Case: 22-2169 Document: 38 Page: 1 Filed: 05/20/2024
United States Court of Appeals
for the Federal Circuit
______________________
MARK W. SMITH,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-2169
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-8633, Judge Joseph L. Toth.
______________________
Decided: May 20, 2024
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
REBECCA SARAH KRUSER, Commercial Litigation
Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, MARTIN F.
HOCKEY, JR., BRENDAN DAVID JORDAN, PATRICIA M.
MCCARTHY; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 22-2169 Document: 38 Page: 2 Filed: 05/20/2024
2 SMITH v. MCDONOUGH
Before LOURIE, LINN, and STOLL, Circuit Judges.
LINN, Circuit Judge
Mark W. Smith (âSmithâ), a United States Navy veteran, appeals the decision of the United States Court of Appeals for Veterans Claims (âVeterans Courtâ) affirming the
denial by the Board of Veterans Appeals (âBoardâ) of
Smithâs motion to revise a prior Board decision on the basis
of clear and unmistakable error (âCUEâ). Because the Veterans Court did not legally err in interpreting the CUE
standard in 38 C.F.R. § 20.1403, we affirm.
BACKGROUND
Smith began his service in the Navy in 1986. In October of 1991, he was diagnosed with deep vein thrombosis
(âDVTâ) 1 and was discharged as no longer physically fit for
duty. Soon thereafter, a service treatment record noted
that his DVT was resolved. Smith later filed a claim for
service connection for DVT. In January 1992, the Regional
Office (âROâ) of the Department of Veterans Affairs (âVAâ)
denied his request. Smith appealed to the Board.
The Board affirmed the denial of service connection in
1996. J.Appâx at 22â34 (â1996 Board Decisionâ). It held
that Smithâs claim for service connection was not well-grounded because âthere is no medical evidence to show
that he currently has [DVT].â Id. at 30. 2 Smith did not
appeal the Boardâs decision, and it became final.
1 Deep vein thrombosis occurs when a blood clot
forms in a deep vein in the body; it can cause leg pain and
swelling.
2 During the pendency of Smithâs original claim, veterans had the burden of submitting evidence that their
claims were well-grounded. 38 U.S.C. § 5107(a) (1994).
Case: 22-2169 Document: 38 Page: 3 Filed: 05/20/2024
SMITH v. MCDONOUGH 3
In October of 2012, Smith filed a new claim for service
connection for DVT, and in October of 2013, the VA granted
service connection with a 40% disability rate and an effective date of October 31, 2012.
In 2016, Smith filed a motion seeking to revise the 1996
Board Decision, alleging that the 1996 Boardâs determination that his claim was not well-grounded was tainted by
CUE. He argued that there was enough evidence in front
of the 1996 Board that showed extant DVT, including Physical Evaluation Board (âPEBâ) reports, to have overcome
the well-grounded threshold. He thus asserted that his
claim should have been allowed to proceed aided by the
VAâs duty to assist. The Board denied his motion. J.Appâx
at 42â49. Smith appealed to the Veterans Court. Subsequently, Smith and the Secretary filed a joint motion for
remand for the Board to consider whether the PEB reports
from 1991 and 1994 were probative of a diagnosis of DVT.
On remand, the Board issued the 2020 Board Decision
now on appeal, again denying a CUE revision for the 1996
Board Decision. In re Smith, No. 22-2169 (B.V.A. Sept. 4,
2020) (â2020 Board Decisionâ), J.Appâx at 106â19. The
2020 Board agreed with Smith that because there was
some evidence that supported his claim, the Boardâs dismissal of his claim in 1996 as not being well-grounded was
incorrect. Nonetheless, the Board held that the error was
insufficient to support CUE. Given the presence of evidence on both sides of the question, the Board could not
This requirement conditioned the VAâs duty to assist upon
whether the veteran presented a well-grounded claim. Nolen v. Gober, 222 F.3d 1356, 1360 (Fed. Cir. 2000). On November 9, 2000, Congress amended § 5107(a), removing the
well-grounded claim requirement. See 38 U.S.C. 5107(a)
(2000).
Case: 22-2169 Document: 38 Page: 4 Filed: 05/20/2024
4 SMITH v. MCDONOUGH
conclude âthat it was absolutely clear that the Veteran did
have a diagnosis of DVT.â Id., J.Appâx at 115.
On appeal, the Veterans Court affirmed the denial of
CUE. Smith v. McDonough, No. 20-8633, 2022 WL
1719119 (Vet. App. May 27, 2022) (âVeterans Court Decisionâ) (unreported). The Veterans Court agreed with
Smith and the Board that the finding that Smithâs claim
was not well-grounded was wrong, given the presence in
1996 of evidence on both sides of the question. The Veterans Court also agreed that the Board in 1996 âshould have
allowed the claim to move forward.â
Id. at *3. The Veterans Court nonetheless concluded that this error did not
constitute CUE because the record was not âmanifestly
clear that the veteran had a current disabilityâ at the time
of the 1996 Board Decision.
Id. Because Smith could not
show that correcting the well-groundedness error âwould
have resulted in a grant of service connection for that condition,â he failed to make out a claim for CUE.
Id. (citing
King v. Shinseki,
26 Vet. App. 433, 441 (2014)). Smith appeals.
DISCUSSION
Smith argues that 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 âwith
respect to the merits of the underlying claimâ and, specifically, limiting CUE-eligible errors to those in which âbut
for an alleged error, service connection would have been
awarded.â Veterans Court Decision, at *1, *3.
The Secretary first responds that we lack jurisdiction
because the Veterans Court did not interpret the regulation
or âelaborate[]â on the meaning of the statute or regulation.
See Forshey v. Principi, 284 F.3d 1335, 1349 (Fed. Cir.
2002) (en banc) (â[A]n interpretation of a statute or regulation occurs when its meaning is elaborated by the court.â),
superseded on other grounds by statute, Pub. L. No. 107-
330, § 402(a),
116 Stat. 2820, 2832 (2002). Instead, the
Case: 22-2169 Document: 38 Page: 5 Filed: 05/20/2024
SMITH v. MCDONOUGH 5
Secretary argues that the Veterans Court merely applied
well-settled legal rules to a particular factual scenario and
whether the Veterans Court correctly applied the regulation to the facts of this case falls outside our jurisdiction.
On the merits, the Secretary argues that the Veterans
Court correctly required Smith to show an error that manifestly changed the outcome of Smithâs claim for service
connection.
I
We first consider our jurisdiction. Under 38 U.S.C.
§ 7292(c), this court has exclusive jurisdiction to review
âany challenge to the validity of any statute or regulation
or any interpretation thereof brought under this section.â
This includes review of âall relevant questions of lawâ and
âany regulation or any interpretation thereof (other than a
determination as to a factual matter) that was relied uponâ
by the Veterans Court that is, inter alia, âarbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law.â
Id. § 7292(d)(1). In cases that do not implicate
constitutional rights, our review does not extend to factual
determinations or to âa challenge to a law or regulation as
applied to the facts of a particular case.â Id. § 7292(d)(2).
As noted above, the Secretary argues that the Veterans
Court here merely applied the CUE regulation without interpretation. Smith responds that the Veterans Court did
interpret 38 C.F.R. § 20.1403 by equating âmanifestly different outcomeâ with âgrant of service connection,â thus
limiting the types of errors cognizable under the regulation.
Here, the Veterans Court first stated that a CUE claim
requires a claimant to âshow that the error in question
manifestly changed the outcome,â then added the interpretive gloss that the error must âmanifestly change[] the outcome with respect to the merits of the underlying claim.â
Veterans Court Decision, at *1 (emphasis added). It further interpreted that language as requiring a claimant to
Case: 22-2169 Document: 38 Page: 6 Filed: 05/20/2024
6 SMITH v. MCDONOUGH
show that, âbut for an alleged error, service connection
would have been awarded.â Id. The Veterans Court then
relied upon this standard to deny Smithâs CUE claim.
We consider the Veterans Courtâs gloss to be an elaboration of the regulation. The correctness of that elaboration is, thus, a question of regulatory interpretation, over
which we have jurisdiction under § 7292(d)(1). See Yates v.
West, 213 F.3d 1372, 1374 (Fed. Cir. 2000) (holding that the
question of whether clear and unmistakable error at the
RO requires âa manifest error that would have changed the
outcome of the decision . . . raises a challenge concerning
the interpretation of the âclear and unmistakable errorâ regulation that was relied onâ by the Veterans Court).
We turn to the merits.
II
A
When a Board decision is not appealed, as the Boardâs
1996 Decision here, it ordinarily becomes âfinal,â and ânot
subject to review.â 38 C.F.R. § 20.1100. A limited statutory exception to the finality of a Board decision allows a
collateral attack based on âclear and unmistakable errorâ
(âCUEâ).
38 U.S.C. § 7111. The relevant VA regulation
sets the standard for CUE:
(a) General. Clear and unmistakable error is a very
specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to
which reasonable minds could not differ, that the
result would have been manifestly different but for
the error.
...
(c) Errors that constitute clear and unmistakable
error. To warrant revision of a Board decision on
the grounds of clear and unmistakable error, there
Case: 22-2169 Document: 38 Page: 7 Filed: 05/20/2024
SMITH v. MCDONOUGH 7
must have been an error in the Boardâs adjudication of the appeal which, had it not been made,
would have manifestly changed the outcome when
it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.
38 C.F.R. § 20.1403(a), (c) (emphases added). The regulation also expressly excludes â[t]he Secretaryâs failure to fulfill the duty to assistâ as a basis for CUE.
Id.
§ 20.1403(d)(2).
B
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 VAâs duty to assist would have met the only test set
forth in the regulation. See Smith v. McDonough, No.
2022-2169, Oral Argument at 4:25â4:40 (Fed. Cir. Mar. 8,
2024) available at <https://oralarguments
.cafc.uscourts.gov/default.aspx?fl=222169_03082024.mp3>
(last accessed May 15, 2024).
The Secretary disagrees. According to the Secretaryâ
and referring to the language of the regulationâan error
that âmanifestly changed the outcomeâ must have changed
the âBoardâs adjudication of the appeal.â The Secretary asserts that the Veterans Court here applied the correct legal
standard in asking whether the 1996 Boardâs error holding
Smithâs claim to be not well-grounded would have âmanifestly changed the outcomeâ of Smithâs claim for service
Case: 22-2169 Document: 38 Page: 8 Filed: 05/20/2024
8 SMITH v. MCDONOUGH
connection. Veterans Court Decision at *2â3. Further, the
Secretary argues that the Veterans Court was correct to
cite to King, which cited and applied the standard in Bustos
and § 20.1403 for its articulation of the âmanifestly
changedâ outcome and âoutcome determinativeâ test. 26
Vet. App. at 437, 439â41.
We agree with the Secretary. For the reasons more
fully set forth, infra, the âmanifestly differentâ 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 Boardâs Decision.
First, the regulation requires not just a manifestly different result, but an error âin the Boardâs adjudication of
the appealâ that would have âmanifestly changed the outcome.â 38 C.F.R. § 20.1403(c). It would be a strained reading of the language of the regulation to interpret it to cover
a situation in which the only thing that was changed was
the procedural path to an adjudication that might remain
unchanged.
Second, Smithâs argument here essentially mirrors the
argument we rejected in Bustos. Bustos addressed the VA
regulation governing CUE at the RO, but the holdings are
equally applicable to the key language here: âmanifestly
change[] the outcome.â See Yates, 213 F.3d at 1375 (noting
that the regulations at
38 C.F.R. § 20.1403 âare consistent
with our holding in Bustosâ). Smithâs briefing does not contest the applicability of Bustos to the standard for CUE at
the Board or identify any dispositive difference between
the regulation governing CUE at the Board and the regulation governing CUE at the RO at issue in Bustos.
In Bustos, we considered what effect an error must
have on the outcome of a case in order for it to be considered
clear and unmistakable error. 179 F.3d 1378 (Fed. Cir.
1999). Bustos, an Army veteran, filed a claim for service
Case: 22-2169 Document: 38 Page: 9 Filed: 05/20/2024
SMITH v. MCDONOUGH 9
connection for post-traumatic stress disorder (âPTSDâ) and
alcohol and substance abuse.
Id. at 1379. He was initially
denied service connection for PTSD and alcohol and substance abuse, the latter because of his prior history of such
abuse. He eventually received a 100% disability rating for
PTSD, but the VA maintained its denial of service connection for alcohol and substance abuse in a 1998 RO decision.
Id. After the decision had become final, he brought a CUE
claim, arguing that the RO erroneously failed to award entitlement to service connection for drug and alcohol abuse
as secondary to PTSD and failed to consider certain evidence supporting his position.
Id. The Veterans Court held
that, âeven if the premise of error is acceptedââthat the RO
erred and should have considered his entitlement to service
connection for drug and alcohol abuse secondary to PTSDâ
âif it is not absolutely clear that a different result would
have ensued, the error is not CUE.â
Id. at 1379. In
Bustosâs case, the court held that even if the evidence had
been considered, it would have âmerely put the evidence in
equipoise [and] would not have âmanifestly changedâ the
outcome of his original rating decision.â
Id.
On appeal, Bustos argued that the Veterans Court applied too strict a standard for CUE by requiring a manifestly different result. Rather, he argued, CUE only
requires a veteran to show that an RO error âmight possibly change the outcomeâ and that the error âseriously affects the fairness, integrity, or public reputation of the
proceedings.â Id. at 1380. This court held that this was
not enough: âCUE must be outcome-determinative,â such
that the error must have a âdispositive impact on the ultimate outcomeâ of the veteranâs claim.
Id. at 1381 (âWe
therefore hold that, to prove the existence of CUE as set
forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that
would manifestly change the outcome of a prior decision.â);
Yates, 213 F.3d at 1374â75 (same). Because the evidence
of Smithâs entitlement to service connection for drug and
Case: 22-2169 Document: 38 Page: 10 Filed: 05/20/2024
10 SMITH v. MCDONOUGH
alcohol abuse as secondary to PTSD was, at best, in equipoise (based on the Veterans Courtâs holding), the ROâs error in failing to consider Bustosâs argument and evidence
on that point was not âoutcome-determinativeâ and therefore could not support CUE at the RO. Bustos, 179 F.3d at
1380â81.
Similarly, here, Smith cannot support CUE by identifying the continuation of his claim as the âmanifestly different outcome.â While allowing his claim to proceed would
be a change in the course of proceedings that may lead to a
change in the outcome, that is not enough. CUE requires
that it would be âabsolutely clear,â 38 C.F.R. § 20.1403(c),
that correcting the error would lead to a manifestly different outcome, not merely a potentially different outcome.
Third, the regulation expressly excludes the VAâs failure to fulfill the duty to assist from being the kind of âoutcomeâ or âresultâ that can itself support CUE. As an
example of an error that is not CUE, the regulation lists:
âThe Secretaryâs failure to fulfill the duty to assist.â Id.
§ 20.1403(d)(2). Here, the only definitive effect of correcting the erroneous well-groundedness determination would
have been to trigger the duty to assist. Because failing to
fulfill the duty to assist is not an outcome-determinative
error, neither is the failure to trigger the duty to assist.
CUE is a âvery specific and rare kind of error.â 28
C.F.R. § 20.1403(a). It is not intended to vindicate all mistakes. âThe modifiers âclearâ and âunmistakableâ indicate
that [CUE] is a narrow category excluding some forms of
error cognizable in other contexts.â George v. McDonough,
596 U.S. 740, 746 (2022). Whereas a direct appeal allows
reversal or vacatur upon a showing of any harmful legal,
factual, or procedural error, CUE is not intended to serve
as an opportunity to continue litigation leading to an uncertain result. We hold that a revision or reversal based on
CUEâas a collateral attack on an already final
Case: 22-2169 Document: 38 Page: 11 Filed: 05/20/2024
SMITH v. MCDONOUGH 11
adjudicationârequires an error that once corrected alters,
with absolute clarity, the merits outcome of a veteranâs
claim.
The Veterans Court in this case applied the correct legal standard for CUE. It required Smith to show, in addition to showing error in the 1996 Boardâs Decision, that
âhad the error not been made, the outcome would have been
manifestly different.â Veterans Court Decision at *2 (citing
George v. Wilkie, 32 Vet. App. 318, 323 (2020)). The substantive right Smith sought to vindicate was the right to
service connection as of the 1996 Board decision. It was
thus not error for the Veterans Court to require Smith to
show that correcting the 1996 Boardâs error would have
compelled the conclusion âto which reasonable minds could
not differ,â
38 C.F.R. § 20.1403(a), that Smith would have
been awarded service connection.
CONCLUSION
For the foregoing reasons, the Veterans Courtâs decision is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
