George v. McDonough, 2022 U.S. LEXIS 2944 (June 15, 2022) (Barrett, J.) Veterans may claim benefits for disabilities connected to their military service subject to statutory and regulatory requirements. When the Department of Veterans Affairs (VA) denies a benefits claim, that decision generally becomes final after the veteran exhausts the opportunity for direct appeal. But a statutory exception permits the veteran to seek collateral review at any time on grounds of “clear and unmistakable error.” We must decide whether that exception allows relief from a VA decision applying an agency regulation that, although unchallenged at the time, is later deemed contrary to law. We hold that it does not. At any time, a veteran may ask the Board or regional office to revise a final benefits decision on grounds of “clear and unmistakable error.” §5109A (regional office); §7111 (the Board); 38 CFR §§3.105, 20.1400-20.1411 (2021). This form of collateral review was first adopted by regulation roughly 100 years ago. Since at least 1928, the VA and its predecessor agencies have allowed revision of an otherwise final decision when “obviously warranted by a clear and unmistakable error.” Veterans’ Bureau Reg. No. 187, pt. 1, §7155 (1928); see 38 CFR §3.105(a) (Cum. Supp. 1963) (“Previous determinations . . . will be accepted as correct in the absence of clear and unmistakable error”). In 1997, Congress codified this form of review in the statute we interpret today. 111 Stat. 2271. The invalidation of a VA regulation after a veteran’s benefits decision becomes final cannot support a claim for collateral relief based on clear and unmistakable error. We affirm the judgment of the Court of Appeals.
VETERANS-CLEAR AND UNMISTAKABLE ERROR
June 28th, 2022 by Rieders Travis in Miscellaneous