George v. McDonough
The Court ruled that veterans cannot use the 'clear and unmistakable error' process to reopen a final benefits denial simply because the VA regulation applied in their case was later found to violate the law.
The decision limits a key pathway veterans have to challenge old, closed benefits decisions, leaving those whose claims were decided under since-invalidated regulations without a route to seek review.
How it got here: The VA Board denied George's 2014 bid to reopen his 1977 case; the Veterans Court and then the Federal Circuit both affirmed; George asked the Supreme Court to step in and the Court agreed to hear it.
The Case in Depth
What happened
Kevin George joined the Marine Corps in 1975. Shortly into training he was hospitalized with schizophrenia that military doctors said was aggravated by his service. After his medical discharge, he applied for VA disability benefits. The VA denied his claim in 1977, applying a regulation that — more than two decades later — the VA and the Federal Circuit concluded directly contradicted federal law. In 2014, George asked the VA to reopen his case on the basis of that error.
The question before the Court
Can a veteran reopen a final VA benefits denial by arguing that the agency regulation used to decide the case was later found to be unlawful?
The Court's answer
No — a veteran cannot use the "clear and unmistakable error" process to reopen a final benefits denial just because a VA regulation used in that decision was later found to violate the law.
The Court reasoned that "clear and unmistakable error" is a legal term of art that Congress borrowed from nearly a century of VA agency practice when it enacted the governing statutes in 1997. Under that longstanding practice, this narrow form of collateral review was always confined to errors apparent from the record and law as they existed at the time of the original decision — it never reached subsequent changes in law or legal interpretation. Because the later invalidation of a prior regulation constitutes a "change in interpretation of law," the Board's 1977 application of the then-binding (though eventually repudiated) regulation was not the kind of error that allows a final decision to be reopened.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Veterans whose benefits were denied under VA rules that the agency or courts later repudiated cannot use the clear-and-unmistakable-error process to reopen those final decisions. This affects veterans like George, whose 1977 denial was based on a regulation the VA itself eventually abandoned — they are left with no avenue to have the original decision reconsidered under the correct legal standard.
What changes now
George's 1977 benefits denial stands, and the Federal Circuit's judgment is affirmed. Veterans in similar situations — whose claims were adjudicated under VA regulations later found to be unlawful — cannot use the clear-and-unmistakable-error process to reopen those closed cases. Because this is a final merits decision, there is no remand; the only avenue remaining for affected veterans would be a new claim based on independent grounds or a change in law going forward.
What this does not decide
The Court does not decide whether the 1961 VA regulation was actually wrong, whether George's schizophrenia was aggravated by his service, or whether he would have been entitled to benefits under the correct legal standard. The ruling addresses only the narrow question of what kinds of errors permit collateral review of a final decision.
Concurrences and dissents
How the Justices voted
Majority (6). Justice Barrett (author), joined by Justice Roberts, Justice Thomas, Justice Alito, Justice Kagan, and Justice Kavanaugh.
Dissent (3). Justice Sotomayor (author), joined by Justice Breyer.
Dissent — Justice Sotomayor
Justice Sotomayor agreed that Congress codified the existing clear-and-unmistakable-error doctrine when it enacted the 1997 statutes, but argued the pre-1997 precedent was unsettled on the specific question of whether judicial invalidation of a regulation that squarely violated an unambiguous statute counted as a 'change in interpretation of law.' Faced with that ambiguity, she would apply the long-standing rule that veterans' benefits statutes must be construed in the veteran's favor, and would allow George's claim to proceed.
Dissent — Justice Gorsuch
“A clear and unmistakable agency error cannot be made to vanish so easily.”Justice Gorsuch's objection to the majority's conclusion that the Board committed no reviewable error by following a regulation later found to defy federal law.
Justice Gorsuch argued that the VA's 1961 regulation always defied Congress's clear command in the presumption-of-soundness statute, making it a legal nullity from the start. Because courts interpreting a statute only explain what the law always meant — they do not change it — the Board's reliance on the invalid regulation was always a clear and unmistakable error, not a mere change in interpretation. He also argued the majority added a limitation to the statutes that Congress never actually enacted, and warned the ruling would shield the VA from accountability for many other improperly denied claims. Read the full dissent →
How the Court got there
The legal reasoning, step by step
- The phrase 'clear and unmistakable error' in the 1997 statutes is a term of art with a long regulatory history. The Court's 'old soil' principle holds that when Congress borrows such a term without defining it, the term carries with it the meaning it had under prior law — here, nearly a century of VA agency practice.
- Under that longstanding practice, a clear-and-unmistakable-error claim had to be based on the record and law that existed at the time of the original decision. A subsequent 'change in law or change in interpretation of law' could never support such a claim — that limitation dates back to at least 1928 and was consistently applied by the VA and the Veterans Court right up to the 1997 codification.
- The Court held that the later invalidation of a prior regulation counts as a 'change in interpretation of law' under this framework. When a court or agency announces that a regulation misread a statute, it is correcting an earlier interpretation — and a corrected misinterpretation is still a changed interpretation, even if the prior reading was always wrong.
- When the VA Board decided George's 1977 appeal, it followed the then-binding 1961 regulation as it was legally required to do. That application was not a 'clear and unmistakable error' at the time; it became erroneous only in hindsight, after the regulation was repudiated more than 25 years later.
- The Court rejected George's argument that the statute's plain text — saying a decision 'is subject' to revision for clear and unmistakable error — overrides the regulatory history. Because Congress was silent on the specific rule barring relief for changed interpretations, the old-soil principle means Congress left that rule in place rather than abolishing it.
- This approach serves important finality interests. Allowing collateral review to reach subsequent legal changes would transform a narrow exception into a broad substitute for ordinary error correction on appeal — the very outcome the limited clear-and-unmistakable-error framework was designed to prevent.