George v. McDonough

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 740–762
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 15, 2022
REBECCA A. WOMELDORF
reporter of decisions
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740 OCTOBER
TERM, 2021
Syllabus
GEORGE v. McDONOUGH, SECRETARY OF
VETERANS
AFFAIRS
certiorari to the united states court of appeals for
the federal circuit
No. 21–234. Argued April 19, 2022—Decided June 15, 2022
When petitioner Kevin George joined the Marine Corps in 1975, he did not
disclose his history of schizophrenic episodes, and a medical examination
noted no mental disorders. After George suffered an episode during
training, the Marines medically discharged him. George then applied
to the Department of Veterans Affairs under 38 U. S. C. § 1110 for veter-
ans' disability benefts based on his schizophrenia. A regional offce of
the VA denied George's claim, and the VA's Board of Veterans' Appeals
denied his appeal in 1977.
In 2014, George asked the Board to revise its fnal decision. When
the VA denies a benefts claim, that decision generally becomes “fnal
and conclusive and may not be reviewed by any other offcial or by
any court” after the veteran exhausts the opportunity for direct appeal.
§ 511(a); see § 7104(a). But George sought collateral review under a
statutory exception allowing a veteran to seek revision of a fnal benefts
decision at any time on grounds of “clear and unmistakable error.”
§§ 5109A, 7111; see 38 CFR §§ 3.105, 20.1400–20.1411. In particular, he
claimed that the Board clearly and unmistakably erred by applying a
later invalidated regulation to deny his claim for benefts without hold-
ing the VA to its burden of proof to rebut the statutory presumption
that he was in sound condition when he entered service.
The Board denied George's claim for collateral relief, and the Veterans
Court affrmed. The Federal Circuit also affrmed, concluding that the
application of a later invalidated regulation does not fall into the narrow
category of “clear and unmistakable error” permitting revision of a fnal
decision under 38 U. S. C. §§ 5109A and 7111.
Held: The invalidation of a VA regulation after a veteran's benefts deci-
sion becomes fnal cannot support a claim for collateral relief based on
clear and unmistakable error. Pp. 746–753.
(a) This case turns on the meaning of the 1997 statute subjecting a
fnal veterans' benefts decision to collateral review on grounds of “clear
and unmistakable error.” 111 Stat. 2271 (38 U. S. C. §§ 5109A, 7111).
No statute defnes the term “clear and unmistakable error,” but the
modifers “clear” and “unmistakable” as well as the statutory structure

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741
Syllabus
suggest a narrow category. A robust regulatory backdrop flls in the
det
ails. Where Congress employs a term of art “ ` “obviously trans-
planted from another legal source,” ' it ` “brings the old soil with it.” ' ”
Taggart v. Lorenzen, 587 U. S. –––, –––. That principle applies here.
The Court agrees with the Federal Circuit that Congress “codif[ied] and
adopt[ed] the [clear-and-unmistakable-error] doctrine as it had devel-
oped under” decades of prior agency practice. Cook v. Principi, 318
F. 3d 1334, 1344 (en banc). That history reveals that this category of
error does not encompass a subsequent “change in law . . . or a change
in interpretation of law.” 38 CFR § 3.105 (Cum. Supp. 1963). And the
invalidation of a prior regulation constitutes a “change in interpretation
of law” under historical agency practice. Defned by this regulatory
history, the statutory term “clear and unmistakable error” does not en-
compass a claim like George's. Pp. 746–749.
(b) In response, George argues that the VA has distorted the history
of agency practice that the 1997 statute codifed. But across a century
of review for clear and unmistakable error, George can muster only one
uncertain outlier case sustaining a claim that arguably resembles his,
which does not move the mountain of contrary regulatory authority.
He alternatively argues that the VA is wrong to call a later decision
invalidating a regulation a “change in interpretation of law.” But that
is a perfectly natural use of language. George tries to bolster his posi-
tion by invoking cases explaining that a judicial decision states what the
statute “always meant,” Rivers v. Roadway Express, Inc., 511 U. S.
298, 313, n. 12, and an unauthorized regulation is a “ `nullity,' ” Dixon v.
United States, 381 U. S. 68, 74. But those general principles do not
disturb the conclusion that the Board's application of a then-binding reg-
ulation is not the kind of “clear and unmistakable error” for which collat-
eral relief is available under §§ 5109A and 7111. And that longstanding
VA approach is consistent with the general rule that the new interpreta-
tion of a statute can only retroactively affect decisions still open on
direct review.
George also leans on what he describes as the plain meaning of the
words “clear and unmistakable error.” But as he concedes elsewhere,
the real question is not what might be called clear and unmistakable
error in the abstract, but what the prevailing understanding of this term
of art was when Congress codifed it. The fact that Congress did not
expressly enact the specifc regulatory principle barring collateral relief
for subsequent changes in interpretation does not mean that the princi-
ple did not carry over to the statute. Statutory “silence” on the details
of prior regulatory practice indicates that Congress “left the matter
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742 GEORGE
v. McDONOUGH
Opinion of the Court
where it was pre-[codifcation].” Kucana v. Holder, 558 U. S. 233, 250.
Pp
. 749–753.
991 F. 3d 1227, affrmed.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, Kagan, and Kavanaugh, JJ., joined. Soto-
mayor, J., fled a dissenting opinion, post, p. 753. Gorsuch, J., fled a
dissenting opinion, in which Breyer, J., joined, and in which Sotomayor,
J., joined as to all but Part II–C, post, p. 756.
Melanie L. Bostwick argued the cause for petitioner.
With her on the briefs were Thomas M. Bondy, Benjamin
P. Chagnon, Kenneth M. Carpenter, John D. Niles, Edmund
Hirschfeld, and Melanie R. Hallums.
Anthony A. Yang argued the cause for respondent. With
him on the briefs were Solicitor General Prelogar, Princi-
pal Deputy Assistant Attorney General Boynton, Deputy
Solicitor General Stewart, and Richard A. Sauber.*
Justice Barrett delivered the opinion of the Court.
Veterans may claim benefts for disabilities connected to
their military service subject to statutory and regulatory re-
quirements. When the Department of Veterans Affairs
(VA) denies a benefts claim, that decision generally becomes
fnal after the veteran exhausts the opportunity for direct
appeal. But a statutory exception permits the veteran to
seek collateral review at any time on grounds of “clear and
unmistakable error.” We must decide whether that excep-
tion allows relief from a VA decision applying an agency reg-
ulation that, although unchallenged at the time, is later
deemed contrary to law. We hold that it does not.
*Briefs of amici curiae urging reversal were fled for Disabled Ameri-
can Veterans by Robert V. Chisholm; for Military-Veterans Advocacy, Inc.,
et al. by Michael E. Joffre, William H. Milliken, and John B. Wells; for
the National Law School Veterans Clinic Consortium by Angela K. Drake;
for the National Veterans Legal Services Program et al. by Liam J. Mont-
gomery; for Swords to Plowshares et al. by Amy Rose and Tyrone Collier;
and for United States Senators Ted Cruz et al. by Jennifer L. Mascott
and R. Trent McCotter.
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743
Opinion of the Court
I
A
“
The law entitles veterans who have served on active duty
in the United States military to receive benefts for disabili-
ties caused or aggravated by their military service.” Shin-
seki v. Sanders, 556 U. S. 396, 400 (2009); see 38 U. S. C.
§ 1110. A veteran seeking such benefts must frst fle a
claim with the VA. § 5101(a)(1)(A). A regional offce of the
VA then determines whether the veteran satisfes all legal
prerequisites, including the requirement that military serv-
ice caused or aggravated the disability. § 511(a); see 38 CFR
§ 3.100(a) (2021). To that end, the statute governing war-
time service imposes a “[p]resumption of sound condition”:
If a veteran's disability was not noted at the time of entry
into service, then the veteran is presumptively entitled to
benefts unless the VA shows by a heightened burden of
proof that the disability “existed before . . . and was not
aggravated by such service. ” 38 U. S. C. § 1111. Af ter
applying this and other statutory and regulatory require-
ments, the regional offce issues an initial decision granting
or denying benefts. §§ 511(a), 5104(a).
A veteran dissatisfed with this decision may challenge it
through several layers of direct review. As a general rule,
the veteran may appeal within one year to the VA's Board
of Veterans' Appeals (Board). §§ 7105(b)(1), 7104(a). If the
Board also denies relief, the veteran may seek further review
outside the agency. Such review was once limited to consti-
tutional and certain statutory claims, but since 1988 Con-
gress has generally allowed veterans 120 days to appeal any
Board decision to the Court of Appeals for Veterans Claims
(Veterans Court). See Henderson v. Shinseki, 562 U. S. 428,
432, and n. 1 (2011); §§ 7252(a), 7261(a), 7266(a). A veteran
dissatisfed with that court's decision may seek review of any
legal issue in the Federal Circuit and ultimately in this
Court. § 7292; 28 U. S. C. § 1254(1).
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744 GEORGE
v. McDONOUGH
Opinion of the Court
After this direct appeal process, the benefts decision gen-
era
lly becomes “fnal and conclusive and may not be re-
viewed by any other offcial or by any court.” 38 U. S. C.
§ 511(a); see § 7104(a). Still, the veteran enjoys a few limited
options for seeking collateral review in exceptional circum-
stances. E. g., § 5108(a) (supplemental claim based on new
and relevant evidence); § 503(a) (discretionary relief based on
administrative error); § 5110(g) (increase of benefts based on
subsequent liberalizing legal change).
This case concerns one such exception to fnality: At any
time, a veteran may ask the Board or regional offce to revise
a fnal benefts decision on grounds of “clear and unmistak-
able error.” § 5109A (regional offce); § 7111 (the Board); 38
CFR §§ 3.105, 20.1400–20.1411 (2021). This form of collat-
eral review was frst adopted by regulation roughly 100
years ago. Since at least 1928, the VA and its predecessor
agencies have allowed revision of an otherwise fnal decision
when “obviously warranted by a clear and unmistakable
error.” Veterans' Bureau Reg. No. 187, pt. 1, § 7155 (1928);
see 38 CFR § 3.105(a) (Cum. Supp. 1963) (“Previous determi-
nations . . . will be accepted as correct in the absence of clear
and unmistakable error”). In 1997, Congress codifed this
form of review in the statute we interpret today. 111 Stat.
2271.
B
Kevin George joined the Marine Corps in 1975 after expe-
riencing multiple schizophrenic episodes. He did not ini-
tially disclose that history, and a medical examination noted
no mental disorders at the time he entered service. But less
than a week into training, George had another episode and
was hospitalized. A few months later, the Navy's Central
Physical Evaluation Board found that his schizophrenia made
him unft for duty and was not aggravated by service. App.
to Brief for Petitioner 12a–15a. George was then medi-
cally discharged.
Later that year, George applied for veterans' disability
benefts based on his schizophrenia. A VA regional offce
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745
Opinion of the Court
denied his claim after concluding that his condition predated
h
is military service and was not aggravated by it. The
Board agreed and denied George's appeal in 1977. In so rul-
ing, neither the regional offce nor the Board expressly dis-
cussed the VA's burden of proof under the presumption of
sound condition.
In 2014, George asked the Board to revise that fnal deci-
si on on grounds of “clear and unmistakable error. ” 38
U. S. C. § 7111. In particular, he claimed that the Board
erred by applying a later invalidated regulation to deny his
claim for benefts without holding the VA to its full burden of
proof to rebut the statutory presumption of sound condition.
For more than 40 years, including George's time in service,
a VA regulation provided that the agency could rebut the
presumption simply by showing, according to a heightened
burden of proof, that a disability predated service. See 26
Fed. Reg. 1580 (1961); 38 CFR § 3.304(b) (1976). In 2003,
however, the VA concluded that this regulation conficted
with the statute, which it now understood to require an addi-
tional showing (by the same burden of proof ): that the veter-
an's condition was not later aggravated by service. VA Op.
Gen. Counsel Precedent (VA Op.) 3–2003 (July 16, 2003).
The VA recognized that it seemed “illogical” to require an
additional showing with “no obvious bearing upon the pre-
sumed fact of whether the veteran was in sound condition
when he or she entered service.” Id., at 8. But it ex-
plained that the statutory text nonetheless “compel[led]”
this reading. Ibid. Based on this about-face, the VA con-
fessed error in a pending case applying the regulation, and
the Federal Circuit agreed that this “diffcult to parse” and
“somewhat self-contradictory” statute rendered the regula-
tion “incorrect.” Wagner v. Principi, 370 F. 3d 1089, 1093,
1097 (2004). The VA ultimately amended the regulation to
resolve the issue going forward. 70 Fed. Reg. 23027 (2005).
The Board denied George's claim for collateral relief, and
the Veterans Court affrmed. The Federal Circuit also af-
frmed, concluding that the application of a later invalidated
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746 GEORGE
v. McDONOUGH
Opinion of the Court
regulation does not fall into the narrow category of “clear
and
unmistakable error” permitting revision of a fnal deci-
sion under 38 U. S. C. §§ 5109A and 7111. 991 F. 3d 1227
(2021). We granted certiorari. 595 U. S. ––– (2022).
II
A
This case turns on the meaning of the 1997 statute subject-
ing a fnal veterans' benefts decision to collateral review on
grounds of “clear and unmistakable error.” 111 Stat. 2271
(38 U. S. C. §§ 5109A, 7111). Neither this statute nor any
other defnes this term—indeed, it appears nowhere else in
the entire United States Code. The modifers “clear” and
“unmistakable” indicate that this is a narrow category ex-
cluding some forms of error cognizable in other contexts.
The statutory structure similarly suggests a narrow cate-
gory because this form of review functions as a limited ex-
ception to fnality, in contrast to the broad provision of one
direct appeal for “[a]ll questions” in a case. § 7104(a). But
beyond those general contours, the statute itself does not
identify the specifc ways in which this category is narrower
than garden-variety “error.”
Fortunately, a robust regulatory backdrop flls in the de-
tails. Where Congress employs a term of art “ ` “obviously
transplanted from another legal source,” ' it ` “brings the old
soil with it.” ' ” Taggart v. Lorenzen, 587 U. S. –––, –––
(2019). That principle applies here. In 1997, Congress
used an unusual term that had a long regulatory history in
this very context. It enacted no new “defnition” or other
provision indicating any departure from the “same meaning ”
that the VA had long applied. Hall v. Hall, 584 U. S. 59,
73 (2018). We therefore agree with the Federal Circuit
that Congress “codif[ied] and adopt[ed] the [clear-and-unmis-
takable-error] doctrine as it had developed under” prior
agency practice. Cook v. Principi, 318 F. 3d 1334, 1344
(2002) (en banc). That longstanding VA practice reveals
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747
Opinion of the Court
several respects in which the clear-and-unmistakable cate-
gory
is a “very specifc and rare kind of error” narrower than
error simpliciter. 38 CFR § 20.1403(a).
Most important for present purposes, the history reveals
that this category of error does not encompass a subsequent
“change in law . . . or a change in interpretation of law.” 38
CFR § 3.105 (Cum. Supp. 1963). And for good reason: Dur-
ing the many years when clear and unmistakable error was
purely a creature of regulation, the governing statutes gen-
erally did not allow “[n]ew or recently developed facts or
changes in the law” to “provide a basis for revising a fnally
decided case.” Russell v. Principi, 3 Vet. App. 310, 313
(1992) (en banc) (citing 38 U. S. C. §§ 5108, 7104). To stay
within that statutory constraint, authorities dating back to
1928 confrm that “[a] determination that there was a `clear
and unmistakable error' must be based on the record and the
law that existed at the time of the prior [VA] decision.” 3
Vet. App., at 314 (emphasis added); see 38 CFR § 20.1403(b)
(similar); Veterans' Bureau Reg. No. 187, pt. 1, § 7155 (requir-
ing “clear and unmistakable error shown by the evidence in
fle at the time the prior decision was rendered”). So, for
example, the VA's failure to apply an existing regulation to
undisputed record evidence could constitute clear and unmis-
takable error. E. g., Myler v. Derwinski, 1 Vet. App. 571,
574–575 (1991). But a subsequent legal change could not,
because “only the `law that existed at the time' of the prior
adjudication . . . can be considered” in this posture. Damrel
v. Brown, 6 Vet. App. 242, 246 (1994). Or as the Veterans
Court summed up, shortly before the enactment of the 1997
statute: A “new interpretation of law . . . from a case decided
in 1993 could not possibly be the basis of [clear and unmistak-
able] error in 1969,” as “a simple recitation of the time se-
quence” should “make . . . clear.” Berger v. Brown, 10 Vet.
App. 166, 170 (1997).
The invalidation of a prior regulation constitutes a “change
in interpretation of law” under historical agency practice.

748 GEORGE
v. McDONOUGH
Opinion of the Court
Drawing on decades of history, the VA succinctly explained
near
ly 30 years ago that review for clear and unmistakable
error provides “no authority . . . for retroactive payment of
benefts when,” as in this case, a court later “invalidates a
VA interpretation or regulation” after a benefts decision be-
comes fnal. VA Op. 9–94, ¶6, p. 5 (Mar. 25, 1994). Under
this practice and the statute codifying it, the Board is instead
simply “performing its assigned task when it applies a regu-
lation as promulgated by the [VA],” because that regulation
legally binds agency adjudicators. VA Op. 25–95, ¶4, p. 2
(Dec. 6, 1995); see 38 U. S. C. § 7104(c) (“The Board shall be
bound in its decisions by the regulations of the Depart-
ment”). To be sure, when a previously applied regulation is
later invalidated, relief may be warranted for “error” in a
case still on direct appeal. E. g., Wagner, 370 F. 3d, at 1092,
1097. But on collateral review of a fnal decision, the more
limited category of “[c]lear and unmistakable error does not
include the otherwise correct application of a statute or reg-
ulation where, subsequent to the Board decision challenged,
there has been a change in the interpretation of the statute
or regulation.” 38 CFR § 20.1403(e).
1
The applicability of
this principle does not depend on the reason why the agency
changed course: A change based on the conclusion that a prior
interpretation was wrong is still a changed interpretation.
Defned by this regulatory history, the statutory term
“clear and unmistakable error” does not encompass a claim
like George's. When the Board decided George's appeal in
1977, it followed the then-applicable 1961 regulation, as it
was statutorily obligated to do. See 38 U. S. C. § 7104(c).
Decades later, the VA and the Federal Circuit rejected that
1
As should be clear from our explanation, the principal dissent is wrong
to attribute to the Court the view that an agency decision in these circum-
stances is “infected by no error of any kind.” Post, at 759 (opinion of
Gorsuch, J.). The issue in this case is the distinction between “errors”
cognizable on direct appeal and clear and unmistakable errors cognizable
on collateral review. Throughout his opinion, Justice Gorsuch elides
that distinction.
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749
Opinion of the Court
regulation based on a new interpretation of the “sound condi-
ti
on” provision. We express no view on the merits of that
change in interpretation, which are not before us. But be-
cause it is a change, it cannot support a claim of clear and
unmistakable error in the Board's routine 1977 application of
the prior regulation. Put differently, the correct application
of a binding regulation does not constitute “clear and unmis-
takable error” at the time a decision is rendered, even if that
regulation is subsequently invalidated.
B
1
George offers several responses. He generally concedes
the premise that the 1997 statute codifed the longstanding
regulatory practice defning “clear and unmistakable error.”
He takes issue primarily with the conclusion that this prac-
tice forbids his claim. In George's view, the VA has “dis-
torted” its own history by glossing over a handful of “pre-
legislation Veterans Court opinions” that he claims “point in
[his] direction.” Brief for Petitioner 26, 41. But across a
century of review for clear and unmistakable error, George
can muster only one case sustaining a claim that arguably
resembles his. See Look v. Derwinski, 2 Vet. App. 157
(1992) (approving collateral relief on two grounds, including
a later invalidated regulation, without discussing the change-
in-interpretation principle). And even that case is ambigu-
ous, as portions of the opinion may instead “suggest that
the [subsequent] invalidation of regulations does not have
retroactive effect in `fnally' disallowed claims.” VA Op. 9–
94, ¶5, p. 4 (emphasis added) (citing Look, 2 Vet. App., at
164). Regardless, the case remains an outlier that “no court
has cited” on this point “[i]n the 30 years since,” as the Gov-
ernment notes without rebuttal from George. Brief for Re-
spondent 38.
This is thin stuff. One uncertain outlier does not come
close to moving the mountain of contrary regulatory author-
ity. See supra, at 746–748. When we say that a statute
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750 GEORGE
v. McDONOUGH
Opinion of the Court
adopts a term of art, we mean that it captures “the state of
[
a] body of law,” not every errant decision of arguable rele-
vance. Federal Republic of Germany v. Philipp, 592 U. S.
169, 180 (2021). Even if George could pluck from the crowd
a few stray decisions pointing his way, that would not show
a “ `settled' meaning ” that we can infer “Congress had . . .
in mind when it enacted” this statute. Return Mail, Inc.
v. Postal Service, 587 U. S. –––, ––– (2019). Instead, the
mainstream of agency practice settles that a clear-and-
unmistakable-error claim cannot rest on a subsequent change
in interpretation.
George alternatively argues that the VA erred in applying
this principle to his situation. In his view, it is wrong to
descr ibe a later decisi on inva lidati ng a reg u lati on as a
“change in interpretation of law.” But we think that is a
perfectly natural way to characterize a decision announcing
a new reading of a statute—much as the VA and Federal
Circuit did in the decisions on which George now relies. VA
Op. 3–2003, ¶¶3, 8, pp. 2, 5 (adopting a new “interpretation”
to replace the prior “interpretation refected in VA's regula-
tions”); Wagner, 370 F. 3d, at 1092 (discussing that “change in
agency interpretation”). We have occasionally used similar
language ourselves. E. g., Gonzalez v. Crosby, 545 U. S. 524,
536–537 (2005) (referring to “[t]he change in the law worked
by” our precedent “interpret[ing] the AEDPA statute of lim-
itations”). As the Federal Circuit has explained, a lack of
“accuracy” in a prior statutory interpretation “does not ne-
gate the fact that” it is an “initial interpretation.” Jordan
v. Nicholson, 401 F. 3d 1296, 1298 (2005). In short, a misin-
terpretation is still an interpretation, and a correction of that
interpretation is a change. So the VA's application of the
change-in-interpretation label to claims like George's hardly
refects an “atypical” use of language, despite his arguments
to the contrary. Brief for Petitioner 18.
Ordinary language aside, George tries to bolster his posi-
tion with analogies to precedent from other contexts. He
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751
Opinion of the Court
invokes an array of cases explaining that a judicial decision
st
ates what the statute “always meant,” Rivers v. Roadway
Express, Inc., 511 U. S. 298, 313, n. 12 (1994), and an unau-
thorized regulation is a “ `nullity,' ” Dixon v. United States,
381 U. S. 68, 74 (1965). True enough. Those general princi-
ples, however, do not dispose of the issue before us. Assume
George is right that the “sound condition” provision always
required the VA to show that the veteran's condition was
not later aggravated by service and that the 1961 regulation
conficted with that requirement. We would still have to de-
cide whether the Board's application of that binding regula-
tion is the kind of “clear and unmistakable error” for which
collateral relief is available under 38 U. S. C. §§ 5109A and
7111. For the reasons we have explained, it is not.
And while George suggests otherwise, there is nothing in-
congruous about a system in which this kind of error—the
application of a since-rejected statutory interpretation—can-
not be remedied after fnal judgment. On the contrary, and
as the lower courts have explained, the VA's longstanding
approach is consistent with the general rule that “[t]he new
interpretation of a statute can only retroactively [a]ffect deci-
sions still open on direct review.” Disabled American Vet-
erans v. Gober, 234 F. 3d 682, 698 (CA Fed. 2000) (citing
Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97
(1993)); see also Smith v. West, 11 Vet. App. 134, 138 (1998)
(“ `New legal principles, even when applied retroactively, do
not apply to cases already closed' ” (quoting Reynoldsville
Casket Co. v. Hyde, 514 U. S. 749, 758 (1995); alteration omit-
ted)). That limitation serves important interests in fnality,
preventing narrow avenues for collateral review from bal-
looning into “substitute[s] for ordinary error correcti on
through appeal.” Harrington v. Richter, 562 U. S. 86, 102–
103 (2011); see also United Student Aid Funds, Inc. v. Es-
pinosa, 559 U. S. 260, 270 (2010) (an “exception to fnality”
should not be read to “swallow the rule”). So the VA's ap-
proach to collateral relief is not unusual. Here as elsewhere,
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752 GEORGE
v. McDONOUGH
Opinion of the Court
litigants must overcome a “stron[g]” “presumption of valid-
ity”
when “otherwise fnal decisions . . . are collaterally at-
tacked.” Fugo v. Brown, 6 Vet. App. 40, 44 (1993).
2
2
George also leans on what he describes as “the plain mean-
ing of th[e] words” clear and unmistakable error. Reply
Brief 2. As he puts it: “Looking at the 1977 Board's decision
today, the legal error is clear. It is unmistakable.” Id.,
at 1. (This is the thrust of Justice Gorsuch's position too.
See post, at 758–760 (dissenting opinion).) We share the
Government's doubt about how natural it is to say that the
Board “commit[ted] `clear and unmistakable error' by faith-
fully applying a VA regulation that was found to be invalid
more than 25 years later.” Brief for Respondent 33. More
fundamentally, though, this argument is inconsistent with
George's well-taken concessions elsewhere that “the [clear-
and-unmistakable-error] statutes track preexisting Veterans
Court case law” and other agency practice defning a “deeply
rooted” regulatory standard. Reply Brief 8; Brief for Peti-
tioner 6. The real question is not what might be called clear
and unmistakable error in the abstract, but what was the
“prevailing understanding ” of this term of art “under the law
that Congress looked to when codifying ” it. Reply Brief 2,
4; see West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S.
83, 92, n. 5 (1991) (terms of art “depart from ordinary mean-
ing ”). To the extent they diverge, the historical meaning
controls.
2
The principal dissent claims that this conclusion conficts with the gov-
erning statute's present-tense statement that a VA decision “ `is subject'
to later `revision' ” on collateral review. Post, at 760 (opinion of Gorsuch,
J.). But it would make little sense for Congress to pass a statute stating
that a decision “was” subject to revision. The statute's use of the present
tense refers to the time at which relief may be sought. It says nothing
about the scope of the category of clear and unmistakable errors meriting
relief, as fxed by the regulatory history. So we think there are good
reasons why neither George nor any of his amici makes this argument.
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753
Sotomayor, J., dissenting
More modestly, George seeks to distinguish the statutory
meani
ng from the prior practice on just one point. Because
Congress did not expressly enact the specifc regulatory
principle barring collateral relief for subsequent changes in
interpretation, he insists that the principle did not carry over
to the statute. But this argument, too, misses the mark.
The point of the old-soil principle is that “when Congress
employs a term of art,” that usage itself suffces to “ `adop[t]
the cluster of ideas that were attached to each borrowed
word' ” in the absence of indication to the contrary. FAA v.
Cooper, 566 U. S. 284, 292 (2012). Here, the governing stat-
ute “is silent” on a host of matters ranging from the defni-
tion of clear and unmistakable error to “the specifc proce-
dures that govern a [collateral] claim.” Disabled American
Veterans, 234 F. 3d, at 694, 696 (citing 38 U. S. C. § 7111).
And we take the statutory “silence” on the details of prior
regulatory practice to “l[eave] the matter where it was pre-
[codifcation].” Kucana v. Holder, 558 U. S. 233, 250 (2010).
We decline George's invitation to gerrymander out this one
feature of the prior practice.
***
The invalidation of a VA regulation after a veteran's bene-
fts decision becomes fnal cannot support a claim for collat-
eral relief based on clear and unmistakable error. We affrm
the judgment of the Court of Appeals.
It is so ordered.
Justice Sotomayor, dissenting.
I join all but Part II–C of Justice Gorsuch's dissent.
The Board of Veterans' Appeals (Board) clearly and unmis-
takably violated a statutory command in its decision denying
petitioner Kevin George's application for service-related ben-
efts. As Justice Gorsuch explains, in the context of this
specifc statutory framework, the mere fact that the Board
relied on a plainly invalid regulation does not shield its
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v. McDONOUGH
Sotomayor, J., dissenting
fnal decision from review based on clear and unmistakable
1
error
.
The Court thinks otherwise. In support of its holding,
the Court notes that Congress, when it enacted the clear-
and-unmistakable-error statutes in 1997, codified a pre-
existing regulatory doctrine under which clear and unmis-
takable error did not encompass a subsequent “change in
interpretation of law.” 38 CFR § 3.105 (Cum. Supp. 1963);
see ante, at 746–747. I agree that Congress incorporated
this pre-existing regulatory doctrine based on its use of
“clear and unmistakable error,” a longstanding term of art.
See ante, at 746, 753.
2
I diverge from Justice Gorsuch on
this point. The question remains, however: What consti-
tutes a “change in interpretation of law” excluded from clear
and unmistakable error? In George's view, a change in in-
terpretation of law occurs where “an agency . . . choos[es]
another permissible alternative construction” of a statute,
but not where, as here, a court invalidates a regulation that
had egregiously violated the governing statute all along.
Br ief for Petiti oner 18; see a lso post, at 759 –760 (Gor-
such, J., dissenting).
The Court disagrees. It holds that under the pre-existing
doctrine, judicial invalidation of an unmistakably erroneous
1
In my view, some invalid Department of Veterans Affairs (VA) regula-
tions might not be erroneous enough for reliance on them to constitute
clear and unmistakable error. After all, by defnition, not every error is
clear and unmistakable. The Board's 1977 decision in George's case, how-
ever, meets this demanding standard. The presumption-of-soundness
regulation the Board applied was clearly and unmistakably contrary to the
unambiguous terms of 38 U. S. C. § 1111, as even the VA eventually con-
ceded. See post, at 757–758 (Gorsuch, J., dissenting).
2
Were there any doubt, legislative history would render the conclusion
unavoidable. See H. R. Rep. No. 105–52, pp. 1–2 (1997) (“H. R. 1090 would
. . . codify existing regulations which make [VA] decisions . . . subject to
revision on the grounds of clear and unmistakable error”); S. Rep.
No. 105–57, p. 4 (1997) (“The Committee bill . . . would codify, in statute,
the allowance currently specifed by regulation” for review based on clear
and unmistakable error).
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755
Sotomayor, J., dissenting
regulation was understood to constitute a “change in inter-
pret
ation of law” for purposes of clear and unmistakable
error. See ante, at 746–750. The Court's citations offer lit-
tle support for this conclusion, however. In Berger v. Brown,
10 Vet. App. 166, 170 (1997), for example, the Court of Veter-
ans Appeals (Veterans Court) stated that opinions from that
body “that formulate new interpretations of the law . . . can-
not be the basis of a valid [clear-and-unmistakable-error]
claim.” But the Veterans Court emphasized that the deci-
sion under attack, unlike the Board's decision in George's
case, had followed “a plausible interpretation of the law,”
precluded by “nothing in the plain language of the statute,”
and added that “[t]he statute was, and still is for that matter,
susceptible of differing interpretations.” Ibid. Similarly,
in Damrel v. Brown, 6 Vet. App. 242, 246 (1994), the relevant
change i n i nter pret ati on of law was a Veterans Cour t-
created rule, not the invalidation of a regulation as clearly
contrary to the governing statute. And although it was well
established by 1997 that clear and unmistakable error “must
be based on . . . the law that existed at the time of the prior
. . . decision,” Russell v. Principi, 3 Vet. App. 310, 314 (1992)
(en banc), this is not inconsistent with George's request for
review based on the plain terms of a statute as it existed in
1977, when the Board ruled against him.
Other authorities relied upon by the Court are equivocal.
The VA opined in 1994 that invalidation of a regulation by
the Veterans Court constituted a “ `change in interpretation
of law,' ” but it also admitted “that VA's historical approach
has not been entirely consistent.” Op. Gen. Counsel Prece-
dent 9–94, ¶¶6, 8, pp. 4–5 (Mar. 25). Meanwhile, the Veter-
ans Court's 1992 decision in Look v. Derwinski, 2 Vet. App.
157, while not a model of clarity, undeniably “approv[ed of]
collateral relief ” based on “a later invalidated regulation,” as
the Court recognizes. Ante, at 749.
My takeaway from these conficting authorities is that the
pre-existing doctrine Congress incorporated in 1997 was un-
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v. McDONOUGH
Gorsuch, J., dissenting
settled as to whether judicial invalidation of a regulation that
squarely
contravened an unambiguous statute constituted a
“change in interpretation of law.” In other words, where
the Court perceives certainty, I see at most confusion. Con-
fronted with an ambiguity in the scheme Congress codifed
into statute, I would apply the venerable “ `canon that provi-
sions for benefts to members of the Armed Services are to
be construed in the benefciaries' favor.' ” Henderson v.
Shinseki, 562 U. S. 428, 441 (2011) (quoting King v. St. Vin-
cent's Hospital, 502 U. S. 215, 220–221, n. 9 (1991)). Accord-
ingly, I would hold that George may seek review based on
clear and unmistakable error.
For these reasons, as well as others set forth by Justice
Gorsuch, I respectfully dissent.
Justice Gorsuch, with whom Justice Breyer joins, and
with whom Justice Sotomayor joins as to all but Part II–
C, dissenting.
A young recruit to the United States Marines left the
ranks after military doctors found his service aggravated
a preexisting mental illness. Eventually, he applied for
service-related benefts. The Veterans Administration re-
fused his application. It turns out the agency did so based
on a badly mistaken reading of the law. On discovering the
error years later, the Marine petitioned the agency to revisit
its decision. Congress has expressly allowed veterans to do
exactly that, providing that they may “at any time” petition
the agency to cure “clear and unmistakable error[s]” in its
past administrative decisions. 38 U. S. C. §§ 5109A, 7111.
Despite this statutory command, the agency refused to re-
open the case. Today, the Court upholds the agency's deci-
sion. Respectfully, I would not.
I
When Kevin George enlisted in the Marines in 1975, doc-
tors conducted an entrance exam and found him ft to serve.
But shortly after training began, he was hospitalized and
diagnosed with an “Acute Schizophrenic Reaction” that oc-
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757
Gorsuch, J., dissenting
curred “ [i]n l i ne of duty. ” Record in No. 16 – 2174 (Ct.
V
et. App.), p. 1275. Later, after a period of resumed train-
ing, Mr. George again required medical attention and a mili-
tary psychiatrist diagnosed him with “Paranoid Schizophre-
nia” that was “Aggravated by Service.” App. to Brief for
Petitioner 3a. A military medical board agreed, concluding
that Mr. George's condition predated his service but was “ag-
grav[a]ted by a period of active duty.” Id., at 8a. Ulti-
mately, at the medical board's recommendation, Mr. George
was discharged.
When Mr. George fled a claim for veteran benefts a few
months later, he had cause for optimism. Congress has pro-
vided that veterans are entitled to “compensation” for any
“disability resulting from [the] aggravation of a preexisting
injury suffered or disease contracted in [the] line of duty.”
38 U. S. C. § 1110. Congress has bolstered that right with a
presumption that individuals are in “sound condition” when
they enter service and are entitled to benefts later unless
the government demonstrates by “clear and unmistakable
evidence . . . that [their] injury or disease existed before ac-
ceptance and enrollment and was not aggravated by such
service.” § 1111 (emphasis added). Relying on those provi-
sions, Mr. George claimed that his military service aggra-
vated his schizophrenia, meaning the government had the
burden to disprove his claim.
The Veterans Administration, the precursor to today's De-
partment of Veterans Affairs (together, the Department or
VA), denied Mr. George's application. In the process, the
agency neglected to apply § 1111's statutory presumption of
soundness that attached to his entry into military service.
It also failed to follow § 1111's command requiring the agency
to prove that Mr. George's condition “was not aggravated by
such service.” Instead, the VA relied on a very different set
of rules of its own creation. Under them, the agency said,
all it had to show was that Mr. George suffered “an injury or
disease [that] existed prior [to service].” 38 CFR § 3.304(b)
(1976). And after determining that Mr. George indeed suf-
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758 GEORGE
v. McDONOUGH
Gorsuch, J., dissenting
fered from schizophrenia before he joined the military, the
a
gency denied h is clai m. To make matters worse, the
agency even faulted Mr. George for failing to carry his sup-
posed burden of “support[ing] a claim for aggravation.”
App. to Pet. for Cert. 86a.
Eventually, virtually everyone came to agree that the ad-
ministrative regulations on which the VA relied in deciding
Mr. George's case defed the statutory terms Congress pre-
scribed in § 1111. In 2003, the agency's General Counsel ad-
mitted as much. See VA Op. Gen. Counsel Precedent 3–
2003, ¶¶ 3, 9. The following year, the Federal Circuit held
that the statute “clear[ly]” forbade the VA's rules. Wagner
v. Principi, 370 F. 3d 1089, 1094 (2004).
After the Federal Circuit's decision in Wagner, Mr. George
asked the agency to reconsider his case under the correct
standard set forth in § 1111. Understandably so. Congress
has directed the VA to revise any prior administrative bene-
fts decision infected with “clear and unmistakable error.”
38 U. S. C. §§ 5109A (regional offce), 7111 (veterans board).
Congress has further instructed that veterans may petition
for review under this standard “at any time.” §§ 5109A(d),
7111(d). Yet, despite these directions, the agency in 2016
refused to reopen Mr. George's case. To justify its decision,
the agency reasoned that “judicial decisions that formulate
new interpretations of the law subsequent to a VA decision
cannot be the basis of a” claim for clear and unmistakable
error under the terms of §§ 5109A and 7111. App. to Pet.
for Cert. 71a. A divided panel of the Veterans Court, a non-
Article III tribunal, affrmed. See George v. Wilkie, 30 Vet.
App. 364 (2019). So did the Federal Circuit. 991 F. 3d
1227 (2021).
II
A
I would reverse. In § 1111, Congress provided veterans
with a presumption of soundness and required the govern-
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759
Gorsuch, J., dissenting
ment to prove by clear and convincing evidence that any con-
diti
on a veteran suffered was not aggravated by service.
Today, however, everyone accepts that the regulations the
agency relied on to reject Mr. George's initial claim imper-
missibly failed to implement these statutory commands. On
any reasonable account, that amounts to a clear and unmis-
takable agency error entitling Mr. George to a new hearing.
Regardless whether he can prevail under the test Congress
actually prescribed in § 1111, he is at least entitled to a hear-
ing consistent with the law's terms. The agency's failure
to provide him that simple (and legally compelled) courtesy
is inexcusable.
Of course, just how badly the agency's regulations de-
parted from Congress's commands in § 1111 may not have
been widely appreciated until the Federal Circuit high-
lighted the problem in Wagner. But a “judicial construction
of a statute is an authoritative statement of what the statute
meant before as well as after the decision.” Rivers v. Road-
way Express, Inc., 511 U. S. 298, 311–313 (1994). And an
agency's “ `regulation which . . . operates to create a rule out
of harmony with the statute, is a mere nullity.' ” Dixon v.
United States, 381 U. S. 68, 74 (1965). From these premises,
it follows that the agency's ruling in this case, depending as
it did on a statutorily impermissible regulation, was infected
by “clear and unmistakable error” that Mr. George is entitled
to have corrected “at any time.” §§ 5109A, 7111.
B
What is the Court's reply? It highlights the fact that the
agency's regulations bound its own internal administrative
decisionmakers when they ruled on Mr. George's initialclaim.
Given that, the Court says, the agency's ruling was perfectly
sound at the time, infected by no error of any kind, let alone
clear and unmistakable error. Of course, the Federal Circuit
in Wagner later held that the agency's regulations “clear[ly]”
defed its statutory charge from Congress. 370 F. 3d, at
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v. McDONOUGH
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1094. But, on the Court's view today, that decision repre-
sented
a change in governing law. See ante, at 748, 750.
A clear and unmistakable agency error cannot be made to
vanish so easily. Even if an agency's unlawful regulations
may bind its own employees until a court says otherwise,
that does not mean its decisions applying those regulations
to others are error-free. The regulations on which the VA
relied in this case always defed Congress's express command
in § 1111. In that sense, they were always a “ `nullity.' ”
Dixon, 381 U. S., at 74. Nor does it make a difference that
Wagner recognized as much only some time later. Once
more, when a court interprets a statute and declares con-
trary regulations invalid, it cannot and does not change the
law; it can only explain what the law has “always meant.”
Rivers, 511 U. S., at 313, n. 12. The Court today errs
badly by excusing an obvious error simply because it was
once enshr i ned by the agency i n a st atutor i ly defiant
regulation.
What is more, the Court's reading is at odds with the plain
terms of §§ 5109A and 7111. Under those statutes, an initial
administrative ruling denying benefts “is subject” to later
“revision . . . [i]f evidence establishes the [clear and unmis-
takable] error.” §§ 5109A(a), 7111(a) (emphasis added).
Notice the tense. The law does not ask if the agency's error
was “clear and unmistakable” at the time of its original deci-
sion. Instead, it commands the agency to correct any clear
and unmistakable error presently established. The same
statutes fur ther instr uct that a petiti on “ to deter mi ne
whether clear and unmistakable error exists in a case may
be instituted” in various ways. §§ 5109A(c), 7111(c) (em-
phasis added). More present tense. Congress easily could
have said that a decision is reviewable only where an error
was “clear and unmistakable” from the outset. It did not.
Instead, Congress instructed the agency to assess
whether—from its present vantage—one of its prior admin-
istrative rulings suffers from a “clear and unmistakable
error.”
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Gorsuch, J., dissenting
C
P
erhaps sensing these problems with its primary theory,
the Court offers a second and slightly different one. Now it
insists that the phrase “clear and unmistakable error” is a
term of art that originated in (still other) agency regulations.
Ante, at 746. Under those regulations, the Court observes,
an error did not qualify as “clear and unmistakable” if it was
based on a “change in law or . . . a change in interpretation
of law.” 38 CFR § 3.105 (Cum. Supp. 1963); see ante, at 747.
On the Court's telling, Congress meant to incorporate this
same standard when it adopted §§ 5109A and 7111. And, the
Court continues, that standard precludes relief in this case
because the error here is apparent only thanks to the Federal
Circuit's intervening Wagner decision, which represented a
“change in interpretation of law.” See ante, at 747–749.
This argument is no more persuasive than the last. When
Congress “transform[s] . . . a regulatory procedure [in]to a
statutory form of relief,” we enforce only those components
Congress actually “codif[ied]” in the statutory text. Ku-
cana v. Holder, 558 U. S. 233, 249–250 (2010) (internal quota-
tion marks omitted). And here Congress did not codify the
part of the old agency regulation on which the Court relies.
Nothing in the text of § 5109A or § 7111 says that errors re-
sulting from “changes in law” or “changes in interpretation”
are immune from correction. To the contrary, Congress
omitted this language from the agency's prior regulations
when it adopted §§ 5109A and 7111. Under the law Con-
gress actually wrote, prior agency decisions are “subject to
revision on the grounds of clear and unmistakable error.”
Full stop. This Court should not be in the business of add-
ing words to the law, let alone to insulate badly mistaken
agency decisions from any chance of correction.
III
In the end, it is hard to avoid the impression that the
Court thinks an old agency ruling in Mr. George's case just
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Gorsuch, J., dissenting
isn't worth revisiting. See ante, at 750–751. Maybe, too,
that
might seem an understandable impulse on frst encoun-
ter. After all, in civil and criminal litigation new judicial
interpretations about a law's meaning normally do not apply
to old cases after they have reached fnal judgment. See,
e. g., Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 94–
97 (1993).
But it turns out that impulse is doubly misguided here.
For one thing, it is a mistake to equate veteran benefts cases
with ordinary civil and criminal litigation. Recognizing the
sacrifces of those who have left private life to serve their
country, Congress has ordained that a veteran may petition
for review of clear and unmistakable errors in past adminis-
trative decisions “at any time.” §§ 5109A(d), 7111(d). Con-
gress's “whole purpose” in setting up this scheme was “to
make an exception to [the usual rule of] fnality” for our vet-
erans in recognition of their service to the Nation. Gonza-
lez v. Crosby, 545 U. S. 524, 529 (2005).
For another thing, this case doesn't just affect Mr. George.
It risks insulating countless other decisions in which the De-
partment has wrongly denied veteran benefts based on self-
serving regulations inconsistent with Congress's instruc-
tions. See, e. g., Brief for National Veterans Legal Services
Program et al. as Amici Curiae 15–27; Brief for Swords to
Plowshares et al. as Amici Curiae 19–20. Veterans already
face challenges enough in dealing with the Department. On
average, the agency takes seven years to process their ad-
ministrative appeals. See Brief for National Law School
Veterans Clinic Consortium as Amicus Curiae 18. Over the
past fve years, it seems that the Veterans Court has af-
frmed less than 10 percent of the agency's decisions. See
ibid. Internal audits have revealed massive numbers of im-
properly denied claims. See id., at 19. I would not add to
these problems by shielding the Department from the incon-
venience of having to answer for its own clear and unmistak-
able errors. Respectfully, I dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 747, line 15: “a” is inserted after “was”
p. 758, line 24: “offer” is replaced with “formulate”