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Split ruling ends veteran’s long fight for disability benefits

The dissenters argue the court is excusing an obvious error in upholding an old agency ruling. 

WASHINGTON (CN) — A veteran’s 45-year-old fight for disability benefits drew to a close at the Supreme Court on Wednesday in a 6-3 ruling that refuses to let the man reopen his 1977 case even though his claim should not have been denied. 

Kevin George was 17 when he enlisted in the U.S. Marine Corps. He had no knowledge at the time of any family history of mental health disorders, but, a week into his service, he was hospitalized from a mental health episode. George was diagnosed with paranoid schizophrenia that was aggravated by his service and recommended discharged from the military. 

U.S. military veterans can receive disability benefits from the Department of Veterans Affairs if they suffer injuries in the line of duty or have preexisting injuries aggravated by duty. 

George applied for disability benefits following his discharge from the Marine Corps, only to have the physical evaluation board disagree with the medical board’s conclusion that his condition was aggravated by service. George’s claim was denied. 

Almost 40 years passed before George challenged that finding, saying the board made its decision based on a “clear and unmistakable error.” He claims the board’s decision did not correctly apply a statute that requires the government to provide clear and unmistakable evidence that an injury existed before he enlisted. That provision was put in place in 1977, the same year the board denied George’s benefits claim. 

The board denied George’s request to revise its decision, and further challenges were rejected by the Court of Appeals for Veterans Claims and then the Federal Circuit. 

The Supreme Court heard arguments in April and likewise affirmed the ruling against George on Wednesday.

Justice Amy Coney Barrett wrote for the majority that clear and unmistakable errors fall into a category of very specific and rare errors, and the history of this category of errors does not include changes in the law. 

“The invalidation of a prior regulation constitutes a ‘change in interpretation of law’ under historical agency practice,” the Trump appointee wrote. “Drawing on decades of history, the VA succinctly explained nearly 30 years ago that review for clear and unmistakable error provides ‘no authority ... for retroactive payment of benefits when,’ as in this case, a court later ‘invalidates a VA interpretation or regulation’ after a benefits decision becomes final.”

George’s claim, the majority said, does not fall under the statutory term clear and unmistakable error. Barrett said the board followed the 1961 regulation when deciding George’s case because it was statutorily obligated to do so. 

“We express no view on the merits of that change in interpretation, which are not before us,” Barrett wrote. “But because it is a change, it cannot support a claim of clear and unmistakable error in the Board’s routine 1977 application of the prior regulation. Put differently, the correct application of a binding regulation does not constitute ‘clear and unmistakable error’ at the time a decision is rendered, even if that regulation is subsequently invalidated.” 

The lead opinion was joined by Justices Roberts, Thomas, Alito, Kagan and Kavanaugh. Justice Gorsuch wrote a dissenting opinion joined in full by Breyer and in part by Sotomayor. 

Gorsuch said George should have at least been afforded a new hearing to see if he could prevail on his claim, calling it inexcusable that the agency refused to offer him one. He said the regulation used to decide George’s case defied Congress so it was always wrong. 

“Even if an agency’s unlawful regulations may bind its own employees until a court says otherwise, that does not mean its decisions applying those regulations to others are error-free,” the Trump appointee wrote. “The regulations on which the VA relied in this case always defied Congress’s express command in § 1111. In that sense, they were always a ‘nullity.'"

Melanie Bostwick, an attorney with Orrick, Herrington & Sutcliffe representing George, did not respond to a request for comment, nor did and the Department of Justice. 

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