Mark W. Smith v. Denis McDonough, Secretary of Veterans Affairs

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
______________________
K ENNETH M. CARPENTER , Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
REBECCA SARAH K RUSER , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for respondent-appellee.
Also represented by BRIAN M. BOYNTON, MARTIN F.
HOCKEY , J R., BRENDAN D AVID J ORDAN, P ATRICIA M.
MCCARTHY ; BRIAN D. G RIFFIN, J ONATHAN K RISCH , Office of
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Case: 22-2169 Document: 38 Page: 1 Filed: 05/20/2024

-- 1 of 11 --

SMITH v. MCDONOUGH 2
Before L OURIE, L INN, and STOLL , Circuit Judges.
L INN, Circuit Judge
Mark W. Smith (“Smith”), a United States Navy vet-
eran, appeals the decision of the United States Court of Ap-
peals for Veterans Claims (“Veterans Court”) affirming the
denial by the Board of Veterans Appeals (“Board”) of
Smith’s motion to revise a prior Board decision on the basis
of clear and unmistakable error (“CUE”). Because the Vet-
erans 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 Octo-
ber of 1991, he was diagnosed with deep vein thrombosis
(“DVT”)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 (“RO”) of the Department of Veterans Affairs (“VA”)
denied his request. Smith appealed to the Board.
The Board affirmed the denial of service connection in
1996. J.App’x at 22–34 (“1996 Board Decision”). It held
that Smith’s claim for service connection was not well-
grounded because “there is no medical evidence to show
that he currently has [DVT].” Id. at 30.2 Smith did not
appeal the Board’s 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 Smith’s original claim, vet-
erans 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: 2 Filed: 05/20/2024

-- 2 of 11 --

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 effec-
tive date of October 31, 2012.
In 2016, Smith filed a motion seeking to revise the 1996
Board Decision, alleging that the 1996 Board’s determina-
tion 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 Phys-
ical 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. The Board denied his motion. J.App’x
at 42–49. Smith appealed to the Veterans Court. Subse-
quently, 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) (“2020 Board Decision”), J.App’x at 106–19. The
2020 Board agreed with Smith that because there was
some evidence that supported his claim, the Board’s dis-
missal 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 evi-
dence on both sides of the question, the Board could not
This requirement conditioned the VA’s duty to assist upon
whether the veteran presented a well-grounded claim. No-
len v. Gober, 222 F.3d 1356, 1360 (Fed. Cir. 2000). On No-
vember 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: 3 Filed: 05/20/2024

-- 3 of 11 --

SMITH v. MCDONOUGH 4
conclude “that it was absolutely clear that the Veteran did
have a diagnosis of DVT.” Id., J.App’x 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) (“Veterans Court Deci-
sion”) (unreported). The Veterans Court agreed with
Smith and the Board that the finding that Smith’s claim
was not well-grounded was wrong, given the presence in
1996 of evidence on both sides of the question. The Veter-
ans Court also agreed that the Board in 1996 “should have
allowed the claim to move forward.” Id. at *3. The Veter-
ans Court nonetheless concluded that this 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. Because Smith could not
show that correcting the well-groundedness error “would
have resulted in a grant of service connection for that con-
dition,” he failed to make out a claim for CUE. Id. (citing
King v. Shinseki, 26 Vet. App. 433, 441 (2014)). Smith ap-
peals.
D ISCUSSION
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 “with
respect to the merits of the underlying claim” and, specifi-
cally, limiting CUE-eligible errors to those in which “but
for an alleged error, service connection would have been
awarded.” Veterans Court Decision, at *1, *3.
The Secretary first responds that we lack jurisdiction
because the Veterans Court did not interpret the regulation
or “elaborate[]” on the meaning of the statute or regulation.
See Forshey v. Principi, 284 F.3d 1335, 1349 (Fed. Cir.
2002) (en banc) (“[A]n interpretation of a statute or regula-
tion occurs when its meaning is elaborated by the court.”),
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: 4 Filed: 05/20/2024

-- 4 of 11 --

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 regula-
tion 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 man-
ifestly changed the outcome of Smith’s claim for service
connection.
I
We first consider our jurisdiction. Under 38 U.S.C.
§ 7292(c), this court has exclusive jurisdiction to review
“any challenge to the validity of any statute or regulation
or any interpretation thereof brought under this section.”
This includes review of “all relevant questions of law” and
“any regulation or any interpretation thereof (other than a
determination as to a factual matter) that was relied upon”
by the Veterans Court that is, inter alia, “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law.” Id. § 7292(d)(1). In cases that do not implicate
constitutional rights, our review does not extend to factual
determinations or to “a challenge to a law or regulation as
applied to the facts of a particular case.” Id. § 7292(d)(2).
As noted above, the Secretary argues that the Veterans
Court here merely applied the CUE regulation without in-
terpretation. Smith responds that the Veterans Court did
interpret 38 C.F.R. § 20.1403 by equating “manifestly dif-
ferent outcome” with “grant of service connection,” thus
limiting the types of errors cognizable under the regula-
tion.
Here, the Veterans Court first stated that a CUE claim
requires a claimant to “show that the error in question
manifestly changed the outcome,” then added the interpre-
tive gloss that the error must “manifestly change[] the out-
come with respect to the merits of the underlying claim.”
Veterans Court Decision, at *1 (emphasis added). It fur-
ther interpreted that language as requiring a claimant to
Case: 22-2169 Document: 38 Page: 5 Filed: 05/20/2024

-- 5 of 11 --

SMITH v. MCDONOUGH 6
show that, “but for an alleged error, service connection
would have been awarded.” Id. The Veterans Court then
relied upon this standard to deny Smith’s CUE claim.
We consider the Veterans Court’s gloss to be an elabo-
ration of the regulation. The correctness of that elabora-
tion 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 “a manifest error that would have changed the
outcome of the decision . . . raises a challenge concerning
the interpretation of the ‘clear and unmistakable error’ reg-
ulation that was relied on” by the Veterans Court).
We turn to the merits.
II
A
When a Board decision is not appealed, as the Board’s
1996 Decision here, it ordinarily becomes “final,” and “not
subject to review.” 38 C.F.R. § 20.1100. A limited statu-
tory exception to the finality of a Board decision allows a
collateral attack based on “clear and unmistakable error”
(“CUE”). 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 er-
ror, of fact or of law, that when called to the atten-
tion 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: 6 Filed: 05/20/2024

-- 6 of 11 --

SMITH v. MCDONOUGH 7
must have been an error in the Board’s adjudica-
tion 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 dif-
ferent result would have ensued, the error com-
plained of cannot be clear and unmistakable.
38 C.F.R. § 20.1403(a), (c) (emphases added). The regula-
tion also expressly excludes “[t]he Secretary’s failure to ful-
fill the duty to assist” as a basis for CUE. Id.
§ 20.1403(d)(2).
B
Smith contends that the Veterans Court incorrectly in-
terpreted 38 C.F.R. § 20.1403 to require that but-for the er-
ror, the veteran would have been awarded service
connection. See Veterans Court Decision at *1. Smith ar-
gues that the regulation does not limit the outcomes af-
fected 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. See Smith v. McDonough, No.
2022-2169, Oral Argument at 4:25–4:40 (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 Secretary—
and referring to the language of the regulation—an error
that “manifestly changed the outcome” must have changed
the “Board’s adjudication of the appeal.” The Secretary as-
serts that the Veterans Court here applied the correct legal
standard in asking whether the 1996 Board’s error holding
Smith’s claim to be not well-grounded would have “mani-
festly changed the outcome” of Smith’s claim for service
Case: 22-2169 Document: 38 Page: 7 Filed: 05/20/2024

-- 7 of 11 --

SMITH v. MCDONOUGH 8
connection. Veterans Court Decision at *2–3. 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 “manifestly
changed” outcome and “outcome determinative” test. 26
Vet. App. at 437, 439–41.
We agree with the Secretary. For the reasons more
fully set forth, infra, the “manifestly different” outcome
standard of 38 C.F.R. § 20.1403 cannot be met by correct-
ing 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.
First, the regulation requires not just a manifestly dif-
ferent result, but an error “in the Board’s adjudication of
the appeal” that would have “manifestly changed the out-
come.” 38 C.F.R. § 20.1403(c). It would be a strained read-
ing 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, Smith’s 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: “manifestly
change[] the outcome.” See Yates, 213 F.3d at 1375 (noting
that the regulations at 38 C.F.R. § 20.1403 “are consistent
with our holding in Bustos”). Smith’s briefing does not con-
test 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 regu-
lation 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: 8 Filed: 05/20/2024

-- 8 of 11 --

SMITH v. MCDONOUGH 9
connection for post-traumatic stress disorder (“PTSD”) and
alcohol and substance abuse. Id. at 1379. He was initially
denied service connection for PTSD and alcohol and sub-
stance 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 connec-
tion 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 en-
titlement to service connection for drug and alcohol abuse
as secondary to PTSD and failed to consider certain evi-
dence supporting his position. Id. The Veterans Court held
that, “even if the premise of error is accepted”—that the RO
erred and should have considered his entitlement to service
connection for drug and alcohol abuse secondary to PTSD—
“if it is not absolutely clear that a different result would
have ensued, the error is not CUE.” Id. at 1379. In
Bustos’s case, the court held that even if the evidence had
been considered, it would have “merely put the evidence in
equipoise [and] would not have ‘manifestly changed’ the
outcome of his original rating decision.” Id.
On appeal, Bustos argued that the Veterans Court ap-
plied too strict a standard for CUE by requiring a mani-
festly different result. Rather, he argued, CUE only
requires a veteran to show that an RO error “might possi-
bly change the outcome” and that the error “seriously af-
fects the fairness, integrity, or public reputation of the
proceedings.” Id. at 1380. This court held that this was
not enough: “CUE must be outcome-determinative,” such
that the error must have a “dispositive impact on the ulti-
mate outcome” of the veteran’s claim. Id. at 1381 (“We
therefore hold that, to prove the existence of CUE as set
forth in § 3.105(a), the claimant must show that an out-
come-determinative error occurred, that is, an error that
would manifestly change the outcome of a prior decision.”);
Yates, 213 F.3d at 1374–75 (same). Because the evidence
of Smith’s entitlement to service connection for drug and
Case: 22-2169 Document: 38 Page: 9 Filed: 05/20/2024

-- 9 of 11 --

SMITH v. MCDONOUGH 10
alcohol abuse as secondary to PTSD was, at best, in equi-
poise (based on the Veterans Court’s holding), the RO’s er-
ror in failing to consider Bustos’s argument and evidence
on that point was not “outcome-determinative” and there-
fore could not support CUE at the RO. Bustos, 179 F.3d at
1380–81.
Similarly, here, Smith cannot support CUE by identi-
fying the continuation of his claim as the “manifestly dif-
ferent outcome.” 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 “absolutely clear,” 38 C.F.R. § 20.1403(c),
that correcting the error would lead to a manifestly differ-
ent outcome, not merely a potentially different outcome.
Third, the regulation expressly excludes the VA’s fail-
ure to fulfill the duty to assist from being the kind of “out-
come” or “result” that can itself support CUE. As an
example of an error that is not CUE, the regulation lists:
“The Secretary’s failure to fulfill the duty to assist.” Id.
§ 20.1403(d)(2). Here, the only definitive effect of correct-
ing 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 “very specific and rare kind of error.” 28
C.F.R. § 20.1403(a). It is not intended to vindicate all mis-
takes. “The modifiers ‘clear’ and ‘unmistakable’ indicate
that [CUE] is a narrow category excluding some forms of
error cognizable in other contexts.” 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 un-
certain result. We hold that a revision or reversal based on
CUE—as a collateral attack on an already final
Case: 22-2169 Document: 38 Page: 10 Filed: 05/20/2024

-- 10 of 11 --

SMITH v. MCDONOUGH 11
adjudication—requires an error that once corrected alters,
with absolute clarity, the merits outcome of a veteran’s
claim.
The Veterans Court in this case applied the correct le-
gal standard for CUE. It required Smith to show, in addi-
tion to showing error in the 1996 Board’s Decision, that
“had the error not been made, the outcome would have been
manifestly different.” Veterans Court Decision at *2 (citing
George v. Wilkie, 32 Vet. App. 318, 323 (2020)). The sub-
stantive 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 Board’s error would have
compelled the conclusion “to which reasonable minds could
not differ,” 38 C.F.R. § 20.1403(a), that Smith would have
been awarded service connection.
CONCLUSION
For the foregoing reasons, the Veterans Court’s deci-
sion is affirmed.
AFFIRMED
COSTS
Each party shall bear its own costs.
Case: 22-2169 Document: 38 Page: 11 Filed: 05/20/2024

-- 11 of 11 --