Board of Veterans' Appeals: Rules of PracticeRevision of Decisions on Grounds of Clear and Unmistakable Error

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AJ15

Board of Veterans' Appeals: Rules of Practice--Revision of

Decisions on Grounds of Clear and Unmistakable Error

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend the

Rules of Practice of the Board of Veterans' Appeals (Board) to

implement the provisions of section 1(b) of Pub. L.

[[Page 27535]]

105-111 (Nov. 21, 1997), which permits challenges to Board decisions on

the grounds of ``clear and unmistakable error'' (CUE). The amendments

would provide specific application procedures; establish decision

standards based on case law; and eliminate as duplicative the Board

Chairman's discretionary review under ``reconsideration'' on the basis

of obvious error. These changes are necessary to implement the new

statutory provisions, which permit a claimant to demand review by the

Board to determine whether CUE exists in an appellate decision

previously issued by the Board, with a right of review of such

determinations by the U.S. Court of Veterans Appeals.

DATES: Comments must be received on or before July 20, 1998.

ADDRESSES: Mail or hand-deliver written comments to: Director, Office

of Regulations Management (02D), Department of Veterans Affairs, 810

Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should

indicate that they are submitted in response to ``RIN 2900-AJ15.'' All

written comments will be available for public inspection at the above

address in the Office of Regulations Management, Room 1158, between the

hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Chief Counsel, Board

of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont

Avenue, NW, Washington, DC 20420, (202) 565-5978.

SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals (Board) is an

administrative body that decides appeals from denials of claims for

veterans' benefits. There are currently 60 Board members, who decide

35,000 to 40,000 such appeals per year.

This document proposes to amend the Board's Rules of Practice to

implement the provisions of section 1(b) of Pub. L. 105-111 (Nov. 21,

1997), which permits a claimant to demand review by the Board to

determine whether ``clear and unmistakable error'' (CUE) exists in an

appellate decision previously issued by the Board, with a right of

review of such determinations by the U.S. Court of Veterans Appeals.

The VA Appeals Process in General

The Secretary of Veterans Affairs decides all questions of law and

fact necessary to a decision under a law that affects the provision of

benefits by the Secretary to veterans, or the dependents or survivors

of veterans. 38 U.S.C. 511(a). The Secretary has delegated most of

these decisions to ``agencies of original jurisdiction'' (AOJs),

typically the 58 regional offices (ROs) maintained by the Department of

Veterans Affairs (VA). See 38 CFR 2.6(b) (delegation to Under Secretary

for Benefits).

Decisions under 38 U.S.C. 511(a) are subject to one review on

appeal to the Secretary. 38 U.S.C. 7104(a). Final decisions on those

appeals are made by the Board. Id. A decision by an AOJ that is not

appealed within one year becomes final, and can be reopened only with

``new and material evidence.'' 38 U.S.C. 5108, 7105(c).

The appeals process begins when a claimant files a ``notice of

disagreement,'' which must be filed within one year of the decision. 38

U.S.C. 7105 (a) and (b). The VA office that made the decision reviews

the claim and, if benefits are not granted, provides the claimant with

a ``statement of the case.'' Id. 7105(d)(1). The claimant then must

file a formal appeal with the Board. Id. 7105(d)(3). The Board decides

appeals on the entire record in the case. Id. 7104(a). The Board may

make a final decision--allowing or denying the appeal--or may remand

the matter to the AOJ for development of additional factual material.

38 CFR 19.9.

If an appellant does not agree with the Board's final decision, and

the notice of disagreement in the case was filed on or after November

18, 1988, the appellant has 120 days to appeal the Board's decision to

the U.S. Court of Veterans Appeals. 38 U.S.C. 7266(a); Pub. L. 100-687,

Div. A, Sec. 402, reprinted at 38 U.S.C. 7251 note. (As enacted, the

Veterans' Judicial Review Act, which established the Court of Veterans

Appeals, permitted judicial review of Board decisions only in cases in

which a notice of disagreement was filed on or after the effective date

of the Act, i.e., November 18, 1988.)

Other Remedies

Once a VA decision has become final--whether by completion or

abandonment of the appeals process described above--there are,

generally, three ways to revive the claim.

First, if a claimant submits new and material evidence, VA will

reopen and reconsider the claim. 38 U.S.C. 5108. Such claims are

subject to the full range of appellate procedures described above.

Second, if a claim decision is final because there was never a

formal appeal filed with the Board, and the determination was made by

an RO, a claimant may allege that the decision was the result of CUE.

38 CFR 3.105(a). Such claims are subject to the full range of appellate

procedures described above. Russell v. Principi, 3 Vet. App. 310

(1992). However, prior to enactment of Pub. L. 105-111, a final

unappealed RO decision that is subsequently reopened with new and

material evidence and adjudicated on the merits by the Board could not

later be the subject of a claim of CUE. Donovan v. Gober, 10 Vet. App.

404 (1997).

Finally, if there has been a final Board decision on a claim, an

appellant may request that the Chairman of the Board order

``reconsideration'' under 38 U.S.C. 7103. If the Chairman orders

reconsideration, the prior decision is vacated, and a panel of Board

members makes a new decision based on the entire record. The panel

decision is subject to appeal to the Court of Veterans Appeals only if

the notice of disagreement filed in connection with the original matter

was filed on or after November 18, 1988. The Chairman's decision not to

grant reconsideration is not subject to appeal independently of the

underlying Board decision. Mayer v. Brown, 37 F.3d 618, 620 & n.3 (Fed.

Cir. 1994) (holding that there was no jurisdiction to review the

Chairman's denial of a motion for reconsideration absent jurisdiction

over the underlying Board decision, but reserving judgment on the issue

of whether the Chairman's decision can ever be subject to judicial

review).

Board decisions are not subject to a CUE challenge under 38 CFR

3.105(a). Smith (William) v. Brown, 35 F.3d 1516, 1521 (Fed. Cir.

1994). Further, unappealed RO decisions can be ``subsumed'' in

subsequent Board decisions, so that the RO decisions are no longer

subject to the review otherwise available under 38 CFR 3.105(a).

Donovan v. Gober, 10 Vet. App. 404 (1997).

``Clear and Unmistakable Error''

The term ``clear and unmistakable error'' originated in veterans

regulations some 70 years ago, see generally Smith (William) v. Brown,

35 F.3d 1516, 1524-25 (Fed. Cir. 1994), and is now incorporated in VA

regulations governing VA RO determinations. 38 CFR 3.105(a). The term

has been interpreted by the Court of Veterans Appeals over the past

several years.

CUE is a very specific and rare kind of error. Fugo v. Brown, 6

Vet. App. 40, 43 (1993). 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. Fugo, 6 Vet.

App. at 43.

A determination that there was CUE must be based on the record and

the law

[[Page 27536]]

that existed at the time of the prior decision. Russell v. Principi, 3

Vet. App. 310, 314 (1992). Either the correct facts, as they were known

at the time, were not before the adjudicator or the statutory or

regulatory provisions extant at the time were incorrectly applied.

Russell, 3 Vet. App at 313. With respect to Board decisions issued on

or after July 21, 1992, the Court of Veterans Appeals has held that

documents which were actually in VA's possession--even though not

physically before the adjudicator--are constructively a part of the

record. Bell v. Derwinski, 2 Vet. App. 611 (1992); Damrel v. Brown, 6

Vet. App. 242, 245-46 (1994).

In order for there to be a valid claim of CUE, there must have been

an error in the prior adjudication of the appeal which, had it not been

made, would have manifestly changed the outcome at the time it was

made. Russell, 3 Vet. App. at 313. Thus, 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 clear and

unmistakable. Fugo, 6 Vet. App. at 43-44.

A new medical diagnosis that ``corrects'' an earlier diagnosis

ruled on by previous adjudicators is the kind of ``error'' that could

not be considered an error in the original adjudication. Russell, 3

Vet. App. at 314. A claim of CUE that asserts no more than a

disagreement as to how the facts were weighed or evaluated is

insufficient. Russell, 3 Vet. App. at 313. Mere allegations of failure

to follow regulations or failure to give due process, or any other

general, non-specific claims of error, are insufficient to raise a

claim of CUE. Fugo, 6 Vet. App. at 44. An allegation that the Secretary

did not fulfill the duty to assist is insufficient to raise the issue

of CUE. E.g., Crippen v. Brown, 9 Vet. App. 412, 418 (1996).

Once there is a final decision on the issue of CUE because the RO

decision was not timely appealed, or because a Board decision not to

revise or amend the original RO decision was not appealed, or because

the Court of Veterans Appeals has rendered a decision on the issue in

that particular case, that particular claim of CUE may not be raised

again. Russell, 3 Vet. App. at 315.

The ``benefit of the doubt'' rule of 38 U.S.C. 5107(b) does not

apply to determinations as to whether there was CUE. Russell, 3 Vet.

App. at 314.

``Two Tracks'' for CUE Claims

The Court of Veterans Appeals has held that it has jurisdiction to

review claims of CUE with respect to RO determinations based on the

regulatory right assigned in 38 CFR 3.105(a). Russell v. Principi, 3

Vet. App. 310 (1992).

However, the CUE challenge available under 38 CFR 3.105(a) does not

apply to Board decisions. Smith (William) v. Brown, 35 F.3d 1516, 1521

(Fed. Cir. 1994); Wright v. Brown, 9 Vet. App. 300, 303-04 (1996).

Because an RO decision appealed to the Board is ``subsumed'' in a Board

decision on the merits, such an RO decision would no longer be subject

to a CUE challenge. Donovan v. Gober, 10 Vet. App. 404 (1997). The

Court has held that even unappealed RO decisions are ``subsumed''--and

thus not subject to CUE challenges--if such claims are later reopened

and decided on the merits by the Board. Chisem v. Gober, 10 Vet. App.

526 (1997).

The Effect of the Legislation

Section 1(b) of Pub. L. 105-111 changed existing law by providing

that a decision by the Board is subject to revision on the grounds of

CUE. The statute provides that such review may be instituted by the

Board on the Board's own motion or upon request of the claimant, and

that such a request may be made at any time after the Board decision is

made. The Board is to decide all such requests on the merits, without

referral to any adjudicative or hearing official acting on behalf of

the Secretary.

The statute also provides that, notwithstanding the notice of

disagreement requirements for judicial review (described earlier in

this document), judicial review is available with respect to any Board

decision on a claim alleging that a previous determination of the Board

was the product of CUE if that claim is filed after, or was pending

before VA, the Court of Veterans Appeals, the Court of Appeals for the

Federal Circuit, or the Supreme Court on the date of the enactment of

the Act (November 21, 1997).

The legislative history of H.R. 1090, 105th Congress, which became

Pub. L. 105-111, indicates that the Congress expected the Department

would implement section 1(b) of the bill in accordance with current

definitions of CUE. H.R. Rep. No. 52, 105th Cong., 1st Sess. 3 (1997)

(report of House Committee on Veterans' Affairs on H.R. 1090) (``Given

the Court's clear guidance on this issue [of CUE], it would seem that

the Board could adopt procedural rules consistent with this guidance to

make consideration of appeals raising clear and unmistakable error less

burdensome''); 143 Cong. Rec. 1567, 1568 (daily ed. Apr. 16, 1997)

(remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House

passage) (``The bill does not alter the standard for evaluation of

claims of clear and unmistakable error'').

Implementing Regulations

The proposed regulations restate statutory provisions, restate

legal standards reflecting court decisions, and establish procedures

for requesting revision of a Board decision.

The proposed regulations would also eliminate the use of the

Board's reconsideration process for challenges based on ``obvious

error,'' 38 CFR 20.1000(a), while continuing that process based on (1)

the discovery of new and material evidence in the form of relevant

records or reports of the service department concerned, or (2) an

allegation that an allowance of benefits by the Board has been

materially influenced by false or fraudulent evidence submitted by or

on behalf of the appellant. Since the ``obvious error of fact or law''

standard of current 38 CFR 20.1000(a) is the same standard as that of

CUE, Smith (William) v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994), and

since the new remedy under Pub. L. 105-111 provides for a Board

decision and judicial review, there is no longer any need--particularly

in light of the Board's limited resources--for what is a duplicative

remedy.

Accordingly, the proposed regulations would amend 38 CFR 20.1000,

relating to motions for reconsideration, by deleting paragraph (a),

which provides that obvious error of fact or law is a basis for

reconsideration. The proposed regulations would also amend 38 CFR

20.1001(a), relating to filing motions for reconsideration, to

eliminate a reference to allegations of obvious errors of fact or law.

The proposed regulations would create a new subpart O in part 20 of

title 38, Code of Federal Regulations, devoted specifically to revision

of Board decisions on grounds of CUE.

Proposed Rule 1400 (38 CFR 20.1400) would begin the review process

with a motion, either by a party to the decision being challenged or by

the Board. In addition, because it would be inappropriate for an

inferior tribunal to review the actions of a superior, Smith (William)

v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994); Duran v. Brown, 7 Vet.

App. 216, 224 (1994), the rule would provide that a Board decision on

an issue decided by a court of competent jurisdiction on appeal is not

subject to revision on the grounds of clear and unmistakable error.

Proposed Rule 1401 (38 CFR 20.1401) would define the terms

``issue'' and

[[Page 27537]]

``party'' for purposes of the proposed subpart. Generally, the term

``issue'' would be defined as a matter upon which the Board made a

final decision (other than a decision under the proposed subpart) which

was appealable under Chapter 72 of title 38, United States Code, or

which would have been appealable if the Notice of Disagreement with

respect to such matter had been received by the agency of original

jurisdiction on or after November 18, 1988. The purposes of this

definition are to clarify (1) that only final, outcome-determinative

decisions of the Board are subject to revision on the grounds of CUE,

so as to avoid, in the interests of judicial economy, atomization of

Board decisions into myriad component parts; and (2) the scope of the

finality referred to in proposed Rule 1409(c) (38 CFR 20.1409(c)),

discussed later in this document. For example, since a Board remand is

in the nature of a preliminary order and does not constitute a final

Board decision, Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), aff'd,

102 F.3d 1236 (Fed. Cir. 1996), cert. denied, 117 S. Ct. 2478 (1997);

38 CFR 20.1100(b), it is not appealable under Chapter 72 of title 38,

United States Code, and would not be subject to revision on the grounds

of CUE. Similarly, since the jurisdiction of the Court of Veterans

Appeals is limited to ``decisions'' of the Board, 38 U.S.C. 7252(a),

individual findings of fact or conclusions of law, 38 U.S.C.

7104(d)(1), would not be subject to revision on the grounds of CUE

except as part of such revision of the decision they support. At the

same time, as discussed in connection with proposed Rule 1409 later in

this document, once there is a final decision on a motion under this

proposed subpart, the prior Board decision on the underlying ``issue''

would no longer be subject to revision on grounds of CUE.

Proposed Rule 1401 would also define ``party'' as any party to the

Board proceeding that resulted in the final Board decision which is the

subject of a motion under the proposed subpart. Because 38 U.S.C.

7111(c), as added by Pub. L. 105-111, limits the right to initiate CUE

review to the Board and to claimants, the term would not include

officials authorized to file administrative appeals pursuant to

Sec. 19.51 of this title.

Proposed Rule 1402 (38 CFR 20.1402) would clarify that motions

under proposed subpart O are not appeals and, accordingly, not subject

to the provisions of parts 19 and 20 of Chapter I, Title 38, Code of

Federal Regulations, to the extent those provisions relate to the

processing and disposition of appeals.

Proposed Rule 1403 (38 CFR 20.1403) would set forth the standards

for what constitutes CUE, as well as the record to be reviewed. The

various standards and the specific examples of situations that are not

CUE are drawn directly from court opinions cited earlier in this

document under the heading ``Clear and Unmistakable Error.'' In

addition, the rule would provide that CUE does not include the

otherwise correct application of a statute or regulation where,

subsequent to the Board decision challenged, there has been a change in

the interpretation of the statute or regulation. This latter provision

is borrowed in part from 38 CFR 3.105, discussed earlier in this

document, relating to CUE in RO decisions. An interpretation of a

statute or regulation could, in light of future interpretations--

whether by the General Counsel or a court--be viewed as erroneous. That

would not, however, be the kind of error required for CUE, i.e., an

error about which reasonable persons could not differ. See VAOPGCPREC

25-95, 61 FR 10,063, 10,065 (1996) (holding that the Board's

application of a subsequently invalidated regulation in a decision does

not constitute obvious error or provide a basis for reconsideration of

the decision).

Proposed Rule 1404 (38 CFR 20.1404) would establish filing and

pleading requirements for motions for revision of a Board decision

based on CUE. The rule would require specific pleading of the error,

and provide that motions which fail to do so would be denied, although

motions that merely fail to identify the claimant, the Board decision

challenged, or the issue(s) being challenged, or which are unsigned,

would be dismissed without prejudice to a proper filing. The proposed

rule would also provide that a request transmitted to the Board by the

Secretary pursuant to 38 U.S.C. 7111(f) (generally relating to claims

for CUE filed with the Secretary) would be treated as a motion filed

under this rule.

Proposed Rule 1405 (38 CFR 20.1405) would provide that motions to

revise Board decisions on the grounds of CUE would be docketed in the

order received and be assigned in accordance with the appellate

assignment procedures in 38 CFR 19.3. The proposed rule, following the

current standards applicable to reconsideration decisions, would

prohibit assignment of the motion to any Board member who participated

in the decision which is the subject of the motion. 38 U.S.C.

7103(b)(2); 38 CFR 19.11(c). Since a CUE determination must be made on

the facts before the Board at the time the original decision was made,

the rule would also provide that no new evidence would be considered in

connection with the motion (although material included on the basis of

proposed Rule 1403(b)(2), discussed above, would not be considered new

evidence) and that the Board may, for good cause shown, grant a request

for a hearing for the purpose of argument only. Nevertheless, the

proposed rule would permit the Board, subject to the limitation on new

evidence, to use the various AOJs to ensure completeness of the record.

The Board would also be permitted to seek the opinion of the General

Counsel, with notice to the party to the decision and an opportunity to

respond. In accordance with the specific requirements of the new

statute, the rule would prohibit referral of the motion to the AOJ or

any hearing officer acting on behalf of the Secretary for the purpose

of making a decision. Finally, in order to facilitate judicial review,

the rule would require decisions on these motions to include separately

stated findings of fact and conclusions of law, and the reasons and

bases for those findings and conclusions. Cf. 38 U.S.C. 7104(d); 38 CFR

19.7(b) (``reasons and bases'' requirement for appellate decisions).

Proposed Rule 1406 (38 CFR 20.1406), following the new statute,

would provide that a decision of the Board that revises a prior Board

decision on the grounds of CUE has the same effect as if the decision

had been made on the date of the prior decision. The proposed rule

would also provide that decisions that discontinue or reduce benefits

would be subject to the laws and regulations governing such

discontinuances or reductions based solely on administrative error or

errors in judgment. See generally 38 U.S.C. 5112(b)(10) (reduction or

discontinuance on such bases effective on the date of last payment).

Proposed Rule 1407 (38 CFR 20.1407) would provide special

procedural rules in those cases where the Board, on its own motion,

reviews a prior decision on the grounds of CUE. The rule would provide

for notification to the party to the prior Board decision and that

party's representative, with a period of 60 days to file a brief or

argument. Nevertheless, failure of a party to so respond would not

affect the finality of the Board's decision on the motion.

Proposed Rule 1408 (38 CFR 20.1408) would provide special rules in

the case of challenges to Board decisions in simultaneously contested

claims. See 38 U.S.C. 7105A. Generally, the rule would require notice

to all parties to such

[[Page 27538]]

Board decisions, with limited time for non-moving parties to respond.

Proposed Rule 1409 (38 CFR 20.1409), in accordance with the

discussion under ``Clear and Unmistakable Error'' earlier in this

document, would provide that, once there is a final decision on a

motion under the proposed subpart--whether initiated by a party or by

the Board--with respect to a particular issue, the prior Board decision

on that issue would no longer be subject to revision on the grounds of

CUE and that subsequent motions on such decisions would be dismissed

with prejudice. For example, if a party challenged a decision on

service connection for failing to apply the proper diagnostic code in

the Schedule for Rating Disabilities, 38 CFR part 4, and the Board

denied the motion, a subsequent motion which alleged that the Board

failed to apply the presumption of sound condition at the time of entry

into service, 38 U.S.C. 1111, would be dismissed with prejudice. It

would be clearly important that a moving party carefully determine all

possible bases for CUE before he or she files a motion under the

proposed subpart. Since the effect of a successful challenge is the

same no matter when the motion is filed, i.e., the revision has the

same effect as if the decision had been made on the date of the earlier

decision, there is no particular filing date that must be observed in

order to maximize potential benefits. At the same time, because, as the

court has observed, CUE is a ``very specific and rare kind of error,''

Fugo v. Brown, 6 Vet. App. 40, 43 (1993), and because the availability

of a CUE challenge does not mean that the issue may be ``endlessly

reviewed,'' Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc),

we believe that one challenge per decision on an issue is justified not

only as a proper statement of the law, but also as a rule serving the

interests of judicial economy. The rule would also clarify that a

dismissal without prejudice under proposed Rule 1404(a) or a referral

to ensure completeness of the record under proposed Rule 1405(e) would

not be a final decision of the Board.

Proposed Rule 1410 (38 CFR 20.1410) would provide that, if a Board

decision is appealed to a court of competent jurisdiction, the Board

will stay any consideration of a motion under this subpart with respect

to that Board decision. Generally, once a case has been certified for

appeal to the court on a particular issue, the Board no longer has

jurisdiction. Cerullo v. Derwinski, 1 Vet. App. 195 (1991). Processing

of the motion under proposed subpart O would continue upon conclusion

of the court appeal or an appropriate order from the court.

Proposed Rule 1411 (38 CFR 20.1411) would set forth the

relationship between motions under proposed subpart O and certain other

statutes. First, in accordance with the discussion under ``Clear and

Unmistakable Error'' earlier in this document, the rule would provide

that the ``benefit of the doubt'' rule of 38 U.S.C. 5107(b) would not

apply to determinations as to whether there was CUE. Second, because

review under this proposed subpart is limited to the evidence of record

at the time of the Board decision challenge, and because a motion under

this subpart would be a collateral challenge to a Board decision rather

than a ``claim'' for benefits, cf. Duran v. Brown, 7 Vet. App. 216,

223-24 (1994) (claim of CUE is a collateral attack on a prior final VA

decision), the rule would also provide that a motion under this subpart

is not a claim subject to reopening under 38 U.S.C. 5108 (relating to

reopening claims on the grounds of new and material evidence). Third,

because a motion under proposed subpart O is a statutory challenge to

an otherwise final Board decision rather than an ``application for

benefits,'' the rule would provide that the notification requirements

in 38 U.S.C. 5103(a) (relating to applications for benefits) would not

apply to such motions. Finally, because a motion would not be a claim

for benefits, and because the notion of a ``well-grounded claim'' would

be irrelevant to a motion under proposed subpart O, the rule would

provide that the ``duty to assist'' requirements in 38 U.S.C. 5107(a)

(relating to VA's duty following the filing of a well-grounded claim)

would not apply to such motions.

Attorney Fees

The proposed regulations would also add a new paragraph (4) to Rule

609(c) (38 CFR 20.609(c), relating to payment of a representative's

fees in connection with VA proceedings), which would provide that the

term ``issue'' referred to in Rule 609(c) would have the same meaning

as that term in proposed Rule 1401(a), discussed earlier in this

document.

Generally, attorneys may charge a fee in connection with VA

proceedings only if (1) there has been a final Board decision on the

issue (or issues) involved; (2) the Notice of Disagreement (discussed

earlier in this document) which preceded the Board decision with

respect to the issue, or issues, involved was received on or after

November 18, 1988; and (3) the attorney was retained within one year of

the relevant Board decision. 38 U.S.C. 5904(c)(1); 38 CFR 20.609(c).

In the case of a motion under proposed subpart O, it is our view

that the issue for purposes of Rule 609 is the issue associated with

the Board decision which is being challenged in the motion under

proposed subpart O. Accordingly, an attorney could charge a fee in

connection with a motion under proposed subpart O if (1) the challenged

Board decision was preceded by a notice of disagreement received by the

AOJ on or after November 18, 1988, and (2) the attorney was retained

not later than one year following the date of the challenged Board

decision.

We note that proposed Rule 609(c)(4) would not affect the ability

of an attorney to charge a fee in connection with proceedings before a

court, because such charges are not subject to VA's jurisdiction.

The Secretary hereby certifies that this proposed rule would not

have a significant economic impact on a substantial number of small

entities as they are defined in the Regulatory Flexibility Act, 5

U.S.C. 601-612. This rule would affect only the processing of claims by

VA and would not affect small businesses. Therefore, pursuant to 5

U.S.C. 605(b), this proposed rule is exempt from the initial and final

regulatory flexibility analyses requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 19

Administrative practice and procedure, Claims, Veterans.

Approved: May 11, 1998.

Togo D. West, Jr.,

Secretary.

For the reasons set out in the preamble, 38 CFR part 20 is proposed

to be amended as set forth below:

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

1. The authority citation for part 20 continues to read as follows:

Authority: 38 U.S.C. 501(a).

2. In subpart G, Sec. 20.609, paragraph (c)(4) is added to read as

follows:

Sec. 20.609. Rule 609. Payment of representative's fees in proceedings

before Department of Veterans Affairs field personnel and before the

Board of Veterans' Appeals.

* * * * *

(c) * * *

(4) For the purposes of this section, in the case of a motion under

Subpart O of this part (relating to requests for revision of prior

Board decisions on the grounds of clear and unmistakable

[[Page 27539]]

error), the ``issue'' referred to in this paragraph (c) shall have the

same meaning as ``issue'' in Rule 1401(a) (Sec. 20.1401(a) of this

part).

* * * * *

Sec. 20.1000 [Amended]

3. In subpart K, Sec. 20.1000 is amended by removing paragraph (a)

and redesignating paragraphs (b) and (c) as (a) and (b), respectively.

Sec. 20.1001 [Amended]

4. In subpart K, Sec. 20.1001(a), the second sentence is amended by

removing ``alleged obvious error, or errors, of fact or law in the

applicable decision, or decisions, of the Board or other appropriate''.

5. A new subpart O is added to read as follows:

Subpart O--Revision of Decisions on Grounds of Clear and Unmistakable

Error

Sec.

20.1400 Rule 1400. Motions to revise Board decisions.

20.1401 Rule 1401. Definitions.

20.1402 Rule 1402. Inapplicability of other rules.

20.1403 Rule 1403. What constitutes clear and unmistakable error;

what does not.

20.1404 Rule 1404. Filing and pleading requirements.

20.1405 Rule 1405. Disposition.

20.1406 Rule 1406. Effect of revision.

20.1407 Rule 1407. Motions by the Board.

20.1408 Rule 1408. Special rules for simultaneously contested

claims.

20.1409 Rule 1409. Finality and appeal.

20.1410 Rule 1410. Stays pending court action.

20.1411 Rule 1411. Relationship to other statutes.

Subpart O--Revision of Decisions on Grounds of Clear and

Unmistakable Error

Sec. 20.1400 Rule 1400. Motions to revise Board decisions.

(a) Review to determine whether clear and unmistakable error exists

in a final Board decision may be initiated by the Board, on its own

motion, or by a party to that decision (as the term ``party'' is

defined in Rule 1401(b) (Sec. 20.1401(b) of this part) in accordance

with Rule 1404 (Sec. 20.1404 of this part).

(b) A Board decision on an issue decided by a court of competent

jurisdiction on appeal is not subject to revision on the grounds of

clear and unmistakable error.

(Authority: 38 U.S.C. 501(a), 7111)

Sec. 20.1401 Rule 1401. Definitions.

(a) Issue. Unless otherwise specified, the term ``issue'' in this

subpart means a matter upon which the Board made a final decision

(other than a decision under this subpart) which was appealable under

Chapter 72 of title 38, United States Code, or which would have been so

appealable if the Notice of Disagreement with respect to such matter

had been received by the agency of original jurisdiction on or after

November 18, 1988.

(b) Party. As used in this subpart, the term ``party'' means any

party to the proceeding before the Board that resulted in the final

Board decision which is the subject of a motion under this subpart, but

does not include officials authorized to file administrative appeals

pursuant to Sec. 19.51 of this title.

(Authority: 38 U.S.C. 501(a), 7104(a))

Sec. 20.1402 Rule 1402. Inapplicability of other rules.

Motions filed under this subpart are not appeals and, except as

otherwise provided, are not subject to the provisions of parts 19 or 20

of this chapter which relate to the processing and disposition of

appeals.

Sec. 20.1403 Rule 1403. What constitutes clear and unmistakable error;

what does not.

(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. Generally, either the

correct facts, as they were known at the time, were not before the

Board, or the statutory and regulatory provisions extant at the time

were incorrectly applied.

(b) Record to be reviewed.--(1) General. Review for clear and

unmistakable error in a prior Board decision must be based on the

record and the law that existed when that decision was made.

(2) Special rule for Board decisions issued on or after July 21,

1992. For a Board decision issued on or after July 21, 1992, the record

that existed when that decision was made includes relevant documents

possessed by the Department of Veterans Affairs not later than 90 days

before such record was transferred to the Board for review in reaching

that decision, provided that the documents could reasonably be expected

to be part of the record.

(c) Errors that constitute clear and unmistakable error. To warrant

revision of a Board decision on the grounds of clear and unmistakable

error, there 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.

(d) Examples of situations that are not clear and unmistakable

error.--(1) Changed diagnosis. A new medical diagnosis that

``corrects'' an earlier diagnosis considered in a Board decision.

(2) Duty to assist. The Secretary's failure to fulfill the duty to

assist.

(3) Evaluation of evidence. A disagreement as to how the facts were

weighed or evaluated.

(e) Change in interpretation. Clear and unmistakable error does not

include the otherwise correct application of a statute or regulation

where, subsequent to the Board decision challenged, there has been a

change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

Sec. 20.1404 Rule 1404. Filing and pleading requirements.

(a) General. A motion for revision of a decision based on clear and

unmistakable error must be in writing, and must be signed by the moving

party or that party's representative. The motion must include the name

of the veteran; the name of the moving party if other than the veteran;

the applicable Department of Veterans Affairs file number; and the date

of the Board of Veterans' Appeals decision to which the motion relates.

If the applicable decision involved more than one issue on appeal, the

motion must identify the specific issue, or issues, to which the motion

pertains. Motions which fail to comply with the requirements set forth

in this paragraph shall be dismissed without prejudice to refiling

under this subpart.

(b) Specific allegations required. The motion must set forth

clearly and specifically the alleged clear and unmistakable error, or

errors, of fact or law in the Board decision, the legal or factual

basis for such allegations, and why the result would have been

manifestly different but for the alleged error. Non-specific

allegations of failure to follow regulations or failure to give due

process, or any other general, non-specific allegations of error, are

insufficient to satisfy the requirement of the previous sentence.

Motions which fail to comply with the requirements set forth in this

paragraph shall be denied.

(c) Filing. A motion for revision of a decision based on clear and

unmistakable error may be filed at any time. Such motions should be

filed at the following address: Director, Administrative Service (014),

Board of

[[Page 27540]]

Veterans' Appeals, 810 Vermont Avenue, NW, Washington, DC 20420.

(d) Requests not filed at the Board. A request for revision

transmitted to the Board by the Secretary pursuant to 38 U.S.C. 7111(f)

(relating to requests for revision filed with the Secretary other than

at the Board) shall be treated as if a motion had been filed pursuant

to paragraph (d) of this section.

(Authority: 38 U.S.C. 501(a), 7111)

Sec. 20.1405 Rule 1405. Disposition.

(a) Docketing and assignment. Motions under this subpart will be

docketed in the order received and will be assigned in accordance with

Sec. 19.3 of this part (relating to assignment of proceedings). Where

an appeal is pending on the same underlying issue at the time the

motion is received, the motion and the appeal may be consolidated under

the same docket number and disposed of as part of the same proceeding.

A motion may not be assigned to any Member who participated in the

decision that is the subject of the motion. If a motion is assigned to

a panel, the decision will be by a majority vote of the panel Members.

(b) Evidence. No new evidence will be considered in connection with

the disposition of the motion. Material included in the record on the

basis of Rule 1403(b)(2) (Sec. 20.1403(b)(2) of this part) is not

considered new evidence.

(c) Hearing.--(1) Availability. The Board may, for good cause

shown, grant a request for a hearing for the purpose of argument. No

testimony or other evidence will be admitted in connection with such a

hearing. The determination as to whether good cause has been shown

shall be made by the member or panel to whom the motion is assigned.

(2) Submission of requests. Requests for such a hearing shall be

submitted to the following address: Director, Administrative Service

(014), Board of Veterans' Appeals, 810 Vermont Avenue, NW, Washington,

DC 20420.

(d) Decision to be by the Board. The decision on a motion under

this subpart shall be made by the Board. There shall be no referral of

the matter to any adjudicative or hearing official acting on behalf of

the Secretary for the purpose of deciding the motion.

(e) Referral to ensure completeness of the record. Subject to the

provisions of paragraph (b) of this section, the Board may use the

various agencies of original jurisdiction to ensure completeness of the

record in connection with a motion under this subpart.

(f) General Counsel opinions. The Board may secure opinions of the

General Counsel in connection with a motion under this subpart. In such

cases, the Board will notify the party and his or her representative,

if any. When the opinion is received by the Board, a copy of the

opinion will be furnished to the party's representative or, subject to

the limitations provided in 38 U.S.C. 5701(b)(1), to the party if there

is no representative. A period of 60 days from the date of mailing of a

copy of the opinion will be allowed for response. The date of mailing

will be presumed to be the same as the date of the letter or memorandum

which accompanies the copy of the opinion for purposes of determining

whether a response was timely filed.

(g) Decision. The decision of the Board on a motion will be in

writing. The decision will include separately stated findings of fact

and conclusions of law on all material questions of fact and law

presented on the record, the reasons or bases for those findings and

conclusions, and an order granting or denying the motion.

(Authority: 38 U.S.C. 501(a), 7104(d), 7111)

Sec. 20.1406 Rule 1406. Effect of revision

A decision of the Board that revises a prior Board decision on the

grounds of clear and unmistakable error has the same effect as if the

decision had been made on the date of the prior decision. Revision of a

prior Board decision under this subpart that results in the

discontinuance or reduction of benefits is subject to laws and

regulations governing the reduction or discontinuance of benefits by

reason of erroneous award based solely on administrative error or

errors in judgment.

(Authority: 38 U.S.C. 7111(b)

Sec. 20.1407 Rule 1407. Motions by the Board

If the Board undertakes, on its own motion, a review pursuant to

this subpart, the party to that decision and that party's

representative (if any) will be notified of such motion and provided an

adequate summary thereof and, if applicable, outlining any proposed

discontinuance or reduction in benefits that would result from revision

of the Board's prior decision. They will be allowed a period of 60 days

to file a brief or argument in answer. The failure of a party to so

respond does not affect the finality of the Board's decision on the

motion.

(Authority: 38 U.S.C. 501(a), 7111)

Sec. 20.1408 Rule 1408. Special rules for simultaneously contested

claims.

In the case of a motion under this subpart to revise a final Board

decision in a simultaneously contested claim, as that term is used in

Rule 3(o) (Sec. 20.3(o) of this part), a copy of such motion shall, to

the extent practicable, be sent to all other contesting parties. Other

parties have a period of 30 days from the date of mailing of the copy

of the motion to file a brief or argument in answer. The date of

mailing of the copy will be presumed to be the same as the date of the

letter which accompanies the copy. Notices in simultaneously contested

claims will be forwarded to the last address of record of the parties

concerned and such action will constitute sufficient evidence of

notice.

(Authority: 38 U.S.C. 501(a))

Sec. 20.1409 Rule 1409. Finality and appeal.

(a) A decision on a motion filed by a party or initiated by the

Board pursuant to this subpart will be stamped with the date of mailing

on the face of the decision, and is final on such date. The party and

his or her representative, if any, will be provided with copies of the

decision.

(b) For purposes of this section, a dismissal without prejudice

under Rule 1404(a) (Sec. 20.1404(a) of this part) or a referral under

Rule 1405(e) is not a final decision of the Board.

(c) Once there is a final decision on a motion under this subpart

relating to a prior Board decision on an issue, that prior Board

decision on that issue is no longer subject to revision on the grounds

of clear and unmistakable error. Subsequent motions relating to that

prior Board decision on that issue shall be dismissed with prejudice.

(d) Chapter 72 of title 38, United States Code (relating to

judicial review), applies with respect to final decisions on motions

filed by a party or initiated by the Board pursuant to this subpart.

(Authority: 38 U.S.C. 501(a); Pub. L. 105-111)

Sec. 20.1410 Rule 1410. Stays pending court action.

The Board will stay its consideration of a motion under this

subpart upon receiving notice that the Board decision that is the

subject of the motion has been appealed to a court of competent

jurisdiction until the appeal has been concluded or the court has

issued an order permitting, or directing, the Board to proceed with the

motion.

(Authority: 38 U.S.C. 501(a))

Sec. 20.1411 Rule 1411. Relationship to other statutes.

(a) The ``benefit of the doubt'' rule of 38 U.S.C. 5107(b) does not

apply to the Board's decision, on a motion under this subpart, as to

whether there was clear and unmistakable error in a prior Board

decision.

[[Page 27541]]

(b) A motion under this subpart is not a claim subject to reopening

under 38 U.S.C. 5108 (relating to reopening claims on the grounds of

new and material evidence).

(c) A motion under this subpart is not an application for benefits

subject to any duty associated with 38 U.S.C. 5103(a) (relating to

applications for benefits).

(d) A motion under this subpart is not a claim for benefits subject

to the requirements and duties associated with 38 U.S.C. 5107(a)

(requiring ``well-grounded'' claims and imposing a duty to assist).

(Authority: 38 U.S.C. 501(a))

[FR Doc. 98-13197 Filed 5-18-98; 8:45 am]

BILLING CODE 8320-01-P