George v. McDonough

• Decision Date: 15 June 2022
• Docket Number: 21-234
• Citation: 142 S.Ct. 1953,213 L.Ed.2d 265
• Parties: Kevin R. GEORGE, Petitioner v. Denis R. MCDONOUGH, Secretary of Veterans Affairs
• Court: U.S. Supreme Court

142 S.Ct. 1953

213 L.Ed.2d 265

Kevin R. GEORGE, Petitioner

v.Denis R. MCDONOUGH, Secretary of Veterans Affairs

No. 21-234

Supreme Court of the United States.

Argued April 19, 2022

Decided June 15, 2022

Melanie L. Bostwick for petitioner.

Anthony A. Yang for respondent.

Kenneth M. Carpenter, John Niles, Carpenter Chartered, Topeka, KS, Edmund Hirschfeld, Melanie R. Hallums Orrick, Herrington & Sutcliffe, New York, NY, Melanie L. Bostwick, Counsel of Record, Thomas M. Bondy, Benjamin P. Chagnon, Robbie Manhas, Jonas Q. Wang, Orrick, Herrington & Sutcliffe LLP, Washington, DC, for Petitioner.

Elizabeth B. Prelogar, Solicitor General, Counsel of Record, Brian M. Boynton, Principal Deputy Assistant, Attorney General, Malcolm L. Stewart, Deputy Solicitor General, Anthony A. Yang, Assistant to the Solicitor General, Patricia M. McCarthy, Martin F. Hockey, Jr., Eric P. Bruskin, Tanya B. Koenig, Washington, DC, Richard A. Sauber, General Counsel, Brian D. Griffin, Andrew J. Steinberg, Attorneys, Washington, DC, for Respondent.

Justice BARRETT delivered the opinion of the Court.

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.

I

A

"The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service." Shinseki v. Sanders , 556 U.S. 396, 400, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009) ; see 38 U.S.C. § 1110. A veteran seeking such benefits must first file a claim with the VA. § 5101(a)(1)(A). A regional office of the VA then determines whether the veteran satisfies all legal prerequisites, including the requirement that military service caused or aggravated the disability. § 511(a); see 38 C.F.R. § 3.100(a) (2021). To that end, the statute governing wartime service imposes a "[p]resumption of sound condition": If a veteran's disability was not noted at the time of entry into service, then the veteran is presumptively entitled to benefits unless the VA shows by a heightened burden of proof that the disability "existed before ... and was not aggravated by such service." 38 U.S.C. § 1111. After applying this and other statutory and regulatory requirements, the regional office issues an initial decision granting or denying benefits. §§ 511(a), 5104(a).

A veteran dissatisfied with this decision may challenge it through several layers of direct review. As a general rule, the veteran may appeal within one year to the VA's Board of Veterans’ Appeals (Board). §§ 7105(b)(1), 7104(a). If the Board also denies relief, the veteran may seek further review outside the agency. Such review was once limited to constitutional and certain statutory claims, but since 1988 Congress has generally allowed veterans 120 days to appeal any Board decision to the Court of Appeals for Veterans Claims (Veterans Court). See Henderson v. Shinseki , 562 U.S. 428, 432, and n. 1, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011) ; §§ 7252(a), 7261(a), 7266(a). A veteran dissatisfied with that court's decision may seek review of any legal issue in the Federal Circuit and ultimately in this Court. § 7292; 28 U.S.C. § 1254(1).

After this direct appeal process, the benefits decision generally becomes "final and conclusive and may not be reviewed by any other official or by any court." 38 U.S.C. § 511(a) ; see § 7104(a). Still, the veteran enjoys a few limited options for seeking collateral review in exceptional circumstances. E.g., § 5108(a) (supplemental claim based on new and relevant evidence); § 503(a) (discretionary relief based on administrative error); § 5110(g) (increase of benefits based on subsequent liberalizing legal change).

This case concerns one such exception to finality: 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 C.F.R. §§ 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 C.F.R. § 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.

B

Kevin George joined the Marine Corps in 1975 after experiencing multiple schizophrenic episodes. He did not initially disclose that history, and a medical examination noted no mental disorders at the time he entered service. But less than a week into training, George had another episode and was hospitalized. A few months later, the Navy's Central Physical Evaluation Board found that his schizophrenia

made him unfit for duty and was not aggravated by service. App. to Brief for Petitioner 12a–15a. George was then medically discharged.

Later that year, George applied for veterans’ disability benefits based on his schizophrenia

. A VA regional office denied his claim after concluding that his condition predated his military service and was not aggravated by it. The Board agreed and denied George's appeal in 1977. In so ruling, neither the regional office nor the Board expressly discussed the VA's burden of proof under the presumption of sound condition.

In 2014, George asked the Board to revise that final decision on grounds of "clear and unmistakable error." 38 U.S.C. § 7111. In particular, he claimed that the Board erred by applying a later invalidated regulation to deny his claim for benefits without holding the VA to its full burden of proof to rebut the statutory presumption of sound condition. For more than 40 years, including George's time in service, a VA regulation provided that the agency could rebut the presumption simply by showing, according to a heightened burden of proof, that a disability predated service. See 26 Fed. Reg. 1580 (1961) ; 38 C.F.R. § 3.304(b) (1976). In 2003, however, the VA concluded that this regulation conflicted with the statute, which it now understood to require an additional showing (by the same burden of proof ): that the veteran's condition was not later aggravated by service. VA Op. Gen. Counsel Precedent (VA Op.) 3–2003 (July 16, 2003). The VA recognized that it seemed "illogical" to require an additional showing with "no obvious bearing upon the presumed fact of whether the veteran was in sound condition when he or she entered service." Id., at 8. But it explained that the statutory text nonetheless "compel[led]" this reading. Ibid. Based on this about-face, the VA confessed error in a pending case applying the regulation, and the Federal Circuit agreed that this "difficult to parse" and "somewhat self-contradictory" statute rendered the regulation "incorrect." Wagner v. Principi , 370 F.3d 1089, 1093, 1097 (2004). The VA ultimately amended the regulation to resolve the issue going forward. 70 Fed. Reg. 23027 (2005).

The Board denied George's claim for collateral relief, and the Veterans Court affirmed. The Federal Circuit also affirmed, concluding that the application of a later invalidated regulation does not fall into the narrow category of "clear and unmistakable error" permitting revision of a final decision under 38 U.S.C. §§ 5109A and 7111. 991 F.3d 1227 (2021). We granted certiorari. 595 U. S. ––––, 142 S.Ct. 858, 211 L.Ed.2d 533 (2022).

II

A

This case turns on the meaning of the 1997 statute subjecting a final veterans’ benefits decision to collateral review on grounds of "clear and unmistakable error." 111 Stat. 2271 ( 38 U.S.C. §§ 5109A, 7111 ). Neither this statute nor any other defines this term—indeed, it appears nowhere else in the entire United States Code. The modifiers "clear" and "unmistakable" indicate that this is a narrow category excluding some forms of error cognizable in other contexts. The statutory structure similarly suggests a narrow category because this form of review functions as a limited exception to finality, in contrast to the broad provision of one direct appeal for "[a]ll questions" in a case. § 7104(a). But beyond those general contours, the statute itself does not identify the specific ways in which this category is narrower than garden-variety "error."

Fortunately, a robust regulatory backdrop fills in the details. Where Congress employs a term of art " ‘ "obviously transplanted from another legal source," ’ it ‘ "brings the old soil with it." ’ " Taggart v. Lorenzen , 587 U. S. ––––, ––––, 139 S.Ct. 1795, 1801, 204 L.Ed.2d 129 (2019). That principle applies here. In 1997, Congress used an unusual term that had a long regulatory history in this very context. It enacted no new "definition" or other provision indicating any departure from the "same meaning" that the VA had long applied. Hall v. Hall , 584 U. S. ––––, ––––, 138 S.Ct. 1118, 1128, 200 L.Ed.2d 399 (2018). We therefore agree with the Federal Circuit that Congress "codif[ied] and adopt[ed] the [clear-and-unmistakable-error] doctrine as it had developed under" prior agency practice. Cook v. Principi , 318 F.3d 1334, 1344 (2002) (en banc). That longstanding VA practice reveals several respects in which the clear-and-unmistakable category is a "very specific and rare kind of error" narrower than error simpliciter . 38...