SCOTUS Hears VA Benefits Case on CUE Claims
On April 19, 2022, the Supreme Court heard George V. McDonough, a case relating CUE claims, or claims where a “clear and unmistakable error” has been made. The case, specifically, questions whether a clear and unmistakable error was committed by VA when it relied on regulations, which were later overturned, to deny a disability claim.
What is George V. McDonough?
Who is “George”?
Kevin George, the petitioner in this case, served for three months in the United States Marine Corps in 1975. He was then discharged after being diagnosed with paranoid schizophrenia. The diagnosis has previously gone undetected during his pre-enlistment exams.
After being discharged, George filed for service-related disability benefits. He did so on the grounds that his condition was caused or aggravated by his military service. Under statute 38 U.S.C. §1111, veterans are presumed to be in “sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment.”
George is seeking to overturn VA’s 1977 denial of his claim for service-connection because the denial was based on a regulation that was later invalidated as being “inconsistent with the plain text of authorizing statute.”
Who is “McDonough”?
Secretary Denis R. McDonough is the Secretary of VA. He was sworn into office on February 9, 2021. As Secretary, or head of VA, McDonough is the respondent in the case, meaning he represents VA in this case.
Under 38 U.S.C. §1111, the government can rebut a veteran’s presumption of soundness only by providing clear and unmistakable evidence that demonstrates that the condition existed before enrollment and was not aggravated by service.
However, when VA denied Kevin George’s original claim, it cited a regulation in use at the time to overcome the presumption of soundness by proving with clear and unmistakable evidence that the veteran’s condition existed prior to enrollment.
As such, the Board of Veterans’ Appeals denied George’s claim based on evidence that he had schizophrenia prior to service.
However, in 2003, VA’s general counsel issued a precedential opinion in which it determined that, in order to rebut the presumption of soundness, VA must show clear and unmistakable evidence both that the condition existed prior to service and that the condition was not aggravated by service. In other words, VA could not solely rely on evidence that a condition existed prior to service to disprove a veteran’s presumption of sound condition.
The following year, the Federal Circuit confirmed that the regulation which allowed VA to overcome a veteran’s presumption of soundness based only on proof that a condition existed prior to service was in violation of the plain text governing statutes; that is, the regulation contradicted 38 U.S.C. §1111 which requires VA to prove a veteran’s condition existed prior to service and was not aggravated by service in order to rebut presumption of soundness.
The burden then falls on the government to prove that the veteran’s disability was both pre-existing and not aggravated by service using clear and unmistakable evidence.
Taking the Case to the Supreme Court
In 2014, Kevin George filed a clear and unmistakable error motion with the Board of Veterans’ Appeals, seeking to overturn the 1977 denial of benefits and receive an award of retroactive benefits based on the principle that Board committed a CUE (clear and unmistakable error) when applying the then-existing regulation which allowed VA to deny the claim based solely on evidence that George had schizophrenia prior to service.
However, the CUE motion was denied by the Board, as well as by the Court of Appeals for Veterans Claims and the Federal Circuit following appeals by George. In these decisions, it was argued that a subsequently invalidated regulation does not constitute a clear and unmistakable error and that the 2004 Federal Circuit ruling was not retroactive, meaning it could not necessarily invalidate the original denial in George’s case.
However, the case has now come before the Supreme Court.
What is the Question at the Root of This Case?
Essentially, the Supreme Court will be answering this question: When VA denies a veteran’s claim, and does so using an interpretation that is later overturned or deemed invalid, is this a form of a “clear and unmistakable error” that allows the veteran to challenge a final VA decision?
What Does this Case Mean for Veterans?
In this case, Kevin George’s position is that the term “clear and unmistakable error” needs to include misinterpretations of statutes that are plainly and clearly worded. In this specific case, VA’s regulation misinterpreted the clearly worded statute 38 U.S.C. §1111.
George is arguing that a regulation later deemed invalid should not have the same legal footing as a clear statute because the statute is law while the regulation is not. Additionally, George reasons that the way VA implemented the regulation in this case was in direct contrast to the clear wording of the statute.
George also argues that Social Security benefits decisions can be reopened to correct errors, specifically those that were created through a misinterpretation of the law. George’s case then compares VA to the Social Security Administration and asks why, if SSA can reopen cases to correct invalid regulations, can VA not.
What Does this Case Mean for VA?
VA’s position in this case is that when Congress enacted the “clear and unmistakable error” policy, it was putting into legislature VA’s practice of allowing final benefits decisions to be revised when a specific and rare error has been made. According to VA, this excludes situations where a regulation that was in effect at the time has later been overturned.
VA also argues that the Federal Circuit has already established that a clear and unmistakable error cannot be made in instances where a previous Board decision used the correct application of a regulation as it was to be interpreted at the time of the decision. In other words, VA holds that a clear and unmistakable error cannot be issued retroactively if a regulation was implemented correctly at the time of the decision and then later overturned.
Additionally, VA holds the position that, even if a clear and unmistakable error review changed the way the regulation was implemented, Kevin George’s claim would still not entitle him to benefits because he still needs to prove that his condition worsened during military service. VA further argues that there is not enough evidence to prove that the military caused George’s schizophrenia, as opposed to the natural progression of his condition.
What Will the Outcome of This Case Mean Moving Forward?
This case has raised an important issue with regards to if judicial decisions can be reinterpreted retroactively based on the interpretation of statutes. Essentially, can a decision be reinterpreted if a statute was not understood correctly or if a regulation has since been invalidated?
Once decided, this case will set precedent for other cases involving clear and unmistakable errors going forward.
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