Amicus Curiae Brief — Clinton Siples, Petitioner v. Douglas A. Collins, Secretary of Veterans Affairs

No. 25-609

IN THE

Supreme Court of the United States

_________

CLINTON SIPLES,

Petitioner,

v.

DOUGLAS A. COLLINS,

SECRETARY OF VETERANS AFFAIRS,

Respondent.

_________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Federal Circuit

_________

BRIEF OF AMICI CURIAE THE NATIONAL

ORGANIZATION OF VETERANS’ ADVOCATES

AND THE NATIONAL LAW SCHOOL VETERANS

CLINIC CONSORTIUM IN SUPPORT OF

PETITION FOR CERTIORARI

_________

CARLOS H. SALGUERO

VENABLE LLP

151 W. 42nd St.

New York, NY 10036

ELIZABETH C. RINEHART

Counsel of Record

J. DANIEL EVERSON

VENABLE LLP

600 Mass. Ave., NW

Washington, DC 20001

(410) 528-4646

LCRinehart@Venable.com

Counsel for Amici Curiae

December 22, 2025

i

TABLE OF CONTENTS

Page(s)

INTRODUCTION AND INTEREST OF

AMICI CURIAE ............................................. 1

SUMMARY OF ARGUMENT ............................ 4

ARGUMENT ....................................................... 6

I. ABSENT

THIS

COURT’S

CORRECTION, THE FEDERAL

CIRCUIT’S

ABERRANT

NEW

PRECEDENT WILL NEEDLESSLY

DENY COUNTLESS VETERANS

THEIR RIGHTFUL BENEFITS ................... 6

II. CONGRESS AND THIS COURT

HAVE

ALWAYS

GRANTED

VETERANS

SPECIAL

SOLICITUDE IN CLAIMS FOR

DISABILITY BENEFITS ............................ 10

III.THE “OLD SOIL” OF CUE

ESTABLISHES THAT WHAT MUST

BE “UNDEBATABLE” IS THE

ERROR’S

OUTCOMEDETERMINATIVENESS ............................ 11

A. The CUE Standard Only Requires

That a Veteran Establish That a

Different Outcome Would Have

“Undebatably” Occurred Absent

the Error ................................................... 11

B. The Federal Circuit Failed to

Consider and Account for the “Old

Soil” in Which CUE Was Planted ............ 14

ii

C. Tilling the Old Soil of § 3.105(a)

Establishes That the Outcome of a

Decision Was Required to Be

“Undebatable” Under CUE Review ......... 16

CONCLUSION .................................................. 21

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Brown v. Gardner,

513 U.S. 115 (1994) ..................................... 10, 19

Bufkin v. McDonough,

No. 23-713 (Feb. 1, 2024) .................................... 4

Champagne v. Collins,

No. 25-482 (Nov. 19, 2025).................................. 4

Cook v. Principi,

318 F.3d 1334 (Fed. Cir. 2002) (en banc) ......... 12

Feliciano v. Dep’t of Transportation,

No. 23-861 (Aug. 26, 2024) ................................. 4

Frantzis v. McDonough,

No. 24-452 (Nov. 21, 2024).................................. 4

George v. McDonough,

596 U.S. 740 (2022) ........... 2, 5, 11, 12, 14, 15, 16

Gray v. Wilkie,

No. 17-1679 (Jul. 20, 2018) ................................. 3

Hall v. Hall,

584 U.S. 59 (2018) ............................................. 14

Hatfield v. Collins,

No. 2023-2280, 2025 WL 1271716 (Fed.

Cir. May 2, 2025)............................................... 20

iv

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) ............................................. 1

Johnson v. Robison,

415 U.S. 361 (1974) ....................................... 6, 15

Kisor v. Wilkie,

No. 18-15 (Jan. 31, 2019) .................................... 3

Morissette v. United States,

342 U.S. 246 (1952) ........................................... 15

Pierce v. Principi,

240 F.3d 1348 (Fed. Cir. 2001) ......................... 14

Russell v. Principi,

3 Vet. App. 310 (1992)................................... 4, 12

Sekhar v. United States,

570 U.S. 729 (2013) ........................................... 14

Sellers v. McDonough,

No. 20-1148 (Mar. 24, 2021) ............................... 3

Shinseki v. Sanders,

556 U.S. 396 (2009) ................................... 2, 6, 10

Siples v. Collins,

127 F.4th 1325 (Fed. Cir. 2025)...... 2, 7, 9, 13, 20

Siples v. McDonough,

No. 19-7957, 2021 WL 5919626 (Vet.

App. Dec. 15, 2021) ............................................. 7

Soto v. United States,

No. 24-320 (Oct. 21, 2024) .................................. 4

v

Taggart v. Lorenzen,

587 U.S. 554 (2019) ..................................... 14, 15

Traynor v. Turnage,

485 U.S. 535 (1988) ........................................... 15

United States v. Oregon,

366 U.S. 643 (1961) ..................................... 10, 11

Vidal v. Elster,

602 U.S. 286 (2024) ........................................... 15

Walters v. Nat’l Ass’n of Radiation

Survivors, 473 U.S. 305 (1985) ........................... 6

Willsey v. Peake,

535 F.3d 1368 (Fed. Cir. 2008) ......................... 12

Statutes

38 U.S.C. § 1110 ....................................................... 1

38 U.S.C. § 5103A................................................... 10

38 U.S.C. § 5109A................................................... 11

38 U.S.C. § 7111 ..................................................... 11

42 U.S.C. § 405(g) ................................................... 11

Pub. L. No. 105-11, § 1, 111 Stat. 227 (1997) ........ 18

Regulations

38 C.F.R. § 3.105(a) ................ 2, 5, 11, 12, 16, 18, 19

38 C.F.R. § 4.59 .......................................... 7, 8, 9, 13

vi

38 C.F.R. § 20.1403 ................................................ 12

Other Authorities

143 Cong. Rec. 1566 (1997) .................................... 19

26 Fed. Reg. 1561, 1569 (Feb. 24, 1961) (to

be codified at 38 C.F.R. pt. 3) ........................... 18

27 Fed. Reg. 11886 (Dec. 1, 1962) (to be codified at 38 C.R.F. pt. 3)...................................... 18

Gov’t Accountability Off., VA Disability

Benefits: Training for Claims Processors

Needs to Be Enhanced, GAO-24-107510

(July 23, 2024), https://tinyurl.com/GAO24-107510 ............................................................ 3

U.S. Dep’t of Veterans Affairs, Detailed

Claims Data, Veterans Benefits Administration Reports (last visited Dec. 10,

2025), https://tinyurl.com/VBAReports ............. 9

U.S. Dep’t of Veterans Affairs, VBA Annual

Benefits Report Fiscal Year 2024 (Apr.

2025),

https://tinyurl.com/VBAReport2024 .......................................................... 6, 9

U.S. Dep’t of Veterans Affairs, Veteran Population, Nat’l Ctr. for Veterans Analysis

& Stats. (last updated Mar. 26, 2025),

https://tinyurl.com/VAVetsStats ........................ 1

U.S. Veterans’ Bureau, Regulations and

Procedure: Active and Obsolete Issues as

of December 31, 1928 (1930) ...................... 17, 18

vii

VA Claims and Appeals Modernization, 84

Fed. Reg. 138 (Jan. 19, 2019) ........................... 19

1

INTRODUCTION AND

INTEREST OF AMICI CURIAE 1

Amici curiae National Organization of Veterans’

Advocates, Inc. (“NOVA”) and the National Law

School Veterans Clinic Consortium (“NLSVCC”) are

organizations dedicated to serving this country’s 17

million living veterans 2 and ensuring that promises

made by their Government are kept.

A keystone of that compact between the veteran

and her country is that if a veteran becomes injured

or disabled during her military service, she can apply

for service-related disability benefits. 38 U.S.C. §

1110. Moreover, the veteran can expect to encounter a

non-adversarial, pro-claimant disability benefits

scheme. See Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428, 431 (2011). Indeed, Congress has bestowed on our country’s veterans numerous favorable

statutory protections in the context of claiming disability benefits, and this Court has repeatedly affirmed

the “high degree” of “solicitude” that veterans are to

be afforded in the adjudication of their service-related

disability claims. Id.

Without this Court’s intervention and correction,

though, the decision below threatens to break that

1 No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amici curiae or their counsel made a monetary

contribution to this brief’s preparation or submission.

2 U.S. Dep’t of Veterans Affairs, Veteran Population, Nat’l

Ctr. for Veterans Analysis & Stats. (last updated Mar. 26, 2025),

https://tinyurl.com/VAVetsStats.

2

compact by upholding an ahistorical and misguided

understanding of the Department of Veterans Affairs’

(“VA”) “clear and unmistakable error” review standard (“CUE”). For over a century, CUE and its forebears have been an invaluable safety valve for veterans subject to adverse benefits adjudications. CUE

provides the veteran with a congressionally approved

avenue to collaterally challenge a disability decision

that was fatally infected with a “clear and unmistakable error” of fact or law. See 38 C.F.R. § 3.105(a)(1).

Just three years ago, this Court addressed CUE

and held that this now statutorily codified term of art

is rooted in the “old soil” of history and agency practice. See George v. McDonough, 596 U.S. 740, 746

(2022). But the Federal Circuit’s analysis and outcome

in the decision below “exhibit[s] the very characteristics that Congress sought to discourage.” Shinseki v.

Sanders, 556 U.S. 396, 408 (2009). Under the precedent that now controls in that court, Mr. Siples—and

indeed all future veteran disability claimants who

find CUE in their disability decisions—must now

carry an additional burden of establishing that the

relevant law governing the benefits decision was also

“undebatable” at the time of the original adjudication.

Siples v. Collins, 127 F.4th 1325, 1332 (Fed. Cir.

2025).

This holding is unmoored from nearly a century of

“old soil” history of CUE as applied in the veterans’

benefits context. That history confirms that § 3.105

can only be understood as being concerned with the

outcome determinativeness of CUE. Instead of following this Court’s instruction in George to till the old soil

of CUE, the Federal Circuit decided to completely

3

ignore it. Moreover, this stark about-face by the Federal Circuit not only shut out Mr. Siples—a 25-year

veteran of the United States Air Force with a shoulder

disability—from his disability benefits but risks the

unnecessary deprivation of benefits for leagues of current and future disabled veterans.

Indeed, in 2023 alone, the Veterans Benefits Administration (“VBA”) processed over 2.2 million

claims for disability compensation. See Gov’t Accountability Off., VA Disability Benefits: Training for

Claims Processors Needs to Be Enhanced, GAO-24107510 (July 23, 2024), https://tinyurl.com/GAO-24107510.

As a not-for-profit organization of attorneys and

similar professionals who advocate for disabled veterans across the country, amicus curiae NOVA holds a

significant interest in ensuring this important issue of

veterans’ disability law is not overlooked by this

Court. In addition to connecting veterans to counsel

versed in veterans’ law, NOVA also hosts regular

training seminars and connects its extensive network

of experts to veterans in need. NOVA routinely advocates for the interests of veterans and their representatives, including by filing amicus briefs. See Brief

Amicus Curiae of NOVA, et al., Gray v. Wilkie, No. 171679 (Jul. 20, 2018); Brief Amicus Curiae of NOVA, et

al., Kisor v. Wilkie, No. 18-15 (Jan. 31, 2019); Brief

Amicus Curiae of NOVA, Sellers v. McDonough, No.

20-1148 (Mar. 24, 2021). As attorneys and advocates

for disabled veterans, NOVA and its members have a

keen interest in ensuring the nation’s veterans law remains clear and aligned with the long-standing tradition of deference to veterans in the benefits system.

4

Amicus curiae NLSVCC is a collaborative effort of

the nation’s law school legal clinics and pro bono advocates dedicated to addressing the needs of veterans

and servicemembers. NLSVCC’s interest in this case

stems from its members’ commitment to ensuring that

the courts’ jurisprudence is consistent with Congress’s

intent in creating and sustaining a non-adversarial

VA benefits scheme. NLSVCC has also filed amicus

briefs in connection with its veterans advocacy. See

Brief Amicus Curiae of NLSVCC, Bufkin v.

McDonough, No. 23-713 (Feb. 1, 2024); Brief Amicus

Curiae of NLSVCC, Bufkin v. McDonough, No. 23-713

(July 2, 2024); Brief Amicus Curiae of NLSVCC, Feliciano v. Dep’t of Transportation, No. 23-861 (Aug. 26,

2024); Brief Amicus Curiae of NLSVCC, Soto v.

United States, No. 24-320 (Oct. 21, 2024); Brief Amicus Curiae of NLSVCC, Frantzis v. McDonough, No.

24-452 (Nov. 21, 2024); Brief Amicus Curiae of

NLSVCC, Soto v. United States, No. 24-320 (Mar. 10,

2025); Brief Amicus Curiae of NLSVCC, Champagne

v. Collins, No. 25-482 (Nov. 19, 2025). As an organization comprised of veterans’ advocates, scholars, and

veterans themselves, NLSVCC likewise shares significant concerns with keeping the state of veterans’ benefits law aligned with traditional understandings of

the pro-claimant system.

SUMMARY OF ARGUMENT

This Court should grant the Petition for a Writ of

Certiorari to clarify that the VA’s CUE standard only

requires that the outcome of an erroneous decision be

“undebatable” but for the clear and unmistakable error. Russell v. Principi, 3 Vet. App. 310, 313 (1992).

The Federal Circuit’s novel and unprecedented

5

standard will harm veterans and contradict Congress’s intent to provide them with a pro-claimant

benefits scheme and a plain reading of the controlling

regulation’s own text. See 38 C.F.R. § 3.105(a)(1).

Allowing the decision below to stand should bring

this Court great pause, as it will prevent untold numbers of current and future disabled veterans with otherwise valid disability claims infected by clear and unmistakable errors from receiving due compensation

for their service.

What is more, in George—a decision directly addressing CUE relief itself—this Court exhorted that,

as CUE is a legal term of art, it “brings the old soil

with it.” 596 U.S. at 746 (cleaned up). Put another

way, “Congress codified and adopted the clear-and-unmistakable-error doctrine as it had developed under

prior agency practice” by examining the “long regulatory history” of CUE. Id. The Federal Circuit failed to

till this old soil. Had it done so, it would have found

that today’s CUE standard descends from nearly a

century of verbatim veterans regulation analogues

that can only be understood as requiring CUE to be

outcome-determinative.

This Court should grant the Petition.

6

ARGUMENT

I.

ABSENT THIS COURT’S CORRECTION,

THE FEDERAL CIRCUIT’S ABERRANT

NEW PRECEDENT WILL NEEDLESSLY

DENY COUNTLESS VETERANS THEIR

RIGHTFUL BENEFITS.

This is not a case that presents purely conjectural

legal questions. The CUE standard provides necessary protection for millions of veterans like Mr. Siples,

helping them to reverse erroneous benefits decisions

for injuries suffered in connection with their military

service. Indeed, CUE appeared in the discussions of

over 3,600 Board of Veterans’ Appeals (“BVA”) claims

decisions this year alone.

Congress and the courts have long recognized the

“unique” and “special sacrifices made by veterans.”

See Johnson v. Robison, 415 U.S. 361, 381 n.15 (1974)

(citation omitted). “A veteran, after all, has performed

an especially important service for the Nation, often

at the risk of his or her own life.” Shinseki, 556 U.S.

at 412. Thus, since the Founding, Congress has provided “for [the veteran] . . . his widow and his orphan.”

Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S.

305, 309 (1985) (quotation marks omitted). “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, 556 U.S. at 400. As of 2024, the VA

reported over 5.9 million veterans and over 500 thousand surviving spouses and surviving children as receiving service-connected disability benefits. U.S.

Dep’t of Veterans Affairs, VBA Annual Benefits Report

Fiscal

Year

2024

73

(Apr.

2025),

7

https://tinyurl.com/VBAReport2024 (“VBA Compensation Report”).

Mr. Siples is one of 4.3 million veterans seeking

benefits related to musculoskeletal disability, one of

the most common bases claimed for receiving benefits.

VBA Compensation Report at 73. It is undisputed that

“[f]ollowing decades of service from 1978 to 2003, Mr.

Siples sought compensation for bilateral shoulder

problems following a history of dislocations and subluxations.” Siples v. McDonough, No. 19-7957, 2021

WL 5919626, at *1 (Vet. App. Dec. 15, 2021) (“Siples

I”), aff’d sub nom. Siples v. Collins, 127 F.4th 1325

(Fed. Cir. 2025) (“Siples II”). Yet, he was denied benefits based on this musculoskeletal disability under 38

C.F.R. § 4.59 (“Painful Motion”) because the Court of

Appeals for Veterans Claims and the Federal Circuit

wrongly held that Mr. Siples was required to show

that it was “undebatable” that § 4.59 applied outside

non-arthritic painful motion at the time of the decision. See 127 F.4th at 1332–34.

The BVA has been quick to deny CUE relief to

many others in Mr. Siples’s position. Indeed, a search

of its decisions database reveals that VLJs have relied

on Siples I and II and denied CUE relief for veterans

claiming § 4.59-related disability in at least 20 reported cases. 3

See No. 190321-4911 (BVA Jan. 20, 2022),

(denying

https://www.va.gov/vetapp22/Files1/A22000825.txt

CUE based on CAVC’s reading of Siples reading of 38 C.F.R. §

4.59);

No.

181210-1380

(BVA

Apr.

26,

2022),

https://www.va.gov/vetapp22/Files4/A22007487.txt (same); No.

200518-84149

(BVA

May

10,

2023),

https://www.va.gov/vetapp23/Files5/A23009644.txt (same); No.

3

8

Moreover, the Federal Circuit’s flawed reading of

CUE is not limited to interpretations of § 4.59 and will

20-05

234

(BVA

Aug.

15,

2023),

https://www.va.gov/vetapp23/Files8/23045218.txt (same); No.

231120-395981

(BVA

Jan.

5,

2024),

https://www.va.gov/vetapp24/Files1/A24000662.txt (same); No.

220830-273693

(BVA

Oct.

25,

2024),

https://www.va.gov/vetapp24/Files10/A24069000.txt (same); No.

211129-200773

(BVA

Oct.

30,

2024),

https://www.va.gov/vetapp24/Files10/A24070274.txt (same); No.

210202-133290

(BVA

Oct.

1,

2024),

https://www.va.gov/vetapp24/Files10/A24062262.txt (same); No.

201208-153244

(BVA

Aug.

8,

2024),

https://www.va.gov/vetapp24/Files8/A24045068.txt (same); No.

210405-150196

(BVA

Oct.

28,

2024),

https://www.va.gov/vetapp24/Files10/A24069269.txt (same); No.

210623-169323

(BVA

Dec.

11,

2024),

https://www.va.gov/vetapp24/Files12/A24082422.txt (same); No.

210419-154368

(BVA

Nov.

13,

2024),

https://www.va.gov/vetapp24/Files11/A24073988.txt (same); No.

231214-402116

(BVA

Mar.

17,

2025),

https://www.va.gov/vetapp25/Files3/A25024469.txt (same); No.

220616-252735

(BVA

Jan.

28,

2025),

https://www.va.gov/vetapp25/Files1/A25007379.txt (same); No.

230511-347612

(BVA

Feb.

24,

2025),

https://www.va.gov/vetapp25/Files2/A25016426.txt (same); No.

230411-337775

(BVA

Mar.

20,

2025),

https://www.va.gov/vetapp25/Files3/A25026215.txt (same); No.

220922-280832

(BVA

Aug.

15,

2025),

https://www.va.gov/vetapp25/Files8/A25069388.txt

(denying

CUE based on Federal Circuit’s Siples II precedent for § 4.59related disability); No. 211220-205928 (BVA Apr. 16, 2025),

https://www.va.gov/vetapp25/Files4/A25034937.txt (same); No.

230104-310807

(BVA

Apr.

23,

2025),

https://www.va.gov/vetapp25/Files4/A25037520.txt (same); No.

210927-187554

(BVA

Feb.

13,

2025),

https://www.va.gov/vetapp25/Files2/A25013946.txt (same); No.

250327-526132

(BVA

June

12,

2025),

https://www.va.gov/vetapp25/Files6/A25051851.txt (same).

9

spread to other aspects of claim review, affecting

many millions of veterans. In 2024, the VBA completed processing on more than 2.5 million disability

and pension claims, with only half a million new veterans and dependents receiving benefits. Compare

U.S. Dep’t of Veterans Affairs, Detailed Claims Data,

Veterans Benefits Administration Reports (last visited Dec. 10, 2025), https://tinyurl.com/VBAReports

with VBA Compensation Report at 72.

That means in 2024, more than 2 million veterans

had their disability or pension claims denied by the

VBA. Id. Of those 2 million denials, appeals raising

CUE challenges are doubtless to follow in a great

many cases, particularly given that amici and other

organizations stand ready to advocate and provide legal services on behalf of the veterans in question. In

2025, the year in which the Federal Circuit decided

Siples, some 3,600 BVA claims decisions mention the

CUE standard, and 141 considered the same regulation on painful motion, 38 C.F.R. § 4.59, as Mr. Siples

raised.

Placing the cost—both financially and emotionally—of the Federal Circuit’s error on veterans is antithetical to the special solicitude given to veterans in

the benefits system in exchange for the sacrifices they

have already made while serving their nation.

But with the Federal Circuit’s erroneous decision

on the books, the longstanding history and tradition

of deference to veterans in our legal system remains

at risk. This Court should step in and correct this error.

10

II.

CONGRESS AND THIS COURT HAVE ALWAYS GRANTED VETERANS SPECIAL

SOLICITUDE IN CLAIMS FOR DISABILITY BENEFITS

Given their unique duties and sacrifices to their

country, veterans have historically received special

“solicitude” from Congress and the courts when it

comes to claims for service-connected disability benefits. See United States v. Oregon, 366 U.S. 643, 647

(1961) (noting the reliance of veterans on this “solicitude,” as “[m]any veterans . . . have had to depend

upon these benefits for long periods of their lives.”).

For example, “[t]he VA differs from virtually every

other agency in being itself obliged to help the claimant develop his claim, and a number of other provisions and practices of the VA’s administrative and judicial review process reflect a congressional policy to

favor the veteran.” Shinseki, 556 U.S. at 415 (Souter,

J., dissenting) (citing 38 U.S.C. § 5103A) (internal citation omitted).

Gardner presumption is yet another exemplar of

the “decision to place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions[.]” Id. at 416. That

“longstanding” interpretive rule provides “that interpretive doubt is to be resolved in the veteran’s favor.”

Id. (quoting Brown v. Gardner, 513 U.S. 115, 118

(1994)).

CUE, which lies at the heart of this case, is another

“comparable benefit.” Id. Unlike other traditional adjudicatory benefits schemes, in which firm rules of

11

finality govern agency determinations, 4 CUE allows a

disabled veteran to seek collateral review of an adverse VA benefits decision on the basis that the decision was infected with clear and unmistakable error.

38 C.F.R. § 3.105(a)(1)(i). CUE is another essential

brick in the wall of veterans’ law, upholding the special “solicitude” that a proud Nation affords to its military servicemembers. Oregon, 366 U.S. at 647.

III.

THE “OLD SOIL” OF CUE ESTABLISHES

THAT WHAT MUST BE “UNDEBATABLE”

IS THE ERROR’S OUTCOME-DETERMINATIVENESS

A. The CUE Standard Only Requires That a

Veteran Establish That a Different Outcome Would Have “Undebatably” Occurred Absent the Error

Pursuant to CUE, Congress provides a veteran like

Mr. Siples an avenue to seek a revision or reversal of

an adverse final disability benefits decision if the veteran “establishes” the existence of a “clear and unmistakable error” in the decision. 38 U.S.C. § 7111 (addressing Board of Veterans’ Appeals); 38 U.S.C. §

5109A (same, addressing the Secretary of Veterans

Affairs). As explained in George, Congress has provided no further definition of CUE. 596 U.S. at 746.

Instead, and as discussed below, CUE carries the

“‘same meaning’ that the VA had long applied” in its

4 Consider, for example, the Social Security Administration’s

regime, wherein final determinations of the agency are appealable only to the courts, not by collateral attack to the agency itself.

See 42 U.S.C. § 405(g) (providing federal courts jurisdiction to

review social security matters).

12

previous iterations since the 1920s. Id. (citation omitted).

Presently, VA regulations define CUE as “a very

specific and rare kind of error.” 38 C.F.R. §

3.105(a)(1)(i). 5 “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.” Id. “If it is not absolutely clear that a different result would have ensued,

the error complained of cannot be clear and unmistakable.” Id. (emphasis added).

Until now, this “reasonable minds could not differ”

language has long been understood and interpreted to

mean that the errors themselves—not the state of law

at the time of disability decision—would be “undebatable.” 6 Russell, 3 Vet. App. at 313–14 (establishing

CUE in a prior decision requires showing the error

would “undebatably” “change the outcome”); Cook v.

Principi, 318 F.3d 1334, 1345 (Fed. Cir. 2002) (en

banc) (making Russell’s CUE test law of the circuit

and explaining that CUE will not lie “even where the

premise of error is accepted, if it is not absolutely clear

that a different result would have ensued”); Willsey v.

Peake, 535 F.3d 1368, 1373 (Fed. Cir. 2008) (no CUE

5 Regulations governing the Board of Veterans’ Appeals deci-

sions lay out a substantially identical CUE standard. See 38

C.F.R. § 20.1403.

6 To be clear, amici do not take issue with that portion of the

Federal Circuit’s decision opining 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.” George, 596 U.S. at 747.

13

because it was entirely debatable whether a reasonable adjudicator could weigh the evidence in the way

the adjudicator did).

But instead of following its own settled precedent,

the court below erred by injecting a novel anti-claimant gloss to CUE: A “legal-based CUE” now requires a

veteran to further establish that the law covering the

claim was “undebatably” clear at the time of the decision to be successful on collateral review. Siples, 127

F.4th at 1331–34. Following this new and misguided

formula, the Federal Circuit concluded that Mr. Siples

cannot ever receive benefits for his injuries, despite

his 25 years of service. The Court reasoned that while

the law today would entitle him to minimum disability compensation under 38 C.F.R. § 4.59 even though

he does not have arthritis, because the understanding

of the scope of § 4.59 was purportedly up for debate at

the time of his decision in 2004, no CUE can lie. See

generally id. But that is never what CUE in any of its

forms asked for or concerned itself with. See infra Part

B. The CUE statutes’ text necessarily relies on the

CUE regulation and the “old soil” of CUE doctrine and

VA practice to give the words “clear and unmistakable

error” definition. As shown below, since the 1920s, the

VA was only ever concerned with error-correcting outcome-determinative mistakes; it was silent about

whether a veteran must also show that the law to be

applied at the time of the decision was settled beyond

a reasonable doubt in order to successfully benefit

from CUE.

As this Court repeatedly instructs and the Federal

Circuit acknowledges, the “goal when interpreting a

statute is to give effect to the intent of Congress.”

14

Pierce v. Principi, 240 F.3d 1348, 1352 (Fed. Cir.

2001).

If Congress “meant to transform” CUE “into something sharply contrary to what it had been, we would

have heard about it.” Hall v. Hall, 584 U.S. 59, 74–75

(2018). For the sake of veterans at risk of losing out on

just compensation, this Court should grant the petition to clarify that the Federal Circuit erred when it

took CUE, “a term that had meant, for more than a

century,” one thing and “silently and abruptly reimagine[d]” it to lay more burdens on veterans. Id.

B. The Federal Circuit Failed to Consider

and Account for the “Old Soil” in Which

CUE Was Planted

Compounding this error is the fact that the Federal

Circuit expressly acknowledged in the decision below

that the relevant benefits “statutes do not define

CUE,” then cited to George—a case in which this

Court did address how to import meaning into CUE

from “old soil”—but then entirely failed to undertake

such an analysis.

In George, this Court squarely addressed Congress’s use of the phrase “clear and unmistakable error” in the context of veterans’ benefits. George reaffirmed the teaching that, where Congress employs a

“term of art,” like CUE, in a statute that is “obviously

transplanted from another source,” then the “old soil”

of that term comes with it and provides definition absent contrary indication. 596 U.S. at 740 (citing Taggart v. Lorenzen, 587 U.S. 554, 560 (2019)) (cleaned

up). See Sekhar v. United States, 570 U.S. 729, 732–

33 (2013) (“[A]bsent other indication, Congress

15

intends to incorporate the well-settled meaning of the

common-law terms it uses.” (cleaned up)).

Stated differently,

[W]here Congress borrows terms of art in

which are accumulated the legal tradition and meaning of centuries of practice,

it presumably knows and adopts the

cluster of ideas that were attached to

each borrowed word in the body of learning from which it was taken and the

meaning its use will convey to the judicial mind unless otherwise instructed.”

Morissette v. United States, 342 U.S. 246, 263 (1952).

See, e.g., Taggart, 587 U.S. at 561 (finding that bankruptcy code provisions carried with them the “old soil”

of civil contempt power); Traynor v. Turnage, 485 U.S.

535, 546 (1988) (Congress intended that the term

“willful misconduct” in the Rehabilitation Act receive

the same meaning for purposes of that statute as it

had received for purposes of other veterans’ benefits

statutes).

Practically speaking, determining what “old soil” a

term of art like CUE carries calls for an inquiry into

the legislative history, regulatory history, and administrative practice of the VA, to see what it “reveal[s]”

about the term as adopted by Congress. See George,

596 U.S. at 741; Johnson, 415 U.S. at 368 (looking to

administrative practice of the VA and legislative history behind bar of judicial review of constitutional

questions within the BVA); see also Vidal v. Elster,

602 U.S. 286, 301 (2024) (looking to “history and tradition” and the Lanham Act’s “deep roots in our legal

16

tradition” in holding that the Act’s “names clause” did

not violate free speech).

Taking in the “robust regulatory backdrop” of CUE

as old soil, George made clear that Congress “codif[ied]

and adopt[ed]” the CUE “doctrine as it had developed

under prior agency practice.” 596 U.S. at 746 (citation

and quotation marks omitted); see id. at 753 (explaining that “statutory ‘silence’ on the details of prior regulatory practice [with respect to CUE] leave the matter where it was pre-codification.”).

While George concerned the issue of whether the

application of a later invalidated VA regulation could

amount to CUE (it does not), it never addressed the

issue raised here by Mr. Siples—whether CUE precluded where any debate or doubt existed as to the

scope of the regulation at the time of the decision. Had

the Federal Circuit tilled this old soil, it would have

found in the same robust regulatory history its answer: No. Instead, it kicked silt into the river and

muddied the water for veterans like Mr. Siples and

amici, who make it their mission to advocate for this

country’s millions of servicemembers.

C. Tilling the Old Soil of § 3.105(a) Establishes That the Outcome of a Decision Was

Required to Be “Undebatable” Under CUE

Review

For nearly a century, some form of CUE has existed in the context of veterans’ benefits claims. A Veterans’ Bureau (“Bureau”) regulation from 1924, for example, permitted review of benefits ratings under a

CUE analogue:

17

In exceptional and unusual cases wherein

there is clear and unmistakable proof that an

error has occurred, the [B]ureau may upon

application or on its own motion review such

previous rating in accordance with facts even

though that may involve a revision for a period of more than six months prior to the date

of correction[.]

Veterans’ Bureau Regulation (“VBR”) No. 86, §

3065(b)(3) (1924), in U.S. Veterans’ Bureau, Regulations and Procedure: Active and Obsolete Issues as of

December 31, 1928, 140–41 (1930) (emphasis added).

Even earlier Bureau regulations describe such

CUE errors as including a “glaring error (such as confusion of name, a misfiling of report, etc.).” See, e.g.,

VBR No. 50 (1920) (allowing revision effective dates of

compensation), No. 65 (1924) (same), in id. at 54, 126.

Clearly, nothing could be more outcome-determinative than establishing that the wrong veteran was entitled to the claimant’s benefits due to an error of fact.

And the outcome-determinative effect of the error only

became clearer as the regulation evolved.

A 1928 Bureau regulation establishing Regional

Rating Boards provided:

That the rating board may reverse or amend

a decision by the same or any other rating

board where such reversal or amendment is

obviously warranted by a clear and unmistakable error shown by the evidence in file at the

time the prior decision was rendered[.]

18

VBR No. 187, § 7155 (1928), in id. at 21 (emphasis in

original).

Taken together, the Veterans’ Bureau recognized,

over a century ago, the importance of a collateral avenue for a veteran to address an erroneous rating as an

additional means of extending national gratitude to

its veterans. But this “old soil” makes clear that only

“unmistakable proof” of erroneous facts that would

“undebatably” change the outcome of the claim—e.g.,

incorrect names, filing errors, or other factual evidence already contained in the veteran’s file—could

provide that avenue.

In 1956, the CUE standard was formally adopted

into federal regulations, and this “old soil” necessarily

came with it. See 38 C.F.R. § 3.105(a) (1956 Cum.

Supp. 1963); 26 Fed. Reg. 1561, 1569 (Feb. 24, 1961)

(to be codified at 38 C.F.R. pt. 3) (“Previous determinations . . . will be accepted as correct in the absence

of clear and unmistakable error.”). Thereafter, §

3.105(a) was amended from time to time without

change to the CUE standard. See, e.g., 27 Fed. Reg.

11886 (Dec. 1, 1962) (to be codified at 38 C.R.F. pt. 3)

(modifying other language in § 3.105(a) but keeping

CUE intact). As discussed below, later revisions to the

regulation confirm that any application of the term

“undebatable” was concerned with a different final

outcome pertaining to the decision of whether to

grant, not the state of the law at the time.

In 1997, the CUE standard was codified into statutory law. Pub. L. No. 105-11, § 1, 111 Stat. 2271

(1997). The legislative history surrounding this

amendment to veterans’ law demonstrates that the

19

purpose of CUE was to “rectify” the “kind of errors . . .

which are egregious and undebatable” such that “the

result would have been manifestly different.” 143

Cong. Rec. 1566, 1567 (1997) (emphasis added).

Clearly, it was not the intent for the state of the law

to be “undebatable” before the reviewing body, but rather that the error itself created a “result” “undebatabl[y]” different from what a non-erroneous application of law would produce. And even if the legislative

history were not so precise, Gardner presumption

should tip the scales in favor of this reading: The proveteran canon, in addition to the “old soil” and the legislative history behind CUE’s statutory adoption,

should have guided the Federal Circuit here to conclude outcome-determinativeness is what must be

“undebatable.”

In 2019, the Department of Veterans Affairs promulgated a new rule, which added a further definition

to § 3.105(a)(1)(i). See VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (Jan. 19, 2019) (to be codified at 38 C.F.R. pts. 3, 8, 14, 19, 20, 21). In response

to comments pertaining to changes in the binding nature of favorable findings (as opposed to final adjudicated decisions), the VA explained that the “clear and

unmistakable standard applicable to rebuttal [of favorable decisions] is similar to the definition of CUE

found in § 3.105(a)(1)(i).” Id. at 141–42. “However, application of the clear and unmistakable standard for

rebuttal of a favorable finding is legally distinct because, for instance, it is limited to the scope of the favorable finding itself and does not require a further

determination that the outcome of the benefit adjudication would undebatably change,” such as in §

3.105(a). Id. at 141. (emphasis added).

20

Thus, contrary to the Federal Circuit’s decision below, there can be no mistake that the VA itself intended outcome-determinativeness to be the “undebatable” subject of a CUE assessment, not additionally the state of the law at the time of the adjudication.

Its failure to reach that conclusion sets up significant

harm to the state of veterans’ law, something that

amici asks this Court to undo and avoid.

Because the history and old soil of CUE contemplate that the error must “undebatably” be outcome

determinative, this Court should grant the petition to

clarify and harmonize the law before further courts

entrench this erroneous understanding. See, e.g., Hatfield v. Collins, No. 2023-2280, 2025 WL 1271716, at

*3 (Fed. Cir. May 2, 2025) (affirming denial of a veteran’s claim and applying the Siples panel’s view of

CUE to a veteran’s claim).

21

CONCLUSION

Amici curiae urge this Court to grant the Petition

for a Writ of Certiorari.

Respectfully submitted,

ELIZABETH C. RINEHART

Counsel of Record

J. DANIEL EVERSON

VENABLE LLP

600 Mass. Ave., NW

Washington, DC 20001

(410) 528-4646

LCRinehart@Venable.com

CARLOS H. SALGUERO

VENABLE LLP

151 W. 42nd Street

49th Floor

New York, NY 10036

DECEMBER 22, 2025