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Administrative Law Keyed to Schwartz
Cushman v. Shinseki
Citation:
576 F.3d 1290 (2009)Facts
Philip Cushman served in a Marine Corps combat infantry battalion in Vietnam where he suffered a back injury when a heavy sandbag fell on his spine. After discharge in 1970, he underwent four spinal surgeries and received continuous pain medication. In 1974, he filed a disability claim and eventually received a 60% disability rating. By 1976, his condition worsened to the point where he had to resign from his job at a flooring store because he could only work while lying on his back. In 1977, Cushman applied for TDIU benefits. His claim was denied multiple times by the Regional Office and the Board. In 1997, Cushman discovered that his medical records had been altered to change a doctor’s note from “Is worse + must stop present type of work” to “Is worse + must stop present type of work, or at least [] bend [] stoop lift.” The DVA confirmed the alteration but could not explain how it occurred. Cushman’s TDIU benefits were eventually granted effective August 1994, but he sought an earlier effective date based on the improper consideration of the altered document.
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