United States Court of Appeals 

for the Federal Circuit ______________________

MARK W. SMITH,

Claimant-Appellant

v.

DENIS MCDONOUGH, SECRETARY OF 

VETERANS AFFAIRS,

Respondent-Appellee

______________________

2022-2169

______________________

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 20-8633, Judge Joseph L. Toth.

______________________

Decided: May 20, 2024

______________________

KENNETH M. CARPENTER, Law Offices of Carpenter 

Chartered, Topeka, KS, argued for claimant-appellant.

 REBECCA SARAH KRUSER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. 

Also represented by BRIAN M. BOYNTON, MARTIN F.

HOCKEY, JR., BRENDAN DAVID JORDAN, PATRICIA M.

MCCARTHY; BRIAN D. GRIFFIN, JONATHAN KRISCH, Office of 

General Counsel, United States Department of Veterans 

Affairs, Washington, DC.

______________________

Case: 22-2169 Document: 38 Page: 1 Filed: 05/20/2024
2 SMITH v. MCDONOUGH

Before LOURIE, LINN, and STOLL, Circuit Judges.

LINN, Circuit Judge

Mark W. Smith (“Smith”), a United States Navy veteran, appeals the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the

denial by the Board of Veterans Appeals (“Board”) of 

Smith’s motion to revise a prior Board decision on the basis 

of clear and unmistakable error (“CUE”). Because the Veterans Court did not legally err in interpreting the CUE 

standard in 38 C.F.R. § 20.1403, we affirm.

BACKGROUND

Smith began his service in the Navy in 1986. In October of 1991, he was diagnosed with deep vein thrombosis 

(“DVT”)1 and was discharged as no longer physically fit for 

duty. Soon thereafter, a service treatment record noted 

that his DVT was resolved. Smith later filed a claim for 

service connection for DVT. In January 1992, the Regional 

Office (“RO”) of the Department of Veterans Affairs (“VA”) 

denied his request. Smith appealed to the Board.

The Board affirmed the denial of service connection in 

1996. J.App’x at 22–34 (“1996 Board Decision”). It held 

that Smith’s claim for service connection was not wellgrounded because “there is no medical evidence to show 

that he currently has [DVT].” Id. at 30.2 Smith did not 

appeal the Board’s decision, and it became final.

1 Deep vein thrombosis occurs when a blood clot 

forms in a deep vein in the body; it can cause leg pain and 

swelling.

2 During the pendency of Smith’s original claim, veterans had the burden of submitting evidence that their 

claims were well-grounded. 38 U.S.C. § 5107(a) (1994).

Case: 22-2169 Document: 38 Page: 2 Filed: 05/20/2024
SMITH v. MCDONOUGH 3

In October of 2012, Smith filed a new claim for service 

connection for DVT, and in October of 2013, the VA granted 

service connection with a 40% disability rate and an effective date of October 31, 2012.

In 2016, Smith filed a motion seeking to revise the 1996 

Board Decision, alleging that the 1996 Board’s determination that his claim was not well-grounded was tainted by 

CUE. He argued that there was enough evidence in front 

of the 1996 Board that showed extant DVT, including Physical Evaluation Board (“PEB”) reports, to have overcome 

the well-grounded threshold. He thus asserted that his 

claim should have been allowed to proceed aided by the 

VA’s duty to assist. The Board denied his motion. J.App’x 

at 42–49. Smith appealed to the Veterans Court. Subsequently, Smith and the Secretary filed a joint motion for 

remand for the Board to consider whether the PEB reports 

from 1991 and 1994 were probative of a diagnosis of DVT.

On remand, the Board issued the 2020 Board Decision 

now on appeal, again denying a CUE revision for the 1996 

Board Decision. In re Smith, No. 22-2169 (B.V.A. Sept. 4, 

2020) (“2020 Board Decision”), J.App’x at 106–19. The 

2020 Board agreed with Smith that because there was 

some evidence that supported his claim, the Board’s dismissal of his claim in 1996 as not being well-grounded was 

incorrect. Nonetheless, the Board held that the error was 

insufficient to support CUE. Given the presence of evidence on both sides of the question, the Board could not 

This requirement conditioned the VA’s duty to assist upon 

whether the veteran presented a well-grounded claim. Nolen v. Gober, 222 F.3d 1356, 1360 (Fed. Cir. 2000). On November 9, 2000, Congress amended § 5107(a), removing the 

well-grounded claim requirement. See 38 U.S.C. 5107(a) 

(2000).

Case: 22-2169 Document: 38 Page: 3 Filed: 05/20/2024
4 SMITH v. MCDONOUGH

conclude “that it was absolutely clear that the Veteran did 

have a diagnosis of DVT.” Id., J.App’x at 115. 

On appeal, the Veterans Court affirmed the denial of 

CUE. Smith v. McDonough, No. 20-8633, 2022 WL 

1719119 (Vet. App. May 27, 2022) (“Veterans Court Decision”) (unreported). The Veterans Court agreed with 

Smith and the Board that the finding that Smith’s claim 

was not well-grounded was wrong, given the presence in 

1996 of evidence on both sides of the question. The Veterans Court also agreed that the Board in 1996 “should have 

allowed the claim to move forward.” Id. at *3. The Veterans Court nonetheless concluded that this error did not 

constitute CUE because the record was not “manifestly 

clear that the veteran had a current disability” at the time 

of the 1996 Board Decision. Id. Because Smith could not 

show that correcting the well-groundedness error “would 

have resulted in a grant of service connection for that condition,” he failed to make out a claim for CUE. Id. (citing 

King v. Shinseki, 26 Vet. App. 433, 441 (2014)). Smith appeals.

DISCUSSION

Smith argues that the Veterans Court legally erred in 

interpreting 38 C.F.R. § 20.1403 by limiting CUE-eligible 

errors to those that manifestly changed the outcome “with 

respect to the merits of the underlying claim” and, specifically, limiting CUE-eligible errors to those in which “but 

for an alleged error, service connection would have been 

awarded.” Veterans Court Decision, at *1, *3.

The Secretary first responds that we lack jurisdiction 

because the Veterans Court did not interpret the regulation 

or “elaborate[]” on the meaning of the statute or regulation. 

See Forshey v. Principi, 284 F.3d 1335, 1349 (Fed. Cir. 

2002) (en banc) (“[A]n interpretation of a statute or regulation occurs when its meaning is elaborated by the court.”), 

superseded on other grounds by statute, Pub. L. No. 107-

330, § 402(a), 116 Stat. 2820, 2832 (2002). Instead, the 

Case: 22-2169 Document: 38 Page: 4 Filed: 05/20/2024
SMITH v. MCDONOUGH 5

Secretary argues that the Veterans Court merely applied 

well-settled legal rules to a particular factual scenario and 

whether the Veterans Court correctly applied the regulation to the facts of this case falls outside our jurisdiction. 

On the merits, the Secretary argues that the Veterans 

Court correctly required Smith to show an error that manifestly changed the outcome of Smith’s claim for service 

connection.

I

We first consider our jurisdiction. Under 38 U.S.C.

§ 7292(c), this court has exclusive jurisdiction to review 

“any challenge to the validity of any statute or regulation 

or any interpretation thereof brought under this section.” 

This includes review of “all relevant questions of law” and 

“any regulation or any interpretation thereof (other than a 

determination as to a factual matter) that was relied upon” 

by the Veterans Court that is, inter alia, “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance 

with law.” Id. § 7292(d)(1). In cases that do not implicate 

constitutional rights, our review does not extend to factual 

determinations or to “a challenge to a law or regulation as 

applied to the facts of a particular case.” Id. § 7292(d)(2).

As noted above, the Secretary argues that the Veterans 

Court here merely applied the CUE regulation without interpretation. Smith responds that the Veterans Court did 

interpret 38 C.F.R. § 20.1403 by equating “manifestly different outcome” with “grant of service connection,” thus 

limiting the types of errors cognizable under the regulation. 

Here, the Veterans Court first stated that a CUE claim 

requires a claimant to “show that the error in question 

manifestly changed the outcome,” then added the interpretive gloss that the error must “manifestly change[] the outcome with respect to the merits of the underlying claim.” 

Veterans Court Decision, at *1 (emphasis added). It further interpreted that language as requiring a claimant to 

Case: 22-2169 Document: 38 Page: 5 Filed: 05/20/2024
6 SMITH v. MCDONOUGH

show that, “but for an alleged error, service connection 

would have been awarded.” Id. The Veterans Court then 

relied upon this standard to deny Smith’s CUE claim.

We consider the Veterans Court’s gloss to be an elaboration of the regulation. The correctness of that elaboration is, thus, a question of regulatory interpretation, over 

which we have jurisdiction under § 7292(d)(1). See Yates v. 

West, 213 F.3d 1372, 1374 (Fed. Cir. 2000) (holding that the 

question of whether clear and unmistakable error at the 

RO requires “a manifest error that would have changed the 

outcome of the decision . . . raises a challenge concerning 

the interpretation of the ‘clear and unmistakable error’ regulation that was relied on” by the Veterans Court).

We turn to the merits.

II

A

When a Board decision is not appealed, as the Board’s 

1996 Decision here, it ordinarily becomes “final,” and “not 

subject to review.” 38 C.F.R. § 20.1100. A limited statutory exception to the finality of a Board decision allows a 

collateral attack based on “clear and unmistakable error” 

(“CUE”). 38 U.S.C. § 7111. The relevant VA regulation 

sets the standard for CUE:

(a) General. 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.

. . . 

(c) Errors that constitute clear and unmistakable 

error. To warrant revision of a Board decision on 

the grounds of clear and unmistakable error, there 

Case: 22-2169 Document: 38 Page: 6 Filed: 05/20/2024
SMITH v. MCDONOUGH 7

must have been an error in the Board’s adjudication of the appeal which, had it not been made, 

would have manifestly changed the outcome when 

it was made. 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. § 20.1403(a), (c) (emphases added). The regulation also expressly excludes “[t]he Secretary’s failure to fulfill the duty to assist” as a basis for CUE. Id.

§ 20.1403(d)(2).

B

Smith contends that the Veterans Court incorrectly interpreted 38 C.F.R. § 20.1403 to require that but-for the error, the veteran would have been awarded service 

connection. See Veterans Court Decision at *1. Smith argues that the regulation does not limit the outcomes affected by CUE to changes to the ultimate determination of 

service connection. He contends that a change in the 

course of proceedings that may change the ultimate award 

of service connection may suffice as a manifest change in 

the outcome. Smith therefore argues that allowing his 

claim to proceed to a merits determination after triggering 

the VA’s duty to assist would have met the only test set

forth in the regulation. See Smith v. McDonough, No. 

2022-2169, Oral Argument at 4:25–4:40 (Fed. Cir. Mar. 8, 

2024) available at <https://oralarguments

.cafc.uscourts.gov/default.aspx?fl=222169_03082024.mp3> 

(last accessed May 15, 2024).

The Secretary disagrees. According to the Secretary—

and referring to the language of the regulation—an error 

that “manifestly changed the outcome” must have changed 

the “Board’s adjudication of the appeal.” The Secretary asserts that the Veterans Court here applied the correct legal 

standard in asking whether the 1996 Board’s error holding 

Smith’s claim to be not well-grounded would have “manifestly changed the outcome” of Smith’s claim for service 

Case: 22-2169 Document: 38 Page: 7 Filed: 05/20/2024
8 SMITH v. MCDONOUGH

connection. Veterans Court Decision at *2–3. Further, the 

Secretary argues that the Veterans Court was correct to 

cite to King, which cited and applied the standard in Bustos 

and § 20.1403 for its articulation of the “manifestly 

changed” outcome and “outcome determinative” test. 26 

Vet. App. at 437, 439–41.

We agree with the Secretary. For the reasons more 

fully set forth, infra, the “manifestly different” outcome 

standard of 38 C.F.R. § 20.1403 cannot be met by correcting an error that leads only to continued litigation with an 

uncertain result on the merits of the claim. We therefore 

conclude that the Veterans Court properly interpreted the 

regulation in affirming the 2020 Board’s Decision.

First, the regulation requires not just a manifestly different result, but an error “in the Board’s adjudication of 

the appeal” that would have “manifestly changed the outcome.” 38 C.F.R. § 20.1403(c). It would be a strained reading of the language of the regulation to interpret it to cover 

a situation in which the only thing that was changed was 

the procedural path to an adjudication that might remain 

unchanged.

Second, Smith’s argument here essentially mirrors the 

argument we rejected in Bustos. Bustos addressed the VA 

regulation governing CUE at the RO, but the holdings are 

equally applicable to the key language here: “manifestly 

change[] the outcome.” See Yates, 213 F.3d at 1375 (noting 

that the regulations at 38 C.F.R. § 20.1403 “are consistent 

with our holding in Bustos”). Smith’s briefing does not contest the applicability of Bustos to the standard for CUE at 

the Board or identify any dispositive difference between 

the regulation governing CUE at the Board and the regulation governing CUE at the RO at issue in Bustos.

In Bustos, we considered what effect an error must 

have on the outcome of a case in order for it to be considered 

clear and unmistakable error. 179 F.3d 1378 (Fed. Cir. 

1999). Bustos, an Army veteran, filed a claim for service 

Case: 22-2169 Document: 38 Page: 8 Filed: 05/20/2024
SMITH v. MCDONOUGH 9

connection for post-traumatic stress disorder (“PTSD”) and 

alcohol and substance abuse. Id. at 1379. He was initially 

denied service connection for PTSD and alcohol and substance abuse, the latter because of his prior history of such 

abuse. He eventually received a 100% disability rating for 

PTSD, but the VA maintained its denial of service connection for alcohol and substance abuse in a 1998 RO decision. 

Id. After the decision had become final, he brought a CUE 

claim, arguing that the RO erroneously failed to award entitlement to service connection for drug and alcohol abuse 

as secondary to PTSD and failed to consider certain evidence supporting his position. Id. The Veterans Court held 

that, “even if the premise of error is accepted”—that the RO 

erred and should have considered his entitlement to service 

connection for drug and alcohol abuse secondary to PTSD—

“if it is not absolutely clear that a different result would 

have ensued, the error is not CUE.” Id. at 1379. In 

Bustos’s case, the court held that even if the evidence had 

been considered, it would have “merely put the evidence in 

equipoise [and] would not have ‘manifestly changed’ the 

outcome of his original rating decision.” Id.

On appeal, Bustos argued that the Veterans Court applied too strict a standard for CUE by requiring a manifestly different result. Rather, he argued, CUE only 

requires a veteran to show that an RO error “might possibly change the outcome” and that the error “seriously affects the fairness, integrity, or public reputation of the 

proceedings.” Id. at 1380. This court held that this was 

not enough: “CUE must be outcome-determinative,” such 

that the error must have a “dispositive impact on the ultimate outcome” of the veteran’s claim. Id. at 1381 (“We 

therefore hold that, to prove the existence of CUE as set 

forth in § 3.105(a), the claimant must show that an outcome-determinative error occurred, that is, an error that 

would manifestly change the outcome of a prior decision.”); 

Yates, 213 F.3d at 1374–75 (same). Because the evidence 

of Smith’s entitlement to service connection for drug and 

Case: 22-2169 Document: 38 Page: 9 Filed: 05/20/2024
10 SMITH v. MCDONOUGH

alcohol abuse as secondary to PTSD was, at best, in equipoise (based on the Veterans Court’s holding), the RO’s error in failing to consider Bustos’s argument and evidence 

on that point was not “outcome-determinative” and therefore could not support CUE at the RO. Bustos, 179 F.3d at 

1380–81.

Similarly, here, Smith cannot support CUE by identifying the continuation of his claim as the “manifestly different outcome.” While allowing his claim to proceed would 

be a change in the course of proceedings that may lead to a 

change in the outcome, that is not enough. CUE requires 

that it would be “absolutely clear,” 38 C.F.R. § 20.1403(c),

that correcting the error would lead to a manifestly different outcome, not merely a potentially different outcome.

Third, the regulation expressly excludes the VA’s failure to fulfill the duty to assist from being the kind of “outcome” or “result” that can itself support CUE. As an 

example of an error that is not CUE, the regulation lists: 

“The Secretary’s failure to fulfill the duty to assist.” Id.

§ 20.1403(d)(2). Here, the only definitive effect of correcting the erroneous well-groundedness determination would 

have been to trigger the duty to assist. Because failing to 

fulfill the duty to assist is not an outcome-determinative 

error, neither is the failure to trigger the duty to assist.

CUE is a “very specific and rare kind of error.” 28 

C.F.R. § 20.1403(a). It is not intended to vindicate all mistakes. “The modifiers ‘clear’ and ‘unmistakable’ indicate 

that [CUE] is a narrow category excluding some forms of 

error cognizable in other contexts.” George v. McDonough, 

596 U.S. 740, 746 (2022). Whereas a direct appeal allows 

reversal or vacatur upon a showing of any harmful legal, 

factual, or procedural error, CUE is not intended to serve 

as an opportunity to continue litigation leading to an uncertain result. We hold that a revision or reversal based on 

CUE—as a collateral attack on an already final 

Case: 22-2169 Document: 38 Page: 10 Filed: 05/20/2024
SMITH v. MCDONOUGH 11

adjudication—requires an error that once corrected alters,

with absolute clarity, the merits outcome of a veteran’s 

claim. 

The Veterans Court in this case applied the correct legal standard for CUE. It required Smith to show, in addition to showing error in the 1996 Board’s Decision, that

“had the error not been made, the outcome would have been 

manifestly different.” Veterans Court Decision at *2 (citing 

George v. Wilkie, 32 Vet. App. 318, 323 (2020)). The substantive right Smith sought to vindicate was the right to 

service connection as of the 1996 Board decision. It was 

thus not error for the Veterans Court to require Smith to 

show that correcting the 1996 Board’s error would have 

compelled the conclusion “to which reasonable minds could 

not differ,” 38 C.F.R. § 20.1403(a), that Smith would have 

been awarded service connection.

CONCLUSION

For the foregoing reasons, the Veterans Court’s decision is affirmed.

AFFIRMED

COSTS

Each party shall bear its own costs.

Case: 22-2169 Document: 38 Page: 11 Filed: 05/20/2024