Daryl R. Blanton v. Denis R. McDonough, Secretary of Veterans Affairs

The Department of Veterans Affairs (“VA”) long has strained to keep pace with the claims of our country’s former military service members and their dependents and survivors (collectively, “veterans”). VA makes mistakes. Congress understands this, and it protects veterans from VA error. One beneficial, remedial protection that Congress affords to veterans is against VA “clear and unmistakable” error (“CUE”). Through 38 U.S.C. § 5109A, Congress requires VA to reverse or revise a prior decision whenever evidence establishes CUE. The U.S. Court of Appeals for the Federal Circuit has adopted a severely restrictive interpretation of section 5109A. The standard forecloses relief from CUE unless a veteran establishes, based on the challenged decision’s extant agency record and law, that the error “compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error.” Cook v. Principi, 318 F.3d 1334, 1345 (2002) (en banc). The petitioner contends that Cook’s standard is erroneous. In the proceedings below, the Federal Circuit made plain that it will not be revisiting Cook. With the Federal Circuit refusing to revisit Cook, and its strict standard harming our country’s veterans, the petitioner asks this Court to intervene. The question presented: Is the Cook standard to establish CUE in a VA decision erroneously restrictive?