*1350Dissenting opinion filed by
Circuit Judge GAJARSA,in which Chief Judge MAYER and Circuit Judge PAULINE NEWMAN join.
I respectfully dissent. In my view, a breach of the duty to assist a veteran by failing to provide a proper medical examination vitiates the prior decision of the regional office (“RO”) for purposes of direct appeal. The duty to assist is an integral part of the pro-claimant, non-adversarial claims adjudication process of the Department of Veterans Affairs (“VA”). Congress expressly stated that the VA must “fully and sympathetically develop the veteran’s claim to its optimum before deciding it on the merits.” H.R. Rep. No. 100-963 at 13, reprinted in 1988 U.S.C.C.A.N. 5782, 5795; see also 38 U.S.C. § 5107(a) (1994) (“The Secretary shall assist such a claimant in developing the facts pertinent to the claim.”), amended by 38 U.S.C. § 5103A (2000) (“Duty to assist claimants”); 38 U.S.C. § 5103 (2000) (“Notice to claimants of required information and evidence”). Breaches of this critical duty compel us to toll the finality of VA decisions, as we held in Hayre v. West, 188 F.3d 1327, 1334 (Fed.Cir.1999), which the majority today overrules, or to declare such a breach a clear and unmistakable error. This would ensure that the VA’s duty to assist claimants does not become a hollow slogan.
In the veterans’ uniquely pro-claimant system of awarding benefits, systemic justice and fundamental considerations of procedural fairness are critical, Hayre, 188 F.3d at 1334 (citing S.Rep. No. 101-126 at 294, reprinted in 1989 U.S.C.C.A.N. 1469, 1700), which I develop below. This is because, as Congress recognized, in most cases before the RO the veteran is not represented by counsel or a veterans service organization and representation at the Board of Veterans’ Appeals (“Board”) is discouraged. As a result, a veteran’s ability to ensure that a fair and proeedurally correct decision has been reached on his or her claim is limited; so too is his or her ability to make a well-informed choice whether to accept or appeal a decision. See S.Rep. No. 101-126 at 294, reprinted in 1989 U.S.C.C.A.N. 1469, 1700. Thus, VA decisions on records that are less than thoroughly and adequately prepared may go unchallenged and the veteran will lose years of earned benefits that, but for the VA’s breach of its duty to assist, he or she would have collected. In an adversarial system, it may be appropriate to dismiss a claimant who does not immediately challenge a decision. But in a paternalistic system, where a claimant is led to believe that his or her claim is being fairly and accurately decided to afford him or her the fullest compensation he or she is due, it is readily apparent why a decision may not be promptly challenged. The VA is charged with the development of the merits of a claim and acts as final adjudicator as well; there must be a remedy when it fails in its responsibility. To allow the organization to default in its development of a claim and then to adjudicate it without the possibility of challenge is an injustice.
The question raised here is whether a claimant should be denied an opportunity “to collaterally challenge a VA decision where the veteran later discovers that the VA breached its duty to assist.” Ante, at 1338. The majority says no such opportunity exists, for two reasons: first, “[principles of finality and res judicata apply to agency decisions that have not been appealed and .... [u]nless otherwise provided by law, the cases are closed and the matter is thus ended,” ante, at 1336 -1337 (citing Astoria Fed. Savs. & Loan Ass’n v. Solimino, 501 U.S. at 107-08, 111 S.Ct. 2166; Routen v. West, 142 F.3d 1434, 1437 (Fed.Cir.1998)); and second, “[t]he statutory scheme provides only two exceptions *1351to the rule of finality [which do not apply to Cook and Hayre],” ante, at 1337.
I recognize the importance of the rule of finality; however, enforcement of that policy must be circumscribed by constitutional due process and tempered by fairness and equity.1 “Although administrative estop-pel is favored as a matter of general policy, its suitability may vary according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures.” Astoria, 501 U.S. at 109-10, 111 S.Ct. 2166. Thus, where breaches of the statutory duty to assist result in denials of benefits, draconian application of the rule of finality is tantamount to a denial of due process. Because such breaches impose an unconstitutional restraint on an individual’s property right, the rule of finality is inappropriate here.
I shall first explain why claimants for, as well as recipients of, veterans’ benefits have property rights, then identify my disagreements with the majority’s analysis, and finally explain why I believe a breach of the statutory duty to assist veterans imposes an unconstitutional restraint on individual property.
A.
According to Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), to have a property interest in a government benefit, “a person clearly must have more than an abstract need or desire for [the benefit]. He [or she] must have more than a unilateral expectation of it. He [or she] must, instead, have a legitimate claim of entitlement to it.” Id. at 577, 92 S.Ct. 2701. Entitlements derive from “an independent source such as state law,” that is, statutes or regulations “that secure certain benefits and that support claims of entitlements to those benefits.” Id. It is well established that recipients of statutory entitlements such as Social Security disability benefits have a property interest protected by the Due Process Clause of the Fifth Amendment. See Mathews v. Eldridge, 424 U.S. 319, 332, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“[T]he interest of an individual in continued receipt of [Social Security disability] benefits is a statutorily created property interest protected by the Fifth Amendment.”) (citing Richardson v. Belcher, 404 U.S. 78, 80-81, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971); Richardson v. Perales, 402 U.S. 389, 401-402, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Flemming v. Nestor, 363 U.S. 603, 611, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); cf. Arnett v. Kennedy, 416 U.S. 134, 166, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (Powell, J., concurring in part); Roth, 408 U.S. at 576-78, 92 S.Ct. 2701; Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Goldberg v. Kelly, 397 U.S. 254, 261-62, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970)). For the same reasons property interests were found in these cases, a veteran’s interest in the continued receipt of *1352service-connected death and disability benefits is also a property interest. The statutory entitlement to such benefits is set forth in 38 U.S.C. §§ 1110, 1121, 1131, and 1141, and these sections provide an absolute right to benefits to qualified individuals. 38 U.S.C. § 1110 (2000) (providing for wartime disability compensation); 38 U.S.C. § 1121 (2000) (providing for wartime death compensation for designated heirs and dependents); 38 U.S.C. § 1131 (2000) (providing for peacetime disability compensation); 38 U.S.C. § 1141 (2000) (providing for peacetime death compensation for designated heirs and dependents).
Applicants for service-connected death and disability benefits, as distinct from recipients threatened with total or partial termination, also have a property interest in the receipt of those benefits. In Walters v. Nat’l Assoc, of Radiation Survivors, the Supreme Court considered whether “a statutory fee limitation, as it bears on the [veterans’ benefits system] in operation, deprives a rejected claimant or recipient of ‘life, liberty, or property, without due process of law' by depriving him of representation.” 473 U.S. 305, 320, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985) (quoting U.S. Const, amend. V). Although the Supreme Court did not rule on the extent to which applicants for government benefits have property rights in their statutory entitlements, the Court analyzed the rights to veterans’ benefits of the applicants together with the recipients as a statutorily created property interest protected by the Due Process Clause. Id. The First, Third, Seventh, and Ninth Circuits have held that the Due Process Clauses apply to applicants seeking property interests. See, e.g., Ressler v. Pierce, 692 F.2d 1212, 1214-16 (9th Cir.1982) (applicant for federal rent subsidies); Kelly v. R.R. Retirement Bd., 625 F.2d 486, 489-90 (3d Cir.1980) (applicant for disabled child’s annuity); Griffeth v. Detrich, 603 F.2d 118, 120-22 (9th Cir.1979) (applicants for general relief program); Wright v. Califano, 587 F.2d 345, 354 (7th Cir.1978) (applicant for social security benefits); Raper v. Lucey, 488 F.2d 748, 752 (1st Cir.1973) (applicant for driver’s license). But see Eidson v. Pierce, 745 F.2d 453, 460 (7th Cir.1984) (ruling that holders of federal housing subsidies had no property interest because the owners of those units had complete discretion to turn away individual subsidy-holders for any reason or for no reason at all). These courts have reasoned that claimants, just like recipients threatened with termination for alleged ineligibility, have a property interest because of their statutory entitlement to benefits if they meet the substantive requirements.
For veterans basic entitlement to disability compensation derives from two statutes, both found in title 38, sections 1110 and 1131 — the former relating to wartime disability compensation and the latter relating to peacetime disability compensation. Both statutes provide for compensation with the following words: “For disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted ... the United States will pay to any veteran thus disabled ... compensation.... ” 38 U.S.C. §§ 1110, 1131 (2000). Here, Cook and Hayre, who meet the threshold eligibility requirements of 38 U.S.C. § 1110, are entitled to procedural due process by virtue of the statutory mandate of the program and the VA’s policy and practice in the administration of the veterans’ benefits program. It is common ground that a statute declaring that veterans meeting certain eligibility criteria will receive a service-connected benefit secures the benefit for those veterans, just as a blanket of common law rules secures more traditional forms of private property for individuals. See Roth, 408 U.S. at 577, 92 S.Ct. 2701. As discussed below, no form of “new prop*1353erty” is more clearly earned by the applicant, who received this claim of entitlement to benefits in exchange for service given to his or her country.
Correlatively, the fact that only those who meet specified criteria are entitled to the benefit does not mean that due process is inapplicable until eligibility has been conclusively proven, because this approach would deny the very procedures needed to demonstrate that a property interest exists in the first place. See id. (“[Rjecipi-ents in Goldberg v. Kelly ... had not yet shown that they were, in fact, within the statutory terms of eligibility. But we held that they had a right to a hearing at which they might attempt to do so.”). Thus, while at the application stage of the proceedings neither Cook nor Hayre had been administratively adjudged entitled to receive benefits under the regulatory scheme, an applicant for veterans’ benefits nonetheless possesses a property interest of sufficient magnitude to invoke the protection of the Fifth Amendment’s Due Process Clause. The property interest is not that benefits have been previously received, but the existence of statutory provisions creating the right to a remedy and defining the terms under which it can be obtained. By establishing substantive standards for qualification, the regulations governing the veterans’ benefits system create a legitimate claim the applications of Cook and Hayre will not be denied unless the VA factually determines that they do not suffer from a disability originating from service. Accordingly, their statutory entitlement to benefits constitutes a protected property right.
B.
By focusing primarily on the “red herring” finality issue, the majority avoids application of the interest-balancing test normally applied in due process cases. I understand the majority to imply two basic arguments in dismissing the arguments of Cook and Hayre. The first is to suggest that no remedy is required when breaches of the statutory duty to assist — such as the omission of a complete and thorough medical examination for Cook — are involved. The second is that the affirmatively misleading notice sent to Hayre sufficed to adequately protect veterans’ interests in any case, because veterans can be presumed to know the law regarding the veterans’ benefits system and their right to appeal.
In my view, the majority’s fixation on finality creates a conceptual confusion in identifying the constitutional deprivation present in these cases. In traditional cases arising under the Due Process Clause of the Fifth Amendment, governmental confiscation of property is not difficult to recognize: An individual possesses property and the Government’s action deprives the individual of it. Where “new property” interests — that is, statutory entitlements — are involved, however, claim- ' ants have an interest only in their benefit level as correctly determined under the law, rather than in any particular preordained amount. See Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964). Thus, while any deprivation of property by the Government implicates the Due Process Clause, only a breach resulting in denial or inadequate allocation of benefits effects a deprivation subject to constitutional constraint. It is the breach, and not the reduction per se, that causes the deprivation.
Keeping this point in mind, it is readily apparent that the Supreme Court’s application of the Due Process Clause to governmental administrative action has not only encompassed, but indeed has been premised upon, the need for protection of individual property interests against even inadvertent breaches by the Government. See, e.g., Memphis Light, Gas & Water *1354Div. v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978); Mathews, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18; Goldberg, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287. Properly applied, regulations that govern administrative decisions in such cases do not deprive recipients of property, because a beneficiary whose entitlement should be reduced or terminated under relevant statutes can claim no valid interest in continuation. Administrative decisions that affect statutory entitlements may often be correct. But when the breach — that is, the deprivation of property — occurred because the administrative agent, for reasons beyond the claimant’s control, failed to comply with a statutorily mandated duty, constitutional procedures are interposed to prevent such breaches of regulation insofar as feasible. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982) (holding that the post-deprivation remedy (the possibility of a negligence suit against the Commission) was insufficient to comply with due process because petitioner was challenging not the Commission’s error, but the “established state procedure” that destroys his entitlement without according him proper procedural safeguards).
In the veterans’ uniquely claimant friendly system of awarding compensation, breaches of the duty to assist are at the heart of due process analysis. If the Constitution provides no protection against the occurrence of such breaches, then the paternalistic interest in protecting the veteran is an illusory and meaningless assurance. The fact that breaches inevitably occur in the administration of any bureaucracy requires the conclusion that when the Secretary administers a property entitlement program, he or she has a constitutional obligation to provide due process before implementing adverse changes in the entitlement level. Otherwise, erroneous reductions or denials of benefits — that is, deprivations of individual property — are effected without due process of law.
C.
Because the breaches in these cases cannot merely be overlooked, I turn to the central constitutional inquiry: what process was due in light of “the practicalities and peculiarities of the case”? Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950). In determining what process is due, the court must employ a flexible balancing test that takes into account the particular facts and circumstances, as the need for procedural safeguards varies with the situation: “due process unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place' and circumstances.” Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961). “Due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
When reviewing alleged procedural due process violations, the Supreme Court has distinguished between (1) claims based on established state procedures and (2) claims based on random, unauthorized acts by state employees. See Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Logan, 455 U.S. at 435-36, 102 S.Ct. 1148. In the latter case, the Due Process Clause is not violated when a state employee intentionally deprives an individual of property or liberty, so long as the State provides a meaningful post-deprivation remedy. Hudson v. Palmer, 468 U.S. 517, 531-33, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). However, when the deprivation occurs in the more structured environment of established procedures — for example, because an adminis*1355trative official, for reasons beyond the claimant’s control, failed to comply with a statutorily mandated duty — courts must follow the now familiar interest — balancing analysis set forth in Mathews, 424 U.S. at 334-35, 96 S.Ct. 893. Identification of the specific dictates of due process generally requires consideration of three distinct factors: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute requirement would entail.” Id. These interests are relevant to determining the “content of the notice” as well as its timing and other procedural claims. Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).
1. Importance of the Private Interest
The importance of the correct level of veterans’ benefits to eligible veterans cannot be overstated. No form of new property is more clearly earned by an applicant or recipient, who received this claim of entitlement to benefits in exchange for service given to his or her country: award through the VA claims procedure is the sole process available to the veteran. He or she cannot sue for disabilities stemming from military service under the Federal Tort Claims Act. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Veterans injured in military service generally lose all or much of their ability to earn a livelihood. Yet under the majority opinion, a man or a woman, after time in service, has no rights that may not be frustrated to serve the shibboleth of finality. The majority makes no effort to balance the interests at stake. In this clash between individual rights and the public policy of finality, the latter, they say, is automatically held to be superior and trumps the former.
2. Risk of Error and Value of Additional Procedures
“[A] primary function of legal process is to minimize the risk of erroneous decisions.” Mackey v. Montrym, 443 U.S. 1, 13, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979); see also Fuentes v. Shevin, 407 U.S. 67, 80-81, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Consequently, a breach that may cause deprivation of property must be “preceded by notice.” Mullane, 339 U.S. at 313, 70 S.Ct. 652. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must be of such nature as reasonably to convey the required information.... ” Id. at 314, 70 S.Ct. 652 (citations omitted); see also Memphis Light, 436 U.S. at 14-15 n. 15, 98 S.Ct. 1554 (ruling that “skeletal” notice was constitutionally insufficient because utility customers are “of various levels of education, experience and resources” and “the uninterrupted continuity of [utility service] is essential to health and safety”).
The likelihood of error due to ineffective decision notices by the VA is substantial. The General Accounting Office (“GAO”) found that:
[In] over 60 percent (539) of the 898 compensation notices reviewed, insufficient information was found to have been provided on the reason or reasons for VA’s decision. GAO found that “Denial notices for compensation claims were especially poor. They often stated only that the claims were denied because service connection was not found.”
*1356S.Rep. No. 101-126, at 294, reprinted in 1989 U.S.C.C.A.N. 1469, 1701-02. The GAO also noted that the evidence was incomplete in approximately 10 percent of claims and that information about how a veteran could appeal a decision was not included in the notices in 2 to 3 percent of claims. Id.
The importance of this information can be seen in the circumstances of Cook and Hayre where the vital failure of effective notice was misleading enough to jeopardize their rights to appeal. Although “Hayre was afforded notice of the RO decision,” ante, at 1341, the notice misleadingly assured Hayre that “we do not find in your medical records or elsewhere any evidence of the existence of a nervous condition” without obtaining the service medical records Hayre had specifically requested, ante, at 1337. Notice that affirmatively misleads in this fashion clearly violates the constitutional guarantee of due process. For Cook, the notice denying service connection for “stomach trouble and nervousness” stated that the “[neuropsychiatric] examination revealed no evidence of a psychiatric disability,” even though the VA compensation examination in 1952 noted:
The present day idea is, generally, that a peptic ulcer may be a visceral expression of long continued anxiety. In this case, a diagnosis of duodenal ulcer has been established. A dual diagnosis should not be made, but it should be clear that the diagnosis of duodenal ulcer inculdes [sic] a psychic or emotional component.
Ante, at 1347. The denial notice given to Cook did not clearly indicate that the neu-ropsychiatric report had evidence of a “psychic or emotional component.” Although the record does not státe whether Cook was aware of the contents of the report before the appeals period had run, it was important for Cook, who was relying on the pro-claimant benefits system, to be notified of what evidence was considered by the VA and how the evidence was used in reaching a decision. Without such knowledge, Cook was not in a position to evaluate its accuracy or propriety and to determine whether or not to contest it. The obvious value of notice of those simple factual determinations is that they were the only data that would have enabled Cook to “choose for himself whether to ... acquiesce or contest” by filing a timely appeal. Mullane, 339 U.S. at 314, 70 S.Ct. 652. As the Supreme Court made clear in Goldberg, 397 U.S. at 267, 90 S.Ct. 1011, in statutory entitlement cases the Due Process Clause normally requires “timely and adequate notice detailing the reasons” for proposed administrative action. Such process is constitutionally required whenever the action may be “challenged ... as resting on incorrect or misleading factual premises or on misapplication of rules or policies to the facts of particular cases.” Id. at 268, 90 S.Ct. 1011. The forms of notice delivered to Cook and Hayre are sufficiently misleading that they introduce a high risk of error into the decisionmaking process, because veterans with valid entitlements might wrongly abandon their claims after an initial denial and not reassert them until their right to appeal is barred by the rule of finality.
This is especially true in the circumstances of Cook and Hayre, who relied on the non-adversarial and pro-claimant character of the veterans’ benefits system and pursued their statutory entitlements without the assistance of legal counsel. See 38 U.S.C. § 5904(c)(1) (prohibiting fee agreements with an attorney until the Board issues a final decision); Jaguay v. Principi, 304 F.3d 1276, 1282 (Fed.Cir.2002) (en banc) (“[T]he law prohibiting lawyers from charging a fee has the practical effect of limiting the ability of veterans to retain a lawyer at the early stages of the claim process.”); Hayre, 188 F.3d at 1334 (noting that “representation by attorneys is *1357discouraged and infrequent” (quoting S.Rep. No. 101-126, 294-97, reprinted in 1989 U.S.C.C.A.N. 1469, 1700-03)). While all citizens are presumed to know the law, that legal fiction is not identical to requiring that veteran claimants must be personally conversant and proficient with the arcane intricacies of an entitlement program that requires voluminous statutes, regulations, manuals, and circulars to administer.
In light of the complexity of the substance and procedures involved in these proceedings, as well as the importance of the interest at stake, I believe that Due Process includes minimal protections for the property interests of unrepresented veterans. When a veteran is not represented by counsel, the Secretary has a heightened duty to assist veterans by conscientiously developing and obtaining all the relevant evidence. The Secretary must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited. In addition, when a veteran’s service medical records are not obtained, as in Hayre, the VA’s duty to assist is essential, because “the veteran’s possession of service medical records is a decidedly abnormal, situation. The veteran cannot reasonably be expected to have such records.” Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-5, Procedures for Claims Involving Delayed Receipt of Service Medical Records (Mar. 18, 1988); see also VA Veterans Benefits Administration Letter 20-99-60 at 1 (Aug. 30, 1999) (“Service medical records and VA medical center records are to be requested in all cases. These are records considered to be in VA custody.”).
Moreover, where so much of the evidence in VA adjudications is circumstantial at best, the results of a medical examination for a veteran such as Cook, are often the determinative factor in the claim adjudication process. An insufficient examination also breaches the VA’s duty to assist the veteran in fully developing his or her claim because such evidence is needed to determine whether the veteran is eligible for benefits and the amount of any such benefits. Therefore, administering an inadequate medical exam has as important an effect on the proper resolution of a veteran’s claim as a failure to inform the veteran that the VA was unable to obtain medical records. A veteran must rely upon the VA for a thorough medical examination just as he or she must rely upon the department to locate service medical records. Just as a veteran must be able to assume, absent notice to the contrary, that the VA located and based its claim determination on the requested, complete, and adequate medical records, he or she should be able to assume that the VA performed a complete and thorough medical examination. Because the breach of the duty to assist in this uniquely pro-claimant system jeopardized in a fundamentally unfair manner the right to appeal, the claims of Cook and Hayre should not become final for purposes of appeal.
3. Governmental Interest
In contrast, requiring notices accurately to state what evidence was considered by the VA and how the evidence was used in reaching a decision does not impose a significant financial or administrative burden on the Secretary. In determining the costs to support the veterans’ benefits system, Congress has already appropriated its resources with the presumption that statutory requirements will be upheld. Thus, requiring the Secretary to meet the duty to assist — by providing notices that are not affirmatively misleading and by administering complete and thorough medical exams — does not increase the expected administrative burden of providing eligible veterans with statutory entitlements. Moreover, Congress has evaluated the fi*1358nancial and administrative costs of upholding the statutory duty to assist in accordance with the interest at stake. The benefits administered by the Secretary are an entitlement by which the Nation keeps its commitment to our veterans who have sacrificed to protect and defend our freedom. The Government has considered this interest and ensured that it will continue to pay our debts to these men and women. Thus, Congress, through fiscal appropriations presuming that statutory requirements will be upheld, recognizes the value of demonstrating to veterans — to all those currently serving in our military and to those who may serve in the future — that America honors its commitments to those who have served.
In my view, regardless of the nature of the dispute between the sovereign and the citizen — whether it be a claim for social security benefits or veterans’ benefits asserted by a soldier who was disabled during service to his or her country — the citizen’s right to procedural due process is constitutionally protected. I am dismayed by the majority’s implication that breaches in the administration of veterans’ benefits programs may be ignored in determining what protection the Constitution provides. Such breaches all too often plague benefits programs designed to. aid veterans. If breaches that might be prevented inexpensively lie entirely outside the ambit of the Due Process Clause, then the non-adversarial and manifestly pro-claimant character of the veterans’ benefits system would be the cruelest of shams perpetrated upon our veterans.
I would reverse the judgment of the Court of Appeals for Veterans Claims.
. The majority addresses the dissenting opinion by stating that the Due Process Clause question was not briefed by the parties and by reemphasizing that Congress only provided two statutory exceptions to the rule of finality. Ante, at 1341 n. 9. However, courts may address a constitutional issue, which is not properly raised by the parties. See, e.g., Ernest H. Schopler, Annotation, What Issues Will the Supreme Court Consider, Though Not, or Not Properly, Raised by the Parties, 42 L.Ed.2d 946 (1999). Certainly, this court may, in the interest of fairness, entertain a constitutional issue subsumed in Hayre and presented under a liberal reading of appellant’s brief. Congress would not deny a veteran his or her constitutional rights by condoning the VA's failure to assist him or her properly. For the reasons stated infra in this dissent, the Constitution is paramount to statutory exceptions to the rule of finality, and thus the public policy of finality cannot trump a veteran’s constitutional right to due process.