Latest Case: George v. McDonough (Military Law)

How Not to Criticize the American Rescue Plan Act of 2021

MICHAEL C. DORF

Cornell law professor Michael C. Dorf responds to three broad-based objections by Republican opponents to the American Rescue Plan Act of 2021: (1) that the already-recovering economy doesn’t need stimulus; (2) that many of the Act’s provisions have nothing to do with COVID-19; and (3) that there will be waste, fraud, and abuse. Professor Dorf explains why these objections ring hollow and argues that while the Act is not perfect legislation and will likely face challenges in implementation, it is a much better option than anything Republicans were offering.

Read More

George v. McDonough

Docket: 19-1916

Opinion Date: March 16, 2021

Judge: Raymond T. Chen

Areas of Law: Military Law, Public Benefits

The statutory presumption of soundness states: [E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time ... or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service, 38 U.S.C. 1111. The VA’s prior section 1111 implementing regulation did not require clear and unmistakable evidence of lack of aggravation by service for rebuttal but required only clear and unmistakable evidence that the disorder “existed prior [to service].” In 2003, the VA invalidated the regulation for conflicting with the statutory language and amended the regulation to require evidence of both preexisting condition and no aggravation, 70 Fed. Reg. 23,027, 23,028. The Federal Circuit affirmed. Veterans, whose claims for disability benefits were denied decades ago, sought revision of the denial decisions, alleging that the VA had committed clear and unmistakable error (CUE). The Veterans Court affirmed the Board of Veterans’ Appeals’ denials of the motions, reasoning that the VA did not commit a clear and unmistakable legal error when it faithfully applied the version of the presumption of soundness regulation that existed at the time. The Federal Circuit affirmed. A legal-based CUE requires a misapplication of the law as it was understood at that time, and cannot arise from a subsequent change in interpretation in the law.