U.S. Supreme Court to decide whether veterans may challenge VA decisions based on illegal regulations

The U.S. Supreme Court agreed to hear George v. McDonough in an order released on Jan. 14, 2022. The case concerns whether veterans may challenge U.S. Department of Veterans Affairs (VA) decisions based on regulations that are found to be in violation of the plain text of governing statutes. If the U.S. Supreme Court rules that veterans may challenge VA decisions based on regulations that are later found to be invalid, veterans whose disability claims were denied on those grounds may seek to have the agency revise its decisions.

The VA denied Kevin George’s 1970s disability claim based on a regulation that did not require the agency to prove that his military service did not aggravate his condition. Decades later, a court ruled that the regulation was invalid because it violated the unambiguous text of the relevant statute. George sought to have the VA reconsider his claim following the court ruling, arguing that reliance on the faulty regulation constituted “clear and unmistakable error” (CUE).

The Federal Circuit held that George could not show that the VA committed CUE in his case because the agency applied the law as it was understood at the time. George appealed to the U.S. Supreme Court, arguing that when federal courts interpret an unambiguous statute they establish what the law always meant instead of changing the meaning.

The U.S. Supreme Court is set to schedule oral argument in the case during its October 2021-2022 term

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