Smith v. McDonough, Case Number 2022-2169, decided May 20, 2024 is a decision by the Federal Circuit that discusses CUE and affirms a finding by the Veterans Court that found no error in the interpretation of 38 CFR 20.1403.
The veteran developed a deep vein thrombosis (DVT) in service and discharged as no longer fit for duty. Subsequently he applied for service connection of the DVT but was denied in a decision that said the DVT had resolved. The decision was affirmed by the Board in 1996 and the decision was appealed.
In 2016, the veteran filed a motion to revise the 1996 Board decision arguing “there was enough evidence in front of the 1996 Board that showed extant DVT, including Physical Evaluation Board (“PEB”) reports, to have overcome the well-grounded threshold. He thus asserted that his claim should have been allowed to proceed aided by the VA’s duty to assist.” Id. at *3.
The Board denied the motion but an appeal to the Veterans Court led to a remand to consider whether PEB reports from 1991 and 1994 were probative of a diagnosis of DVT. On remand, the Board determined there was some evidence to support his claim and the 1996 dismissal of the claim as not well grounded was incorrect. However, the Board held the error was not enough to support a finding of CUE. It determined: “Given the presence of evidence on both sides of the question, the Board could not conclude “that it was absolutely clear that the Veteran did have a diagnosis of DVT.”” Id. at *4.
The Veterans Corut affirmed saying the “error did not constitute CUE because the record was not “manifestly clear that the veteran had a current disability” at the time of the 1996 Board Decision.” Id. at *4.
The veteran argued “the Veterans Court legally erred in interpreting 38 C.F.R. § 20.1403 by limiting CUE-eligible errors to those that manifestly changed the outcome “with respect to the merits of the underlying claim” and, specifically, limiting CUE-eligible errors to those in which “but for an alleged error, service connection would have been awarded.” Veterans Court Decision.” Id. at *4.
First, the Federal Circuit found it had jurisdiction to consider the issue as it was one of regulatory interpretation. Id. at *6.
Then, the Federal Circuit turned to the merits. It noted:
“Smith contends that the Veterans Court incorrectly interpreted 38 C.F.R. § 20.1403 to require that but-for the error, the veteran would have been awarded service connection. See Veterans Court Decision at *1. Smith argues that the regulation does not limit the outcomes affected by CUE to changes to the ultimate determination of service connection. He contends that a change in the course of proceedings that may change the ultimate award of service connection may suffice as a manifest change in the outcome. Smith therefore argues that allowing his claim to proceed to a merits determination after triggering the VA’s duty to assist would have met the only test set forth in the regulation.” Id. at *7.
The Court disagreed and determined: “the “manifestly different” outcome standard of 38 C.F.R. § 20.1403 cannot be met by correcting an error that leads only to continued litigation with an uncertain result on the merits of the claim. We therefore conclude that the Veterans Court properly interpreted the regulation in affirming the 2020 Board’s Decision.” Id. at *8. The Court pointed to Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999) as similar if not controlling.
This case demonstrates the Court’s have interpreted the CUE standard strictly so that a winning CUE is difficult.
Decision by Judge Linn and joined by Judges Lourie and Stoll.
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