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NVLSP Greatly Disappointed by Supreme Court Ruling Denying Veterans Right to Relief

Released 6/15/22 | Tags:

NVLSP Greatly Disappointed by U.S. Supreme Court Ruling Denying Veterans Right to Relief Under “Clear and Unmistakable Error” For Decisions Based on Clearly Unlawful VA Rules


WASHINGTON - The National Veterans Legal Services Program (NVLSP) is disappointed the United States Supreme Court failed to grant relief for a former Marine, Kevin George, whom the Department of Veterans Affairs (VA) denied benefits based on an unlawful regulation.  In George v. McDonough, the Supreme Court upheld a Federal court’s ruling that the “clear and unmistakable error” did not permit granting relief to Mr. George even though a court invalidated the VA’s regulation as clearly defying the law. NVLSP filed a brief, joined by National Organization of Veterans’ Advocates (NOVA), Paralyzed Veterans of America (PVA), and Service Women’s Action Network (SWAN) as amici curiae, or friends of the Court.  The amici curiae brief was filed with the pro bono assistance of Williams & Connolly LLP. 

“The Supreme Court’s decision today contradicts Congress’ intent and prevents veterans from obtaining benefits wrongly and unlawfully denied by VA,” said NVLSP Director of Litigation Renee Burbank. “Today’s ruling shields VA when it egregiously defies the law through its regulations, and it means that veterans cannot seek the justice they deserve and the benefits they have rightfully earned based on VA error.”

In dissent, Justice Neil Gorsuch cited NLVSP’s brief to highlight the widespread implications of the decision, explaining that the Court’s ruling “risks insulating countless other decisions in which the Department has wrongly denied veteran benefits based on self-serving regulations.”

To ensure that veterans receive the benefits they earned through their service to our country, Congress created an exception to the usual rules of the finality of decisions to permit veterans to challenge VA decisions based on “clear and unmistakable error” (CUE).  CUE allows veterans to open previously denied claims and receive retroactive benefits to the date of the original claim. In their brief, NVLSP and the other organizations detail the vital role that CUE has served for nearly a century to help veterans secure retroactive relief for VA errors.  The Court, however, held that CUE may not be used to reopen a decision based on a regulation later found to be clearly unlawful.

Veteran Kevin George, had first applied for disability benefits in the 1970s and was denied due to a VA regulation.  At the time, VA decisions were unreviewable by courts, and only years later, both VA and a federal court determined that VA’s rule was counter to Congressional directive.  When Mr. George discovered his decision had been based on an unlawful rule, he sought to reopen his case based on CUE.

The National Veterans Legal Services Program (NVLSP) is an independent, nonprofit veterans service organization that has served active duty military personnel and veterans since 1981. NVLSP strives to ensure that our nation honors its commitment to its 22 million veterans and active duty personnel by ensuring they have the benefits they have earned through their service to our country. NVLSP has represented veterans in lawsuits that compelled enforcement of the law where the VA or other military services denied benefits to veterans in violation of the law.  NVLSP’s success in these lawsuits has resulted in more than $5.2 billion dollars being awarded in disability, death and medical benefits to hundreds of thousands of veterans and their survivors. NVLSP offers training for attorneys and other advocates; connects veterans and active duty personnel with pro bono legal help when seeking disability benefits; publishes the nation's definitive guide on veteran benefits; and represents and litigates for veterans and their families before the VA, military discharge review agencies and federal courts. For more information go to https://www.nvlsp.org/.

Media contact:
Patty Briotta, office 202-621-5698, patty@nvlsp.org

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