus, the system by which veterans are awarded benefits is one that is an amalgam of a non-adversarial administrative process followed by a traditional, adversarial judicial review process.This Article concerns a recent decision of the Federal Circuit, Cushman v. Shinseki. In Cushman, the Federal Circuit held that applicants for veterans’ benefits have protected property interests entitling them to the protections of the Due Process Clause. The Article does not critique Cushman. Rather, it takes that decision as correct. Instead, the Article considers the potential impact that decision has on a process that affects so many Americans.Section I describes the current structure by which veterans’ benefits are awarded and reviewed. An understanding of that structure, and how it was assembled, is critical to an appreciation of Cushman’s impact. After describing the relevant features of the benefits system, Section II then discusses Cushman and decisions of the Federal Circuit and the CAVC applying that case’s rule.Sections III and IV turn to Cushman’s implications. Section III discusses the ways in which Cushman has the potential to alter the functions of the various actors in the process, including the VA adjudicators, the CAVC and the Federal Circuit. Cushman has the potential to affect how each level of the process of adjudication and review of benefits determinations is conducted. In addition, Section III considers how Cushman could affect both how the procedures of the system are developed as well as how veterans approach their claims. Section IV turns to a more conceptual matter. Specifically, it considers what Cushman and its holding reveal about the fundamental nature of the system by which veterans’ benefits determinations are made. Cushman forces one to address the critical question of whether the VA administrative system remains truly non-adversarial. That basic question remains a controversial one. Cushman’s due process holding both reveals the uncertainty in the area as well as provides an opportunity to address this critically important matter head-on. Section V is a brief conclusion, including some preliminary thoughts for ways to improve the system suggested by reflections on Cushman.