What has the Supreme Court said about (CUE) Clear and Unmistakable Error

[Tbird]

The case in question is:

George v. McDonough Oral Argument

The Supreme Court heard oral argument in George v. McDonough, a case concerning veterans denied disability benefits and the appeals process. Under federal law, veterans are entitled to benefits under federal law for injuries or disabilities resulting from their service, including pre-existing conditions aggravated during service. In 1975, Kevin George was diagnosed with paranoid schizophrenia just months after enlisting as a Marine. He received a medical discharge and filed for disability benefits through the VA. He was denied after a medical panel ruled his condition existed prior to joining the military. Mr. George appealed to the Board of Veterans' Appeals in 1977 but was unsuccessful. In 1988, Congress acted to allow VA decisions to be appealed in federal court. In 2014, Mr. George appealed again. He argued his case should be reopened because the board denied his claims based on an invalidated statute. Lower federal courts ruled against him, and he appealed.

This link will take you to the C-Span page of the hearing. This page includes the audio hearing as well as the text for those with hearing issues.

You can read the Amicus Brief here.

[Amicus Curiae - Latin for "friend of the court." Plural is "amici curiae." Frequently, a person or group who is not a party to an action, but has a strong interest in the matter, will petition the court for permission to submit a brief in the action with the intent of influencing the court's decision. Such briefs are called "amicus briefs."]

[Lemuel]

Read thru the whole thing.  No clue on how they will decide.  Hope the go for George because it will make CUE better defined when it comes to regulations and statutes.  And both ultimately must fall under Constitutional authority as the "higher authority."  I think then "Fifth Amendment, denial of due process" will become a CUE.  

Still waiting for my BVA hearing.

[Vync]

@LemuelI agree. I hope George wins and they allow changes in interpretation which benefit veterans to impact prior denials.

The whole CUE process assumes the vet squandered their appeal window. Many vets, like me, simply did not understand the system at the time and trusted VSOs and the VA to handle things by the book. We all know how that goes. And then when they apply CUE, it's totally adversarial as the Caluza element for the nexus is completely tossed out the window. Can't reinterpret it at all.

[Richard1954]

I didn't think he would win, it would have ment that thousands of veterans would have filed cue claims ,  I felt the courts would have dened it on this alone, and not to my liking they did.

[Tbird]

Decision

george-v-mcdonough-syllabuls.pdf

[Lemuel]

I was hoping he had a better case.  

He was up against an EPTE that was not disclosed that prejudiced his case for hardliners.  Fraudulent enlistment though that was not used against him in the decision.

The question I have is how it was missed in the MMPI examination that all recruits received at that time in Boot Camp.  Seems as though he was in more than 90 days and had a board that concluded the service aggravated his condition.  That should have been the decision in his favor granting him a divided SC and limited compensation making it super complicated.

I downloaded the decision Berta posted to study.  My conditions have no EPTE so the fact that the CUE got to SCOTUS may have relevance for me in the references from the Appellant.

My case is similar in that I consider "limiting examination orders" from the RO or DRO are a CUE in the face of 38 CFR 4.42 and Barr v. Nicholson, 21 Vet. App. 303 (2007) including for seizures in a TBI examination (EEG) and for tinnitus when a hearing loss or hearing difficulties are claimed and there is a TBI. 

[Vync]

@LemuelWhen I joined in the early 90s, they made us take the ASVAB test, not a full spectrum MMPI exam. However, I was hoping he might win CUE under the aggravation vs. pre-existing condition laws/regs.  Granted he joined and was discharged in the 70s, the rules then might have differed greatly from when I joined in 1990.

Denials due to pre-existing vs. aggravation are pretty crazy, but are not always legitimate. If the entrance exam was silent for something they grant the presumption of soundness for it. Mental illness issues are often silent. Other factors like needing eyeglasses or having a healed fracture or injury scars are much more obvious. However, if an issue is noted at entrance, the military can still admit them into the service. If it is determined that service aggravated a pre-existing disability, they can still grant SC and even percentages. However, when rating the pre-existing/aggravated disability, they are required to determine the pre-service level of disability in terms of the rating schedule and deduct that from the current level of disability. I am not sure if that same law/reg was in effect back in the 70s though...

When you think about it, basic training back in the 70s was a much rougher experience than when I joined in 1990, which was still rougher than joining today (I hear recruits are given stress cards and have access to cell phones). I can see how someone might develop mental issues or suffer some sort of relapse from merely going through basic training. I honestly expected him to win based in part on the aggravation approach, not due to changes in the law/reg. Makes me wonder if he might try to send in a new CUE based on the aggravation, but I guess that depends on what is in his original C&P, discharge docs, etc... Just feel bad for him though.