hi i'm amy odom in this video i'm breaking down the recent support recent supreme court case
regarding va's understanding application of clear and unmistakable error the name of the course
the case is george versus mcdonough an oral argument was recently heard at the supreme court
what happened in this case is that after being medically discharged marine corps veteran
kevin george filed for disability benefits in 1975 for schizophrenia the va regional office
denied his claim and when he appealed he was also denied by the board of veterans appeals
he did not then have the opportunity to appeal to the courts because at that time
the law said that veterans could not appeal va decisions to the court so once he got
the denial from the board of veterans appeals that was the end of his case
um and then fast forward many years later in december 2014 the veteran petitioned the board
of veterans appeals to revise its 1977 decision denying the veterans claim for schizophrenia um
and he did this based on a law that provides that a decision by the board is subject to revision on
the grounds of clear and honest unmistakable error in other words it's a law that provides
claimants with the opportunity to go back to the va many years after the va's decision
asked the va to revise that decision but the veteran must be able or the claimant must be
able to show that the va made a clear and unmistakable error this is a very high bar
if the if the claimant is successful though he or she can be entitled to benefits
all the way back to the date of the claim that was denied in the clearly erroneous decision
so in this case that meant that mr george if he were successful could be entitled to
benefits for his disability all the way back to 1975 so we're looking at like four years there
and his legal theory for why the board's 1975 decision contained clear and unmistakable error
is that the board held that mr george's schizophrenia had
pre-existed service because even though it wasn't noted at his entrance to service there was clear
and unmistakable evidence that the schizophrenia had actually pre-existed service the problem is at
the time of the 1975 board's decision the statute 38 usc 1111 said that if a disability is not
identified at the veteran's entrance examination va must presume that that veteran did not have
any defects or diseases at that time unless va can show by clear and unmistakable evidence
both that the disability pre-existed service and that it wasn't aggravated by service this
is a very difficult thing for the va to show because it essentially has to prove a negative
by clearing unstable evidence that the disability was not aggravated but at that time in 1975
although the statute that's what the statute said va's regulation implementing the statute simply
said that the presumption that the veteran did not have any defect defects or diseases could be
rebutted only with clear unmistakable evidence of pre-existence there was no requirement in
the regulation that uh va also have evidence of clearance legal evidence that it wasn't aggravated
um but since the 1975 decision um the the va determined that its regulation was in fact
inconsistent with the statute um and invalidated the ask the court to the courts to invalidate
the regulation and the federal circuit court of appeals did so in a case called wagner versus
shinseki and in that decision the federal circuit also said that the statute section 11 11 clearly
required both pre-existence and evidence of non-aggravation so mr george's theory was that
the wagner versus shinseki case simply said what the statute said this whole time including in
1975 when the board denied his claim and that it was clear and unmistakable of an error for the
board to not apply the statute even though the regulation va's regulation said something else
unfortunately the board determined that the uh failure to apply 1111 correctly was not clear
an unmistakable error and the veterans court and the federal circuit agreed with va but mr george
then uh sought review of the federal circuit's decision in the united states supreme court and
that is where the case is now like i said at the top of the program uh the the supreme court just
recently heard oral arguments and will be issuing a decision um in the next few months so what does
this mean for the state of veterans law today well the case presents the following question to
the supreme court when the va denies a veteran's claim and reliance on an agency interpretation
that is later deemed invalid under the plain text of the relevant statutory provisions
is that the kind of clear and unmistakable error that the veteran may vote to challenge the va's
decision so basically was the va's failure to apply the statute correctly clear and unmistakable
evidence even though the regulation um says that what they said that what they did was fine so what
what trumps the statute or the regulation for purposes of determining whether there's a clear
and unmistakable error so mr george's arguments that the supreme court really centered around
what's the definition of a clear and unmistakable error and how do you apply that definition um
a main thrust of mr george's arguments is that a regulation that is inconsistent with this statute
really isn't a law isn't the law and the only law that was applicable at the time of the board's
1975 decision in mr george's case was the statute the case really raises important issues about
the retroactivity of judicial decisions interpreting statutes in other words whether
a a court decision can apply to um decisions by the va that were made many years earlier
when when the court's decision is about what the statute has always
said some implications from this case and how it'll affect other veterans moving forward
well one of the government's main concerns in this case is that if the supreme court were to
come down in favor of the veteran it could lead to a rise in claims and an otherwise
already black backlogged system um in other words once people find out that they can
file uh for a revision of a prior decision based on clear numbers legal evidence because va didn't
apply the statute correctly the government says um a bunch of people are going to start filing
new claims um personally i think that's unlikely uh there's not a lot of um there aren't a ton of
statutes out there that va has just been so blatantly misinterpreting like they did 11 11.
so another possible implication of a favorable decision in this case for mr george is that it
could help other veterans who were denied based on va's incorrect interpretations of statutes
but again there aren't a whole lot of those those kinds of cases out there because there aren't a
whole lot of statutes that va misinterpreted the way they did this particular statute so another
possible implication is that really it could just return things to status quo prior to the
veterans court's decision in george um the judges on that court routinely agreed with veterans that
the va had to also show clear and unmistakable evidence of no aggravation prior to when the
regulation was invalidated because that's what the statute has always required so if mr
george wins here then you know things could just be like they were before um the veterans court's
decision in george so in closing thoughts you know this is a really exciting case um there aren't a
whole lot of veterans law cases that get up to the supreme court this has been the first one in
at least a decade um actually that's not true we just had one a few years ago too which makes it
even more exciting because that's two in a decade um so we're watching this pretty closely uh cck
did participate in this case at the supreme court by um authoring an amicus brief um in mr george's
favor and amicus means friend of the court so we were able to advocate for veterans that way
and we're really looking forward to see seeing how this decision turns out thanks for tuning in
you