Petition for Writ of Certiorari — Clinton Siples, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs

No.

IN THE

Supreme Court of the United States

________________

CLINTON SIPLES,

v.

Petitioner,

DOUGLAS A. COLLINS, SECRETARY OF VETERANS

AFFAIRS,

Respondent.

________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

________________

PETITION FOR A WRIT OF CERTIORARI

________________

Kenneth H. Dojaquez

CARPENTER CHARTERED

P.O. Box 2099

Topeka, KS 66601

Geoffrey C. Shaw

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Ave.

Suite 2700

Los Angeles, CA 90071

Melanie L. Bostwick

Counsel of Record

Alexandra Bursak

Kamilyn Y. Choi

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania Ave.

NW

Washington, DC 20037

(202) 339-8400

mbostwick@orrick.com

Counsel for Petitioner

i

QUESTION PRESENTED

In the uniquely pro-claimant veterans-benefits

system, Congress has provided that an otherwisefinal agency decision is subject to revision if that decision was based on “clear and unmistakable error,”

or “CUE.” Regulations and longstanding agency

practice dictate that CUE 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.” 38

C.F.R. §§ 3.105(a)(1)(i), 20.1403(a), (c). And, as this

Court confirmed in George v. McDonough, 596 U.S.

740 (2022), the error must be based on the law that

applied at the time of the original decision, not a later change in law or interpretation.

In the decision below, the Federal Circuit misread George to require more. It held that a CUE

claimant must show not only that a legal error had a

clear effect on the outcome of a benefits decision, but

also that the law itself was undebatably clear at the

time of the prior decision.

The question presented is: To establish “clear

and unmistakable error” based on legal error, must a

veteran show that there was an error of law at the

time of the challenged decision which undebatably

altered the outcome of the benefits decision, as the

regulatory text provides, or must a veteran also

show that the meaning of the law itself was undebatable, as the Federal Circuit held?

ii

RELATED PROCEEDINGS

Clinton Siples v. Douglas A. Collins, Secretary of

Veterans Affairs, No. 22-1528 (Fed. Cir. judgment

entered Feb. 7, 2025).

Clinton Siples v. Denis McDonough, Secretary of

Veterans Affairs, No. 19-7957 (Vet. App. judgment

entered Jan. 7, 2022).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

RELATED PROCEEDINGS ..................................... ii

TABLE OF AUTHORITIES .................................... vi

INTRODUCTION ..................................................... 1

OPINIONS AND ORDERS BELOW ........................ 3

JURISDICTION ........................................................ 4

STATUTORY PROVISIONS INVOLVED ............... 4

STATEMENT OF THE CASE .................................. 5

Congress Creates A Uniquely ProClaimant System For VeteransBenefits Adjudication.................................... 5

Erroneous Benefits Decisions May Be

Revised On Grounds Of Clear And

Unmistakable Error ...................................... 7

Mr. Siples Seeks CUE Revision Of His

Original Benefits Decision ............................ 9

The Federal Circuit Affirms, In Conflict

With Recent Precedent ............................... 13

REASONS FOR GRANTING THE WRIT.............. 16

I.

The Decision Below Is Incorrect. ..................... 16

A. CUE calls for a two-step analysis. .............. 16

B. The Federal Circuit conflated the two

steps and misconstrued the CUE

standard. ..................................................... 21

iv

II. The Federal Circuit’s Decision Is Contrary

To Loper Bright. ............................................... 26

III. The Question Presented Is Important And

Recurring. ......................................................... 29

A. The Federal Circuit created and failed

to correct an intra-circuit conflict. .............. 30

B. The issues are critical to veterans and

certain to recur frequently. ......................... 32

IV. This Case Is A Clean Vehicle. .......................... 34

CONCLUSION ........................................................ 36

APPENDIX A

Opinion of the Federal

Circuit (Feb. 7, 2025) .............. 1a

APPENDIX B

Decision of the Court of

Appeals for Veterans Claims

(Dec. 15, 2021) ....................... 19a

APPENDIX C

Decision of Board of Veterans’

Appeals (July 23, 2019)......... 29a

APPENDIX D

Rating Decision of

Department of Veterans

Affairs (July 23, 2004) .......... 57a

APPENDIX E

Order of the Federal Circuit

Denying Rehearing

(Aug. 21, 2025) ...................... 67a

APPENDIX F

38 U.S.C. § 5109A ................. 69a

APPENDIX G

38 U.S.C. § 7111 .................... 70a

APPENDIX H

38 C.F.R. § 3.105 ................... 72a

v

APPENDIX I

38 C.F.R. § 20.1403 ............... 83a

APPENDIX J

38 C.F.R. § 4.59 ..................... 86a

vi

TABLE OF AUTHORITIES

Page(s)

Cases

Berger v. Brown,

10 Vet. App. 166 (1997) .................................19, 25

Burton v. Shinseki,

25 Vet. App. 1 (2011) ............................... 11, 12, 35

Calderon v. Thompson,

523 U.S. 538 (1998)..............................................29

Comer v. Peake,

552 F.3d 1362 (Fed. Cir. 2009) ............................33

Cook v. Principi,

318 F.3d 1334 (Fed. Cir. 2002) ......................19, 25

Fugo v. Brown,

6 Vet. App. 40 (1993) ............................... 19, 20, 25

George v. McDonough,

596 U.S. 740 (2022)....... 1, 6, 7, 8, 9, 14, 17, 18, 19,

21, 24, 26, 31

Harris v. Shinseki,

704 F.3d 946 (Fed. Cir. 2013) ................................6

Henderson v. Shinseki,

562 U.S. 428 (2011)..........................................6, 29

Look v. Derwinski,

2 Vet. App. 157 (1992) ...................................20, 24

vii

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024)............................ 1, 2, 3, 27, 28

Mansell v. Mansell,

490 U.S. 581 (1989)..............................................34

Nat’l Org. of Veterans’ Advocs., Inc. v.

Sec’y of Veterans Affs.,

981 F.3d 1360 (Fed. Cir. 2020) ............................32

Russell v. Principi,

3 Vet. App. 310 (1992) ............................. 20, 24, 25

Shinseki v. Sanders,

556 U.S. 396 (2009)................................................5

Smith v. Brown,

35 F.3d 1516 (Fed. Cir. 1994) ................................8

Spencer v. Brown,

17 F.3d 368 (Fed. Cir. 1994) ................................33

United States v. Oregon,

366 U.S. 643 (1961)................................................6

Walters v. Nat’l Ass’n of Radiation

Survivors,

473 U.S. 305 (1985)................................................7

Webb v. McDonough,

71 F.4th 1377 (Fed. Cir. 2023) ............................10

Statutes

28 U.S.C. § 1254(1)..................................................4, 6

viii

28 U.S.C. § 2254(d)....................................................28

38 U.S.C. § 1110 ..........................................................5

38 U.S.C. § 1151 ..................................................20, 24

38 U.S.C. § 1155 ........................................................10

38 U.S.C. § 5108(a)......................................................7

38 U.S.C. § 5109A ............................... 1, 4, 7, 8, 10, 16

38 U.S.C. § 5109A(b) ...................................................7

38 U.S.C. § 5110(a)(1), (3) ...........................................7

38 U.S.C. § 5904(c)(1) ................................................33

38 U.S.C. § 7104(a)......................................................6

38 U.S.C. § 7105(b)(1) .................................................6

38 U.S.C. § 7111 ........................................ 1, 4, 7, 8, 16

38 U.S.C. § 7111(b)......................................................7

38 U.S.C. § 7252(a)......................................................6

38 U.S.C. § 7261 ..........................................................6

38 U.S.C. § 7266(a)......................................................6

38 U.S.C. § 7292(d)(1) .................................................6

Regulations

38 C.F.R. pt. 4 ...........................................................10

ix

38 C.F.R. § 3.105 .........................................................8

38 C.F.R. § 3.105(a)(1)(i) ............. 2, 4, 8, 17, 18, 23, 24

38 C.F.R. § 3.105(a)(1)(iii) .........................................17

38 C.F.R. § 3.400(k) .....................................................7

38 C.F.R. § 4.20 .........................................................10

38 C.F.R. § 4.40 .........................................................23

38 C.F.R. § 4.45 .........................................................23

38 C.F.R. § 4.59 ............. 5, 10-13, 15, 22-23, 33, 35-36

38 C.F.R. § 4.71a .......................................................10

38 C.F.R. § 20.1403(a), (c) ............... 2, 8, 17, 18, 23, 24

Veterans’ Bureau Reg. 187 § 7155

(1928) ......................................................................8

Other Authorities

Dep’t of Veteran Affs., Current

Veterans Disability Compensation

Rates (Dec. 1, 2024),

https://perma.cc/T77H-V3XL ...............................10

H.R. Rep. No. 105-52 (1997) .................................7, 20

Veterans Benefits Admin., Department

of Veterans Affairs Adjudication

Procedures Manual M21-1 (updated

May 2025), https://perma.cc/39ZYP42T ......................................................... 11, 19, 36

INTRODUCTION

This case presents an important question of veterans law that requires resolution following the

Court’s decision in George v. McDonough, 596 U.S.

740 (2022); that the Federal Circuit, which has exclusive jurisdiction over the issue, decided incorrectly and in a manner that contravenes Loper Bright

Enterprises v. Raimondo, 603 U.S. 369 (2024); and

that will, without this Court’s intervention, deprive

untold numbers of veterans of the benefits that they

earned through service.

In the strongly pro-claimant veterans-benefits

system, otherwise final decisions by the Department

of Veterans Affairs (VA) remain subject to revision

on grounds of “clear and unmistakable error,” or

“CUE.” 38 U.S.C. §§ 5109A, 7111. CUE might occur,

for example, if critical facts were not before the

agency, or if the agency misapplied the law. If a veteran demonstrates CUE, the original decision is corrected, and the veteran receives the benefits he

should have gotten all along.

Four terms ago, in George, this Court held that

CUE is a narrow form of error based solely on “the

law that existed at the time of the prior” adjudication. 596 U.S. at 747 (internal quotation marks omitted). So a veteran claiming CUE because of a legal

error in an earlier benefits decision must demonstrate that that decision was wrong based on the law

as it was then, and cannot invoke subsequent changes. Id.

2

The inquiry thus requires an assessment of what

the law was at the time of the challenged adjudication. In the opinion below, the Federal Circuit went

far beyond George and held that CUE requires the

veteran to establish that the meaning of the law at

the time of the prior adjudication not only favored

him, but was “undebatably” clear. Pet. App. 16a

(emphasis added). According to the Federal Circuit,

if there is any room for disagreement as to what the

meaning of a statute or regulation governing the

original benefits decision was, CUE revision is not

available.

That is not the standard. The text of the CUE

regulation and traditional agency practice establish

that this remedy is available when there was (1) an

error in the prior adjudication that (2) undebatably

altered the outcome of that adjudication. See 38

C.F.R. §§ 3.105(a)(1)(i), 20.1403(a), (c). In other

words, what must be “undebatable” is not the meaning of the governing law, but that the error in applying that law resulted in a less favorable benefits

determination. The Federal Circuit’s decision conflated the two parts of the analysis and erroneously

heightened the standard for showing what law governed the original decision.

The Federal Circuit’s holding is also contrary to

Loper Bright. The essential teaching of Loper Bright

is that the task of ascertaining what the law is—or

what the law was—does not end simply because the

law appears ambiguous or disagreement exists about

its meaning. See 603 U.S. at 392. Laws, “no matter

how impenetrable, do—in fact, must—have a single,

best meaning,” which adjudicators must pursue

3

through “independent judgment.” Id. at 398, 400.

Veterans deserve the benefit of “the unremarkable,

yet elemental proposition reflected by judicial practice dating back to Marbury: that courts decide legal

questions by applying their own judgment”—“even

those [questions] involving ambiguous laws.” Id. at

391-92. CUE adjudicators are not authorized to

abandon their inquiry into what the law was and

deny relief merely because there is room for debate.

The Federal Circuit’s decision threatens to raise

the bar for CUE so high that it is effectively unattainable. Whether legal meaning can fairly be debated is “in the eye of the beholder”; room for

disagreement can almost always be found if one goes

looking. Id. at 408 (quotation marks omitted). Barring CUE unless a veteran can establish that the law

was well and truly undebatable would inevitably result in denying countless veterans the benefits they

rightfully earned—the opposite of what Congress intended by creating a special path for veterans to correct erroneous benefits determinations. The decision

also threatens to sow systematic confusion in the

veterans-benefits system because it opens a conflict

with a recent decision of another Federal Circuit

panel, which the Federal Circuit declined to resolve

en banc. This Court’s review is thus urgently needed.

The Court should grant certiorari and reverse.

OPINIONS AND ORDERS BELOW

The decision of the United States Court of Appeals for the Federal Circuit is published at 127

F.4th 1325 and reproduced at Pet. App. 1a-18a. The

4

decision of the Court of Appeals for Veterans Claims

is unreported and reproduced at Pet. App. 19a-28a.

The decision of the Board of Veterans’ Appeals is unreported and reproduced at Pet. App. 29a-56a. The

2004 decision of the Roanoke Regional Office is unreported and reproduced at Pet. App. 57a-66a.

JURISDICTION

The Federal Circuit entered judgment on February 7, 2025. Pet. App. 1a. A timely petition for rehearing was denied on August 21, 2025. Pet. App.

67a-68a. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

38 U.S.C. § 5109A provides in pertinent part:

A decision by the Secretary under this chapter is subject to revision on the grounds of

clear and unmistakable error. If evidence establishes the error, the prior decision shall

be reversed or revised.

38 U.S.C. § 7111 provides in pertinent part:

A decision by the Board is subject to revision

on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

38 C.F.R. § 3.105(a)(1)(i) provides in pertinent

part:

5

A 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. 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. § 4.59 provides in pertinent part:

The intent of the schedule is to recognize

painful motion with joint or periarticular pathology as productive of disability. It is the

intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum

compensable rating for the joint.

These statutes and regulations are reproduced in

full at Pet. App. 69a-86a.

STATEMENT OF THE CASE

Congress Creates A Uniquely Pro-Claimant System For Veterans-Benefits Adjudication

“The law entitles veterans who have served on

active duty in the United States military to receive

benefits for disabilities caused or aggravated by their

military service.” Shinseki v. Sanders, 556 U.S. 396,

400 (2009); see 38 U.S.C. § 1110. Congress designed

the system of veterans-benefits adjudication against

6

this “uniquely pro-claimant” backdrop. Harris v.

Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013); see

United States v. Oregon, 366 U.S. 643, 647 (1961)

(“The solicitude of Congress for veterans is of long

standing.”). The system is “‘unusually protective’ of

claimants,” and the agency claims process is “nonadversarial.” Henderson v. Shinseki, 562 U.S. 428, 431,

437 (2011). Indeed, as this Court has observed, “[t]he

contrast between ordinary civil litigation … and the

system that Congress created for the adjudication of

veterans benefits claims could hardly be more dramatic.” Id. at 440.

A veteran seeking disability benefits “must first

file a claim with the VA,” after which a “regional office of the VA then determines whether the veteran

satisfies all legal prerequisites” for benefits. George,

596 U.S. at 743. Veterans can appeal the regional office’s decision to the Board of Veterans’ Appeals, an

agency tribunal whose members function like administrative law judges. 38 U.S.C. §§ 7104(a), 7105(b)(1).

If the Board denies relief, veterans may then appeal

to the Court of Appeals for Veterans Claims (Veterans Court). 38 U.S.C. §§ 7252(a), 7266(a). Congress

established the Veterans Court in 1988 as part of the

Veterans’ Judicial Review Act, which also established judicial review over veterans-benefits claims

for the first time. The Veterans Court applies an

APA-like standard of review to Board decisions. 38

U.S.C. § 7261. Either party may appeal an adverse

Veterans Court decision to the Federal Circuit,

which has a more limited scope of review but “shall

decide all relevant questions of law,” 38 U.S.C.

§ 7292(d)(1), and ultimately may seek relief in this

Court, 28 U.S.C. § 1254(1).

7

Erroneous Benefits Decisions May Be Revised

On Grounds Of Clear And Unmistakable Error

Congress has also codified multiple avenues for

collateral review, reflecting its uniquely proclaimant approach to finality in the veterans’ context. In veterans’ cases, a “denial of benefits has no

formal res judicata effect.” Walters v. Nat’l Ass’n of

Radiation Survivors, 473 U.S. 305, 311 (1985); see

also H.R. Rep. No. 105-52, at 2 (1997) (“There is no

true finality of a decision” in “[t]he VA claim system.”). So, separate from the direct-review process

described above, a veteran at any time may seek revision or readjudication of a final benefits decision

on two different grounds.

First, a veteran can file a supplemental claim

based on “new and relevant evidence.” See 38 U.S.C.

§ 5108(a). In general, a veteran who prevails on a

supplemental claim is entitled to benefits dating

back to the date they filed the supplemental claim,

not the date of the original benefits decision. See 38

U.S.C. § 5110(a)(1), (3).

Second, a veteran can “ask the Board or regional

office to revise a final benefits decision on grounds of

‘clear and unmistakable error.’” George, 596 U.S. at

744; see 38 U.S.C. §§ 5109A (CUE by regional office),

7111 (same standard for CUE by Board). A veteran

can make this request “at any time” after the original benefits decision becomes final. 38 U.S.C.

§§ 5109A, 7111. If the veteran establishes CUE, she

is owed benefits from the time of the original, erroneous decision. 38 U.S.C. §§ 5109A(b), 7111(b); 38

C.F.R. § 3.400(k).

8

CUE review has deep roots in the veteransbenefits system, dating back at least to a 1928 regulation providing that “the rating board may reverse

or amend a decision … where such reversal or

amendment is obviously warranted by a clear and

unmistakable error.” Veterans’ Bureau Reg. 187

§ 7155 (1928). After undergoing revisions over some

decades, in 1959, the regulation was imported into

38 C.F.R. § 3.105, which has been the main regulation governing CUE review ever since. See Smith v.

Brown, 35 F.3d 1516, 1525 (Fed. Cir. 1994).

Section 3.105 defines CUE as

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. 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. §§ 3.105(a)(1)(i) (CUE by regional office),

20.1403(a), (c) (CUE by Board, setting out substantively identical standard). Congress codified this

longstanding agency practice into statute in 1997.

See 38 U.S.C. §§ 5109A, 7111.

This Court recently addressed the CUE standard

in George. VA had denied a veteran’s claim for disability benefits “after concluding that his condition

predated his military service and was not aggravated by it.” 596 U.S. at 744-45. The statute at the time

9

required VA to prove non-aggravation, but VA’s regulation did not impose that burden on the agency;

VA adjudicators therefore did not require such proof

in Mr. George’s case. Decades later, the regulation

was invalidated, and Mr. George requested CUE relief. This Court held that CUE does not encompass a

subsequent “change in law … or a change in interpretation of law,” such as a later-invalidated regulation. Id. at 747. CUE relief is available only if a

veteran demonstrates that his benefits decision was

erroneous “based on the record and law that existed

at the time of the prior VA decision.” Id. (quotation

and alteration marks omitted).

Mr. Siples Seeks CUE Revision Of His Original

Benefits Decision

Clinton Siples joined the Air Force in 1978 and

served honorably for 25 years. CAFC App. 29. While

serving in the Air Force, Mr. Siples began to receive

treatment for bilateral shoulder dislocations. CAFC

App. 16. After his retirement, with the help of a nonlawyer representative, he sought benefits for shoulder disability connected to injuries that occurred

during service. CAFC App. 11-17, 64. VA’s medical

examination concluded that his “range of motion” in

both shoulders was “limited by pain and pain is the

major functional impact.” CAFC App. 20. The regional office granted him benefits for this serviceconnected disability. Pet. App. 57a-58a.

When the regional office grants a disabilitybenefits claim, it determines the relevant diagnostic

code (or “DC”). It then looks to VA’s Schedule for

Rating Disabilities, which “provides an extensive list

10

of disabilities identified by unique diagnostic codes,

each of which has at least one corresponding disability rating.” Webb v. McDonough, 71 F.4th 1377, 1378

(Fed. Cir. 2023) (citing 38 U.S.C. § 1155; 38 C.F.R.

pt. 4). That rating corresponds to the degree of severity of the veteran’s condition, 38 U.S.C. § 1155;

C.F.R. § 4.1, and determines the monthly compensation the veteran receives, see Dep’t of Veteran Affs.,

Current Veterans Disability Compensation Rates

(Dec. 1, 2024), https://perma.cc/T77H-V3XL. In some

cases, “it is possible that a particular veteran’s disability does not clearly fall under one of the delineated diagnostic codes.” Webb, 71 F.4th at 1378. In that

circumstance, the disability may be rated by analogy

to a “closely related” condition in which “the functions affected, … the anatomical localization[,] and

symptomatology are closely analogous.” 38 C.F.R.

§ 4.20.

In 2004, the regional office assigned Mr. Siples a

10% disability rating for each shoulder by analogy to

DC 5203. CAFC App. 25. That code relates to clavicle

or scapula impairment. 38 C.F.R. § 4.71a. But DC

5203 does not mention the limited range of motion

that the examiner had diagnosed. Mr. Siples did not

appeal the regional office’s decision, and that decision became final.

In 2017, Mr. Siples requested that VA revise its

decision on the basis of CUE. CAFC App. 26; see 38

U.S.C. § 5109A. His CUE claim relied on 38 C.F.R.

§ 4.59, VA’s regulation titled “Painful motion,” which

had been in place at the time of the 2004 regional office decision. Section 4.59 provides details on identifying painful motion of joints. And it states that the

11

“intent” of the rating schedule is “to recognize actually painful, unstable, or malaligned joints” and to

afford them “at least the minimum compensable rating for the joint.” 38 C.F.R. § 4.59. Mr. Siples contended that § 4.59 required the regional office in

2004 to assign him a rating for his painful shoulder

motion, and that the “minimum compensable rating”

for this disability would be 20% under the relevant

diagnostic code, DC 5201. CAFC App. 26; see Veterans Benefits Admin., Department of Veterans Affairs

Adjudication Procedures Manual M21-1 (“M21-1

Manual”), at V.iii.1.A.1.a (updated May 2025),

https://perma.cc/39ZY-P42T (explaining an “actually

painful joint” entitles veteran to minimum compensable rating regardless of whether “the specific criteria” in the DC are met).

The regional office and the Board both denied

Mr. Siples’s CUE claim. The Board concluded that it

was debatable in 2004 whether § 4.59 applied to

painful joint motion that, like Mr. Siples’s condition,

did not involve arthritis. Pet. App. 29a-66a. The first

sentence of the regulation reads: “With any form of

arthritis, painful motion is an important factor of

disability ….” 38 C.F.R. § 4.59; Pet. App. 3a-4a. And

the regulation contains one other mention of “arthritis of the spine.” Certain non-precedential Veterans

Court decisions had reached different outcomes on

whether the regulation was limited to arthritis

claims. The VA Secretary ultimately acknowledged

that § 4.59 applies in non-arthritis contexts. Burton

v. Shinseki, 25 Vet. App. 1, 2-3 (2011). And the Veterans Court agreed: Although “[e]xamining the first

sentence [of § 4.59] out of context can lead one to

consider that the regulation might apply only to the

12

evaluation of arthritis claims,” looking at the whole

regulation, “arthritis is explicitly mentioned only in

the first and third sentences and is not the subject of

the majority of the regulation.” Id. at 4.

The Board reasoned that Burton could not “provide a basis for finding CUE” because it was issued

after Mr. Siples’s initial benefits decision. Pet. App.

43a. But the Board also held that the text of § 4.59

alone was not enough, because in 2004 “VA understood § 4.59 to apply solely to cases of arthritis.” Pet.

App. 22a. In short, the Board required Mr. Siples to

show that the correct legal meaning of § 4.59 at the

time of the original benefits decision was undebatable. See Pet. App. 36a. (characterizing CUE as requiring an “undebatable” legal error).

Mr. Siples appealed, and the Veterans Court affirmed. Pet. App. 19a-28a. The CUE inquiry, it said,

asks whether “(1) the adjudicator … incorrectly applied statutes or regulations in effect at the time,”

“(2) the alleged error was undebatable, not merely a

disagreement as to how … the law was applied[,]”

and “(3) the commission of the alleged error … manifestly changed the outcome of the decision.” Pet.

App. 22a. The Veterans Court characterized Burton

as demonstrating that, before 2011, “there was a

prevailing interpretation that § 4.59 did not apply to

non-arthritis claims, or there was not yet a settled

interpretation that § 4.59 did apply to non-arthritis

claims.” Pet. App. 25a. “Either way,” the Veterans

Court reasoned, “it cannot be said that § 4.59 was

undebatably understood to apply to non-arthritis

claims in 2004.” Id.

13

The Federal Circuit Affirms, In Conflict With

Recent Precedent

Mr. Siples appealed to the Federal Circuit, arguing that the Veterans Court erred in requiring § 4.59

to have been “undebatably understood to apply to

non-arthritis claims in 2004.” CAFC Opening Br. 2.

That is because an adjudicator is not “require[d] …

to review CUE in the context of how a law could

have been understood; rather, CUE is an assessment

of what the law actually required.” Id. As Mr. Siples

explained, in the first step of the CUE analysis, VA

“must first determine what the regulation means,

and then determine whether the RO correctly applied that interpretation.” CAFC Reply Br. 6; see also

CAFC Opening Br. 7-8; CAFC Reply Br. 4. In other

words, Mr. Siples took the position that the agency’s

CUE assessment must start with a determination of

what the law was at the time of the original decision,

not whether the law was settled or undebatable.

After briefing was complete, the Federal Circuit

decided Perciavalle, holding that “the language of [a]

regulation itself can establish the existence of CUE.”

74 F.4th 1374, 1382 (Fed. Cir. 2023). In Perciavalle,

the veteran requested CUE relief where, at the time

of his original benefits decision, there was no onpoint authority governing the issue in his case. Id. at

1377-78. It was only later that the Veterans Court

opined on the issue and VA’s General Counsel issued

a precedential opinion. Id. at 1378. But, citing

George, the Perciavalle panel explained that “the

correct CUE inquiry is simply whether the original

decision was a ‘correct application of a binding regulation’ or law, regardless of later changes in the law

14

or later decisions by the agency or a court.” Id. at

1382 (quoting George, 596 U.S. at 749). “In short, a

legal error may be clear for the purpose of CUE despite the fact that there was no preceding court or

agency decision on the precise legal question.” Id.

The panel in Mr. Siples’s case ordered supplemental briefing to address Perciavalle. CAFC Dkt.

32; see CAFC Dkt. 34 (Siples Supp. Br.); CAFC Dkt.

33 (Gov’t Supp. Br.). 1 In his supplemental brief, Mr.

Siples argued that the Veterans Court improperly

“requir[ed] an authoritative source to publish that

the plain meaning was the plain meaning” in order

to find CUE. CAFC Dkt. 34 at 4. As Mr. Siples

pointed out, Perciavalle rejected the notion that “unless or until ‘a court decision or VA publication’ identifies a legal error, ‘it cannot be CUE.’” CAFC Dkt.

34 at 4.

The Federal Circuit affirmed the denial of Mr.

Siples’s CUE claim. The first part of its opinion reaffirmed, at length, George’s holding that “a determination that there was ‘clear and unmistakable error’

must be based on the record and the law that existed

at the time of the prior VA decision”—something Mr.

Siples has never disputed. Pet. App. 11a (quoting

596 U.S. at 747); see generally Pet. App. 11a-14a.

The panel then turned to the “correct standard

for assessing a legal-based CUE,” Pet. App. 15a. It

1 The court did not have the benefit of supplemental brief-

ing regarding the significance of Loper Bright, because that decision issued after the panel’s decision. See infra 28 n.2.

15

framed that standard in terms of whether the law

“undebatably” favored Mr. Siples. Pet. App. 15a.

First, the panel concluded that, because of “the regulation’s express references to arthritis,” it could not

say that the “plain language of § 4.59 as a whole

clearly applies to cases beyond those involving arthritic painful motion.” Pet. App. 16a (emphasis added). It “emphasize[d]” that it was “not called upon in

this case to conclusively determine the correct interpretation of § 4.59.” Pet. App. 16a. Next, the panel

canvassed Veterans Court decisions issued prior to

or around the time of the original 2004 benefits decision. And it concluded there was a “lack of a settled

interpretation of § 4.59.” Pet. App. 16a. Finally, the

panel explained that a 1998 VA General Counsel

precedential opinion did not answer the question

whether § 4.59 applies to non-arthritis claims, either. Pet. App. 17a-18a. Thus, the Federal Circuit affirmed the CUE denial because “§ 4.59 was not

undebatably understood as applying to cases other

than arthritis, nor was it so clear on its face as to

compel applicability to non-arthritis claims.” Pet.

App. 18a.

Mr. Siples sought rehearing, explaining that the

panel had misapplied the CUE standard in a manner inconsistent with both circuit and Supreme

Court precedent. Although Mr. Siples had consistently argued that CUE is not about “how a law could

have been understood”—that is, whether the meaning of the law was undebatable—but rather “of what

the law actually required,” CAFC Opening Br. 2, the

government’s primary argument against rehearing

was that Mr. Siples had forfeited this argument. The

16

Federal Circuit denied rehearing without explanation. Pet. App. 67a-68a.

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari and correct the

Federal Circuit’s misconstruction of the CUE standard. CUE revision is available where (1) a benefits

decision was erroneous, and (2) that error undebatably altered the outcome of the original decision. But

the Federal Circuit’s opinion now requires the

claimant to show that the meaning of the law governing the original benefits decision was undebatable—a heightened standard for showing error that

appears nowhere in the text codifying the CUE

standard, is contrary to the traditional CUE inquiry,

and conflicts with Loper Bright’s instruction to determine the “best” meaning of the law. The Federal

Circuit’s holding requires this Court’s correction because it introduces conflict into the Federal Circuit’s

caselaw and represents a fundamental misunderstanding of this Court’s decision in George and the

application of Loper Bright in the veterans-benefits

context.

I.

The Decision Below Is Incorrect.

A. CUE calls for a two-step analysis.

1. The CUE statute provides broadly that “[a]

decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error.” 38 U.S.C. § 5109A (regional office);

id. § 7111 (Board). The statute does not define what

the phrase “clear and unmistakable error” means.

17

But as the Court explained in George and as noted

above (at 8) a “robust regulatory backdrop” fills the

gap. 596 U.S. at 746.

The governing regulation, which codifies the

longstanding CUE standard, establishes two principal elements. A clear and unmistakable error that

can be corrected on collateral review is (1) a legal or

factual error (2) that is undebatably outcomedeterminative. The regulation defines CUE as “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.” 38 C.F.R. §§ 3.105(a)(1)(i), 20.1403(a),

(c).

CUE is thus “narrower than error simpliciter.”

George, 596 U.S. at 746-47. Determining whether a

benefits decision is infected with CUE and eligible

for revision does not turn on the mere existence of

“garden-variety ‘error,’” id. at 746, but requires an

adjudicator to perform a sequential two-step analysis.

The first step asks whether the original decision

was infected with legal or factual error. Under

George, the existence of error is based “on the record

and the law that existed at the time of the prior VA

decision.” Id. at 747 (quotation and alteration marks

omitted); see also 38 C.F.R. § 3.105(a)(1)(iii) (“Review

for clear and unmistakable error in a prior final

decision of an agency of original jurisdiction must be

based on the evidentiary record and the law that

existed when that decision was made.”). The CUE

18

adjudicator must assess whether there was an error

solely based on the record, “binding regulation[s],”

and statutory law then in existence. George, 596 U.S.

at 749.

The second step requires a heightened showing

going beyond “error simpliciter.” George, 596 U.S. at

746-47. It asks whether an error identified at step

one was undebatably outcome-determinative—

meaning that reasonable minds could not dispute

that the error resulted in a benefits decision less favorable than the veteran otherwise would have received. Only errors for which “the result would have

been manifestly different but for the error” qualify as

CUE. 38 C.F.R. §§ 3.105(a)(1)(i), 20.1403(a), (c).

This second step of the inquiry presents a high

bar. A veteran must establish not only that the error

was outcome-determinative for his benefits case, but

that “reasonable minds could not differ” on that

question and that the significance of the error is “absolutely

clear.”

38

C.F.R.

§§ 3.105(a)(1)(i),

20.1403(a), (c). It must be undebatable that the error

was not harmless and that “the result would have

been manifestly different but for the error.” 38

C.F.R. §§ 3.105(a)(1)(i), 20.1403(a), (c). In colloquial

terms, a clear and unmistakable error is an obviously harmful error—one that clearly and unmistakably

affected the outcome of a veteran’s case.

2. The statutory and decisional background to

the CUE statute confirms the same two-step understanding of CUE set out in the regulatory text.

19

When Congress enacted the CUE statute in

1997, it was aware of and incorporated contemporaneous VA caselaw articulating the CUE standard.

See Cook v. Principi, 318 F.3d 1334, 1344-45 (Fed.

Cir. 2002) (en banc). These pre-codification decisions

repeatedly articulate the traditional two-step understanding of CUE. A CUE claim requires a showing of

error, plus “persuasive reasons … as to why the result would have been manifestly different but for the

alleged error.” Fugo v. Brown, 6 Vet. App. 40, 44

(1993). CUE requires an initial showing of error, after which the appellant must “demonstrate, bearing

in mind the extra burden of persuasion there is to do

so, that but for the error the result would have been

‘clearly and unmistakably’ different.” Berger v.

Brown, 10 Vet. App. 166, 169 (1997).

VA’s practices—similarly forming part of the

“robust regulatory backdrop” informing the meaning

of the CUE statute, George, 596 U.S. at 746—

confirm the same understanding. To this day, VA’s

Adjudication Procedures Manual states CUE “exists”

if “the statutory or regulatory provisions extant at

the time were incorrectly applied,” and that error

would have “manifestly changed the outcome.” M211 Manual, at X.ii.5.A.1.a, https://perma.cc/G4F97TWR. The Manual confirms that what it means for

an error to be “clear and unmistakable” is that it be

“undebatable” and “absolutely clear that a different

outcome would have resulted” if not for the error. Id.

The legislative history of the CUE statute supports the same conclusion. The House Report quoted

the regulatory language and reiterated that CUE is

“is the kind of error, of fact or of law, that when

20

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.” H.R. Rep. 105-52, at 3

(quoting Russell v. Principi, 3 Vet. App. 310, 313

(1992)). The Report elaborated: “Even where the

premise of error is accepted, if it is not absolutely

clear that a different result would have ensued, the

error complained of cannot be, ipso facto, clear and

unmistakable.” Id.

3. The two-part analysis ensures that CUE focuses on correcting substantive errors that clearly

dictated the outcome of benefits decisions, and does

not invite later reviewers to parse mere process failures or adopt a “grading papers” approach to earlier

decisions.

Thus, according to the Veterans Court decisions

that informed Congress’s enactment of the CUE

statute in 1997, VA’s “failure to give reasons [or] bases” for a denial of benefits could not be CUE, even if

doing so obviously constituted legal error, without a

“compelling case that the result would have been

manifestly different.” Fugo, 6 Vet. App. at 44. But

the failure to apply governing law that entitled the

claimant to a more favorable benefits rating could.

E.g., Look v. Derwinski, 2 Vet. App. 157, 160 (1992)

(CUE where VA “erred in determining that appellant was not entitled to disability benefits for residuals of a herniated disc pursuant to 38 U.S.C.

§ 1151”). This Court in George highlighted “VA’s

failure to apply an existing regulation to undisputed

record evidence” as an exemplar of CUE—a scenario

that lends itself to the heightened showing of out-

21

come-determinativeness because the veteran’s legal

entitlement is clear, the record evidence is undisputed, and the significance of the error is obvious. 596

U.S. at 747.

The two-step standard also reflects Congress’s

goal of correcting errors in benefits adjudication

through an administrable process. Giving a veteran

the opportunity to point out an error in the first instance focuses the attention of the reviewing adjudicator on the original decision and facilitates an

evenhanded inquiry into whether that decision was

infected with error. Requiring the veteran then to

make the further showing that the error was undebatably outcome-determinative facilitates a manageable process for revising erroneous decisions. It

protects the agency’s resources by limiting the scope

of collateral review to consequential, substantive errors. And it saves adjudicators from the need to revisit stale records or reweigh evidence to make close

calls about harmlessness. Only errors that the CUE

adjudicator can easily tell obviously made a difference count.

B. The Federal Circuit conflated the two

steps and misconstrued the CUE

standard.

1. The Federal Circuit adopted the rule that, to

establish CUE, a veteran must demonstrate not just

that the original decision was incorrect, but also that

the applicable rule of law under which he should

have prevailed was undebatable. This holding conflates the two steps of the CUE standard and wrong-

22

ly transplants the undebatability showing to step

one.

The panel denied relief because Mr. Siples had

not shown that “§ 4.59 … undebatably appl[ied] to

non-arthritic conditions” at the time of his original

decision. Pet. App. 16a (emphasis added). The Court

skipped the task of determining what the governing

law had been at the time of the original decision, because it observed that there may have been room for

disagreement as to its meaning. The panel specifically stated that it was “not called upon in this case to

conclusively determine the correct interpretation of

§ 4.59,” Pet. App. 16a, and thus neither analyzed nor

decided whether the original decision denying benefits contained legal error.

The panel stopped its analysis of the text of

§ 4.59, applicable precedent, and other informative

materials as soon as it discerned that there were

multiple possible interpretations. The panel ended

its examination of the text once it concluded that it

“cannot say that the plain language of § 4.59 as a

whole clearly applies to cases beyond those involving

arthritic painful motion.” Pet. App. 16a (emphasis

added). The panel did not examine precedent regarding § 4.59 to determine the correct construction, but

simply noted that a handful of unpublished contemporaneous decisions had “diverged” over whether

§ 4.59 applies to non-arthritic claims, and that none

of these decisions had confronted the question directly. Pet. App. 17a.

The panel also brushed off other relevant sources

of meaning, deeming them further sources of ambi-

23

guity. A 1998 VA General Counsel’s opinion had

characterized “38 C.F.R. §§ 4.40, 4.45, and 4.59” as

applying to “arthritis and other musculoskeletal disabilities”—strongly supporting Mr. Siples’s position—but the panel merely stated that this decision

further “contribute[d] to the lack of clarity regarding

the applicability of § 4.59 to non-arthritis claims at

the time of the RO’s July 2004 decision.” Pet. App.

17a-18a.

In short, the Federal Circuit denied relief not because it rejected Mr. Siples’s claim of legal error, but

because it perceived room for disagreement about

what the law was.

2. This holding is wrong and conflates the two

components of the CUE analysis. While an undebatability requirement applies at step two—outcomedeterminativeness—there is no such requirement

bearing on the initial showing of error. At the first

step, the CUE standard directs the adjudicator to

evaluate whether the original benefits decision was

legally incorrect, not whether the law was subject to

any possible interpretive debate.

As explained above, the Federal Circuit’s error is

plain from the regulatory text, providing that CUE 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.” 38 C.F.R. §§ 3.105(a)(1)(i),

20.1403(a), (c). The phrase “to which reasonable

minds could not differ” applies only to the question

whether “the result would have been … different but

24

for the error.” Id. The text underscores that conclusion by requiring that the result must have been

“manifestly different but for the error,” and dictating

that, “[i]f it is not absolutely clear that a different result would have ensued, the error complained of

cannot be clear and unmistakable.” Id. What must

be “absolutely clear”—the thing on which “reasonable minds” must not “differ”—is that a “manifestly

different … result would have ensued” but for the error. Id. Nothing in the regulatory text imposes an

undebatability requirement on the showing of what

the law was at the time of the original decision.

The Federal Circuit’s error is also plain from the

decisional law forming the background of and baked

into the CUE statute itself—another important part

of the “robust regulatory backdrop” informing the

meaning of CUE, George, 596 U.S. at 746. Prior to

the enactment of the current statute in 1997, CUE

was understood to encompass a decision’s failure “to

conform to the ‘true’ state of … the law that existed

at the time of the original adjudication.” Russell, 3

Vet. App. at 313; see also Look, 2 Vet. App. at 160

(finding CUE in a Board decision that was contrary

to statute, describing the step-one inquiry as

“whether the [Board] erred in determining that appellant was not entitled to disability benefits for residuals of a herniated disc pursuant to 38 U.S.C.

§ 1151”).

The pre-1997 decisions focused the heightened

undebatability

showing

on

the

outcomedeterminativeness question, not the meaning of the

law. In Fugo, for example, the Veterans Court explained that once “the premise of error is accepted, if

25

it is not absolutely clear that a different result would

have ensued, the error complained of cannot be, ipso

facto, clear and unmistakable” 6 Vet. App. at 43-44.

That is, after establishing error, “persuasive reasons” and a “compelling case … must be given as to

why the result would have been manifestly different

but for the alleged error,” but no heightened standard applies to the demonstration of legal error in the

first place. Id. at 44.

Similarly in Berger, decided shortly before the

enactment of the CUE statute, the Veterans Court

reiterated that “[t]he error must be such that the

appellant is able to demonstrate, bearing in mind

the extra burden of persuasion there is to do so, that

but for the error the result would have been ‘clearly

and unmistakably’ different.” 10 Vet. App. at 169.

And Russell—one of the principal influences on Congress’s understanding of CUE as it considered the

1997 legislation, see Cook, 318 F.3d at 1344-45—

defined CUE as “the sort of error which, had it not

been made, would have manifestly changed the outcome at the time it was made.” Russell, 3 Vet. App.

at 313-14. Indeed, Russell appears to be the source of

the “undebatable” concept in the CUE context, and

the Veterans Court clearly used that term to refer to

the effect of the error, not the meaning of the law.

See id. (characterizing CUE as “errors that are undebatable, so that it can be said that reasonable

minds could only conclude that the original decision

was fatally flawed”).

The Federal Circuit thus fundamentally misconstrued the CUE standard as traditionally understood

and as incorporated into the statute: What must be

26

“undebatable,” “manifest,” “clear,” and “unmistakable” is not the meaning of the law under which error

is established, but that the error altered the outcome

of the benefits decision.

3. The Federal Circuit repeatedly invoked

George, Pet. App. 9a-13a, but George does not authorize VA or a court to impose an “undebatability”

hurdle on the initial showing of legal error. As noted

above (at 17-18), George held that the CUE analysis

is strictly limited to the law and facts as they existed

at the time of the original benefits decision. 596 U.S.

at 747. But George did not hold that a veteran faces

the additional burden of proving that the meaning of

the law was undebatable at that time. And nothing

in George establishes a deferential regime in which

CUE relief is available only if the law could not

possibly be read to support the agency’s original

decision. The Federal Circuit erroneously decided an

issue that George did not reach.

II. The Federal Circuit’s Decision Is Contrary

To Loper Bright.

In imposing an undebatability hurdle on the initial showing of legal error, the Federal Circuit not

only erroneously construed the CUE standard and

misapplied George; it also contradicted Loper Bright.

The Federal Circuit’s holding that CUE relief is

available only if the law undebatably favored the

claimant at the time of the original decision requires

CUE adjudicators to stop their analysis of error and

deny relief when there is ambiguity or room for

disagreement about the meaning of the law. It

27

directs CUE adjudicators not to seek the correct

reading of regulations and statutes or the best

synthesis of other applicable legal resources, but

instead to end their inquiry if the meaning of those

authorities could reasonably be debated.

Loper Bright held that courts must set out to determine the “single, best meaning” of the law when

they are charged with deciding what the law is. 603

U.S. at 391-92, 400. The Court abolished Chevron

deference because the APA requires courts to decide

“all relevant questions of law”—“even those involving ambiguous laws”—and does not authorize courts

to end their inquiry because discerning the meaning

of the law is difficult. Id. at 391-92. When courts are

directed to “decide … ‘relevant questions of law,’” the

Court reasoned, they must do so “by applying their

own

judgment”—employing

“no

deferential

standard” unless separately required to do so by a

controlling authority. Id.; see also id. at 416

(Gorsuch, J., concurring) (courts must “offer

independent judgments about ‘what the law is’

without favor to either side”).

CUE adjudicators are required to decide whether

a prior benefits decision was infected with error.

Under Loper Bright, ascertaining what the law

binding on that prior decision was requires them to

evaluate it and offer their independent judgments,

“even” if it appears “ambiguous.” Id. at 391-92. CUE

adjudicators are not permitted to abandon their

inquiry once they encounter room for disagreement.

On the contrary, CUE adjudicators must

independently assess whether a challenged benefits

28

decision was contrary to then-prevailing

without favor to one side or the other.

law,

By directing the CUE adjudicator to rule against

the claimant whenever the law does not undebatably

favor him, the Federal Circuit adopted a rule analytically parallel to the Chevron regime Loper Bright

rejected: Where there is ambiguity or room for disagreement, the challenging party loses. Like Chevron,

the Federal Circuit’s decision requires the adjudicator “to ignore, not follow, ‘the reading [it] would have

reached’ had it exercised its independent judgment.”

Loper Bright, 603 U.S. at 398-99. Without a separate

statutory or regulatory command to adopt such a

stance, that holding cannot survive Loper Bright. 2

The Federal Circuit’s holding is especially

conspicuous because the CUE regime is designed to

be different from other collateral-review devices that

do impose an undebatability requirement on the

showing of legal error. See Loper Bright, 603 U.S. at

392 (noting that the “omission” of a “deferential

standard” in the text of the APA is “telling” because

it contrasts with other provisions). A prime example

is the familiar deferential regime governing federal

habeas petitions. A habeas petitioner must typically

demonstrate not just that a state court decision was

contrary to federal law, but that it was contrary to

“clearly established Federal law,” 28 U.S.C. § 2254(d)

(emphasis added)—in other words, that the law itself

Loper Bright was decided after the original briefing in

this case. At minimum, the Court should grant, vacate, and

remand for further consideration in light of Loper Bright.

2

29

was undebatable. In that context, an undebatability

requirement on the showing of legal error directly

follows from an independent statutory mandate.

With CUE, however, there is no such mandate.

This is by design: With habeas, Congress provided

for relief only if a state court decision was contrary

to “clearly established Federal law” as a way of balancing the importance of enforcing constitutional

rights with competing values like finality and the

rights of States. See Calderon v. Thompson, 523 U.S.

538, 554-55 (1998). By contrast, Congress adopted

the longstanding CUE doctrine as a special form of

collateral review to facilitate the correction of errors

in VA benefits decisions, in keeping with the goal of

an “informal[]” VA “adjudicatory ‘process’” affording

veterans special “solicitude,” Henderson, 562 U.S. at

431. Congress’s goal was to provide an affirmative

channel for veterans to obtain the benefits they

should have been receiving all along. Imposing an

undebatability hurdle on the initial showing of error

is inconsistent with that design.

Affording veterans the benefit of Loper Bright’s

promise of independent and neutral legal interpretation without a thumb on the scale against them if

the legal analysis turns out to be difficult thus fully

implements Congress’s goals for benefits adjudication.

III. The Question Presented Is Important And

Recurring.

The importance of this case amply warrants certiorari. Not only did the decision below tee up a con-

30

flict with prior Federal Circuit precedent that calls

for this Court’s review, but it also tests how that intra-circuit conflict should be harmonized with

George, Loper Bright, and the relevant statutory and

regulatory CUE provisions. Meanwhile, the question

presented will recur in the many CUE claims adjudicated each year, affecting a significant number of

veterans.

A. The Federal Circuit created and failed

to correct an intra-circuit conflict.

The panel’s decision created an intra-circuit conflict that will remain unresolved absent this Court’s

intervention. The ruling here squarely conflicts with

the Federal Circuit’s decision in Perciavalle, which

properly applied this Court’s decision in George and

is consistent with Loper Bright.

Perciavalle rejected what the panel here embraced: that whenever an error “has yet to be identified as erroneous by a court decision or VA

publication,” it cannot be CUE. 74 F.4th at 1382.

The panel in Mr. Siples’s case determined that, because he failed to show the precise legal question in

his case was “undebatably understood” by the agency

or courts at the time of the original benefits decision,

his CUE claim must fail. Pet. App. 18a. That flouts

Perciavalle’s holding that “a legal error may be clear

for the purpose of CUE despite the fact that there

was no preceding court or agency decision on the

precise legal question.” 74 F.4th at 1382.

Moreover, in Perciavalle, the Federal Circuit explained that the job of a CUE adjudicator is to de-

31

termine the “‘correct application of a binding regulation’ or law,” as of the time of the original benefits

decision. Id. at 1382. In fact, the court expressly

couched this conclusion as the application of George,

reasoning that George made “clear … that the correct CUE inquiry is simply whether the original decision was a ‘correct application of a binding

regulation’ or law, regardless of later changes in the

law or later decisions by the agency or a court.” Id.

This focus on the “correct” view of the law is also

consistent with this Court’s mandate in Loper

Bright: that adjudicators charged with deciding what

the law is (or was) must do so independently and

without deference unless directed otherwise by binding authority. See supra 26-29.

Applying that standard to this case underscores

the intra-circuit conflict. In both Perciavalle and this

case, “the alleged legal error or disputable question

of law was resolved by a court decision or official

Agency publication (such as a General Counsel precedential decision) issued after the decision the veteran seeks to collaterally attack became final.”

Perciavalle, 74 F.4th at 1382 (emphasis added). Still,

the Perciavalle court explained that a CUE claim

was permissible in that scenario because the “CUE

regulation does not prohibit CUE claims simply because the law at issue was the subject of a later decision.” Id. Perciavalle drew that principle directly

from George: “[R]egardless of … later decisions by

the agency or a court,” Perciavalle’s CUE inquiry

simply would have asked “whether the original decision was a ‘correct application of a binding regulation’ or law,” period. Id. (quoting George, 596 U.S. at

749). In rejecting the heightened standard the panel

32

below embraced, Perciavalle properly applied the

Supreme Court’s mandate in George, consistent with

Loper Bright.

B. The issues are critical to veterans and

certain to recur frequently.

As a doctrinal matter, the issues presented in

this case are inherently recurring and important.

They test how Loper Bright, George, Perciavalle, and

the applicable statutory and regulatory CUE provisions will be harmonized and applied going forward

in the extremely common CUE context.

Mr. Siples’s reading of the law easily harmonizes

these legal authorities. Under that reading, the

availability of CUE relief turns on (1) whether a

benefits decision is infected with error in light of the

correct understanding of the law as it existed at the

time of the original decision, without regard to

whether “reasonable minds could differ” on the matter and (2) whether it was “absolutely clear” (that is,

“undebatable”) that the error altered the outcome of

the original benefits decision.

As a practical matter, CUE relief is critical to

many veterans, and the Federal Circuit’s cramped

interpretation of what CUE requires will adversely

affect scores of veterans both now and in the future.

At the beginning of the benefits-claims process,

“nearly all veteran benefits claims are resolved at

the regional office stage” and go unappealed. See

Nat’l Org. of Veterans’ Advocs., Inc. v. Sec’y of Veterans Affs., 981 F.3d 1360, 1380 (Fed. Cir. 2020) (en

33

banc). At this stage, nearly all veterans (including

Mr. Siples) lack legal representation; in fact, they

are statutorily barred from paying an attorney to

represent them before the regional office. 38 U.S.C.

§ 5904(c)(1). And “[a]lthough aides from veterans’

service organizations provide invaluable assistance

to claimants seeking to find their way through the

labyrinthine corridors of the veterans’ adjudicatory

system, they are ‘not generally trained or licensed in

the practice of law.’” Comer v. Peake, 552 F.3d 1362,

1369 (Fed. Cir. 2009). So many veterans end up saddled with a decision that becomes final without the

benefit of proper legal argumentation. Moreover,

many CUE claims are bought by veterans whose

claims were denied during the period before judicial

review became available in 1988; CUE is the only

opportunity for these veterans to receive judicial

scrutiny of the lawfulness of VA’s denial.

Under the Federal Circuit’s erroneous ruling,

these veterans will be afforded CUE relief only if the

law that entitled them to benefits was not only clear

but undebatably so. Absent CUE, and absent some

new and relevant evidence warranting a supplemental claim, a veteran is left (at best) with the ability to file a new claim on a theory that the law has

changed since the prior denial. See Spencer v.

Brown, 17 F.3d 368, 373 (Fed. Cir. 1994). It is far

from clear that such an option would be available to

Mr. Siples or similarly situated veterans, given that

the law did not change—only VA’s and the judiciary’s recognition (in Burton) of § 4.59’s meaning did.

But even if this path were open, it provides benefits

only to the date of the new or supplemental claim—

not the original claim the veteran filed (and which

34

should have been granted). Supra 7. Given that

“[t]he amount of disability benefits a veteran is eligible to receive” is calibrated to the “degree to which

the veteran’s ability to earn a living has been impaired,” that money matters. Mansell v. Mansell, 490

U.S. 581, 583 (1989).

IV. This Case Is A Clean Vehicle.

This case is an excellent vehicle because Mr. Siples is entitled to relief under the correct analysis

and because there are no procedural obstacles to review.

To begin, contrary to the government’s contention at the rehearing stage, there is no forfeiture issue. Mr. Siples squarely preserved his argument

that the undebatability requirement applies only to

the question of outcome-determinativeness, not to

the correct understanding of the law at the time of

the original benefits decision. On appeal to the Federal Circuit, he argued that CUE must be “undebatable” in the sense that the “error … would have

‘manifestly changed the outcome at the time it was

made.’” CAFC Opening Br. 9. Further, he explained

that the CUE standard does not require asking “how

a law could have been understood; rather, CUE is an

assessment of what the law actually required” at the

time of the original decision. CAFC Opening Br. 2;

CAFC Reply Br. 5 (“An undebatable error occurs

when the [agency] fails to correctly apply the regulation or applies a misinterpretation of a regulation.”).

The panel cleanly addressed and erroneously decided the issue. In its opinion, the panel expressly

35

separated the issue of outcome-determinativeness

from the question of undebatability. Pet. App. 9a

(“[T]he error must be outcome determinative and

‘undebatable’ … such that ‘reasonable minds could

not differ.’” (emphasis added)). And it emphasized

that CUE is about whether the “understanding” of

the law was undebatable at the time of the original

benefits decision. Pet. App. 15a; see also Pet. App.

9a, 11a, 14a, 15a, 17a, 18a. In seeking rehearing,

Mr. Siples renewed his contrary argument and emphasized that the condition of undebatability applies

only to the outcome-determinativeness of the error.

CAFC Rehearing Pet. 2, 9, 11. The question presented is thus amply preserved and teed up for the

Court’s review.

Furthermore, the question presented would lead

to a different outcome in Mr. Siples’s case. The

flawed interpretation of the CUE standard—

requiring the law to be undebatable—was the sole

basis for both the Veterans Court’s and the Federal

Circuit’s rejection of Mr. Siples’s CUE claim. Pet.

App. 2a, 15a, 22a-25a. Had the courts applied the

proper CUE standard, they would have examined

Mr. Siples’s claim that VA failed to properly apply

§ 4.59 to his original decision. And the Veterans

Court has already recognized that a “proper interpretation” of § 4.59 requires applying it to nonarthritis claims like Mr. Siples’s; only by

“[e]xamining the first sentence out of context” could

one reach a contrary result. Burton, 25 Vet. App. at

4. It was therefore legal error for the VA in 2004 to

fail to apply § 4.59 to Mr. Siples’s claim, and to afford him the minimum 20% rating for painful motion

36

under DC 5201 (rather than the 10% rating it applied under DC 5203). Supra 11.

The Secretary has previously argued that, “even

assuming that the RO’s refusal to apply Section 4.59

in July 2004 was undebatably erroneous, this regulation can only help Mr. Siples if he was entitled to

additional benefits pursuant to DC 5201.” CAFC

Resp. Br. 23-24. And, in the Secretary’s view, Mr.

Siples would be entitled to a rating under DC 5201

only if his “arm’s motion is limited to shoulder level.”

CAFC Resp. Br. 24. The Federal Circuit did not

adopt that argument, so it should not deter this

Court from reviewing the important legal question

presented here, which drove the Federal Circuit’s

decision. In any event, the government’s argument is

wrong. As VA’s Adjudication Procedures Manual

confirms, an “actually painful joint can be [the] basis

for assignment of a compensable evaluation even

though the specific criteria for a compensable evaluation listed in a [DC] for the joint are not met.” M211 Manual, at V.iii.1.A.1.a, https://perma.cc/39ZYP42T. Section 4.59 provides the predicate condition

for benefits: painful motion. And so long as that condition is satisfied, the veteran is entitled to the “minimum compensable rating for the joint” under the

DC, which is 20% here.

CONCLUSION

The Court should grant the petition.

37

Respectfully submitted,

Kenneth H. Dojaquez

CARPENTER CHARTERED

P.O. Box 2099

Topeka, KS 66601

Geoffrey C. Shaw

ORRICK, HERRINGTON &

SUTCLIFFE LLP

355 S. Grand Ave.

Suite 2700

Los Angeles, CA 90071

November 19, 2025

Melanie L. Bostwick

Counsel of Record

Alexandra Bursak

Kamilyn Y. Choi

ORRICK, HERRINGTON &

SUTCLIFFE LLP

2100 Pennsylvania Ave.

NW

Washington, DC 20037

(202) 339-8400

mbostwick@orrick.com