On June 15, 2022, the Supreme Court decided the case of George v. McDonough, concerning a denial of a VA compensation claim from 1977. While the Supreme Court has settled veterans law cases in the past, it is not an entirely common occurrence, and the release of a new decision is noteworthy in the VA community.
This case centers around the interpretation of 38 CFR §§3.105, and in particular, the phrase “clear and unmistakable error.” Under 38 CFR §§3.105 a veteran can only seek revision of a final benefits decision if the veteran can prove that a “clear and unmistakable error” was committed in the decision. This standard is an ambiguous one and predictably, the bounds of what is considered “clear and unmistakable” have been debated since its creation in 1997. While this new decision does not resolve all ambiguity surrounding this standard, it does provide helpful guidance and clarification for future cases.
In the present case, Kevin George entered service in 1975 without reporting a history of schizophrenia. During basic training, Mr. George suffered a schizophrenic episode, and was medically discharged as a result. In 1977, the Veteran’s claim for service connection was denied. The Veteran claimed that his preexisting mental health condition was aggravated by his military service. In denying the claim, both the Regional Office and the Board rebutted the presumption of soundness simply by showing that the Veteran’s condition predated his service.
Had the decision happened today, it would be clear that the Board did not do enough to refute the presumption of soundness. However, up until 2003, it was the VA’s interpretation that the presumption of soundness could be rebutted simply by showing that the Veteran’s condition predated service. In 2003 it was determined that the VA must do more to rebut the presumption of soundness. Instead of showing that a condition predated service, the VA is now required to show that the Veteran’s preexisting condition was not later aggravated by service. This new interpretation is much more favorable to veterans.
As a result, in 2014, Mr. George sought to reopen his previously denied claim, claiming that the 1977 Decision committed a “clear and unmistakable error.” George v. McDonough turns on whether the term “clear and unmistakable error” includes when VA applies a Regulation, which is later invalidated, to deny a claim for benefits.
In a 6-3 decision, the court denied Mr. George’s claim, holding that such a situation does not constitute a “clear and unmistakable error.” This ruling confirmed what many in the veteran law community already suspected, and further narrows what kind of mistakes are considered clear and unmistakable.
The Supreme Court had a couple of different rationales. First, the Court reasoned that although “clear and unmistakable error” is not defined in its statute, when looking at similar regulations and its place in the statutory structure, “clear and unmistakable error” was intended to be a specific and rare kind of error. Such errors are reserved for the most apparent misapplications of law, at the time of the decision. The Court notes that this narrow interpretation serves the purpose of preventing “clear and unmistakable error” from expanding into a substitute for normal error correcting, which is meant to occur during appeal.
Further, the Court concluded that a “clear and unmistakable error” did not occur, because the VA applied the Regulation as it was interpreted at the time of the original decision. Meaning that although if the case was decided today, VA would have had to do more to overturn the presumption of soundness, at the time the original decision was made, the VA did not have the same burden. Thus, there was no “clear and unmistakable error” in the original decision.
Reopening a previously denied claim is a complicated and difficult process. However, even under the Court’s new ruling, a claim of “clear and unmistakable error” is by no means impossible. If you believe that a VA has wrongfully denied a claim concerning you or a loved one and you seek to reopen such claim or allege that an older decision committed “clear and unmistakable error”, please reach out to our experienced attorneys at Stevens and Sullivan at 404-467-9017.