George v. McDonough
991 F.3d 1227
| Fed. Cir. | 2021Background
- Kevin R. George and Michael B. Martin are veterans whose decades-old VA denials of service-connected disability benefits became final; each later filed a motion to revise those decisions for clear and unmistakable error (CUE).
- The original denials relied on then-governing 38 C.F.R. § 3.304(b) (presumption of soundness), which required only clear and unmistakable evidence that a condition preexisted service (not proof of lack of in-service aggravation).
- The VA (2003 OGC opinion) and this court (Wagner v. Principi) later interpreted § 1111 to require clear and unmistakable evidence of both preexistence and lack of aggravation to rebut the presumption of soundness.
- George’s record: negative entrance exam for psychiatric disorder, acute psychosis shortly after enlistment, mixed findings on whether schizophrenia was aggravated by service; 1977 Board denied service connection and decision became final.
- Martin’s record: negative entrance exam for respiratory disease, in-service allergy/asthma treatment but separation exam negative; 1970 RO denied service connection and decision became final.
- Both filed CUE motions years later arguing the VA had misapplied § 1111 by relying on the now-invalidated regulatory interpretation; the Board and Veterans Court denied relief, holding CUE cannot be predicated on a subsequent change in interpretation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wagner’s later interpretation of § 1111 can ground CUE in final VA decisions | Wagner merely states what § 1111 always meant; therefore it can form CUE | CUE cannot be based on a later judicial or agency reinterpretation of law | No — Wagner cannot form basis for CUE against final decisions |
| Whether faithful application of then‑existing 38 C.F.R. § 3.304(b) can constitute CUE | Applying an invalid regulation was a misapplication of § 1111 and thus CUE | A correct application of a binding regulation at the time is not CUE even if regulation is later invalidated | Applying the then‑binding regulation is not CUE |
| Whether Supreme Court retroactivity/finality principles permit reopening final VA decisions via CUE after a new judicial pronouncement | New judicial pronouncements constitute authoritative statements and can be applied retroactively in collaterally attacked cases | Harper/Beam limit retroactivity to cases open on direct review; finality bars reopening via CUE | Finality doctrine precludes using new judicial interpretations to overturn final VA decisions via CUE |
| Whether the statutory/regulatory history of CUE permits revision based on subsequent changes in interpretation | CUE was codified to correct misapplications of law and should reach clear misapplications even if recognized later | Congress codified preexisting VA rule that excluded changes in law/interpretation as CUE | Congress’ codification and prior VA rules exclude changes in law or interpretation from qualifying as CUE |
Key Cases Cited
- Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005) (CUE cannot be based on a subsequent change in interpretation of a statute or regulation)
- Disabled Am. Veterans v. Gober, 234 F.3d 682 (Fed. Cir. 2000) (upheld VA rule that CUE excludes correct application of law later reinterpreted)
- Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (interpreted § 1111 to require clear and unmistakable evidence of both preexistence and lack of in‑service aggravation)
- Rivers v. Roadway Express, 511 U.S. 298 (1994) (judicial construction is authoritative but retroactivity is governed by Harper)
- Harper v. Virginia Dep’t of Taxation, 509 U.S. 86 (1993) (new judicial rules have full retroactive effect only in cases still open on direct review)
- James B. Beam Distilling Co. v. Georgia, 501 U.S. 529 (1991) (finality limits retroactive reopening of closed cases)
- Reynoldsville Casket Co. v. Hyde, 514 U.S. 749 (1995) (new legal principles do not apply to already closed cases)
- Willsey v. Peake, 535 F.3d 1368 (Fed. Cir. 2008) (CUE requires an undebatable error that would have manifestly changed the outcome)
- Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (CUE is a very specific and rare form of collateral attack)