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: Final rule.

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SUMMARY: This document amends the Rules of Practice of the Board of

Veterans' Appeals (Board) to implement the provisions of section 1(b)

of Pub. L. No. 105-111 (Nov. 21, 1997), which permit challenges to

Board decisions on the grounds of ``clear and unmistakable error''

(CUE). The amendments provide specific application procedures and

establish decision standards based on case law. These changes 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: Effective Date: February 12, 1999.

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.

On May 19, 1998, the Department of Veterans Affairs (VA) published

a notice of proposed rulemaking (NPRM) in the Federal Register. 63 FR

27534. We proposed to implement the provisions of section 1(b) of Pub.

L. 105-111 (Nov. 21, 1997), which permits challenges to decisions of

the Board of Veterans' Appeals (Board) on the grounds of ``clear and

unmistakable error'' (CUE).

The public comment period ended on July 20, 1998. VA received 5

comments: 3 from veterans service organizations; one from a consortium

of organizations, including veterans service organizations; and one

from an individual. These comments are discussed below.

Based on the rationale set forth in the proposed rule and in this

document, we adopt the provisions of the proposed rule as a final rule

with changes explained below.

Subpart G, Rule 609(c)--Attorney Fees

Two commenters questioned Rule 609(c)(4)'s approach to attorney

fees. That rule provides that the term ``issue,'' for purposes of

charging a fee, would have the same meaning as ``issue'' in the context

of a motion under subpart O. In other words, provided that the Board

decision being challenged is associated with a notice of disagreement

dated on or after November 18, 1988, and that the attorney was retained

within one year of that decision, the attorney can be paid for services

rendered in connection with a motion under subpart O.

The rule as proposed makes paid legal representation available to

the maximum extent possible under existing law. For example, if we

defined ``issue'' as meaning a challenge based on CUE, an attorney

would never be able to charge for services in connection with a CUE

motion because the Board would not have issued a final decision on the

``issue'' until after the CUE process was complete.

Two commenters suggested that we ignore the requirement that, in

order for an attorney or agent to charge a fee, a

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case must have associated with it a notice of disagreement received on

or after November 18, 1988. That requirement is imposed by Pub. L. 100-

687, Div. A, section 403, 102 Stat. 4108, reprinted at 38 U.S.C.A. 5904

note (applicability to attorneys fees), and VA may not by rule

eliminate a requirement imposed by statute. One commenter suggested

that we define ``case'' as a CUE case brought by a party unrepresented

by an attorney, and that the one-year period should begin when the

Board denies that party's motion. We do not believe that whether an

action is a ``case'' depends on the nature of the movant's

representation, and decline to adopt that suggestion.

Accordingly, we are adopting the change to Rule 609 as proposed.

Subpart K, Rule 1000--Reconsideration

General

We proposed to eliminate reconsideration on the grounds of obvious

error based on the conclusion that this procedure was duplicative of

the process under 38 U.S.C. 7111. Based on the comments received, we

have concluded that the remedies are not totally equivalent, primarily

because the remedy of reconsideration, when ordered by the Chairman,

requires that the Board review the appeal de novo, while review on a

CUE motion requires the review only of specific allegations of error.

Accordingly, the final rule does not contain any change to Rule 1000.

Motions for Reconsideration as Motions for Review Under the Cue

Standard

Because we had proposed to eliminate motions for reconsideration

based on obvious error, we decided to treat motions for reconsideration

alleging obvious error received after the enactment of Pub. L. 105-111

as motions for correction of CUE and so informed individuals who had

filed such reconsideration motions. However, because we have now

decided not to eliminate reconsideration based on obvious error, and

because of the special pleading rules and the finality associated with

motions under 38 U.S.C. 7111, we have decided that motions for

reconsideration should not be considered CUE motions. In our view,

there is a potential risk for the veteran to lose his or her chance at

reversal on CUE grounds by inadvertently filing such a motion. We

believe that CUE motions should be carefully thought out.

Accordingly, we have added a new paragraph (e) to Rule 1404

(relating to filing and pleading requirements) which provides that

motions for reconsideration, whenever filed, will not be considered

motions under subpart O. We do not believe this approach will prejudice

anyone because (1) a CUE motion may be filed at any time; (2) the

effect of a successful motion is the same no matter when filed--i.e.,

the prior Board decision is revised effective the date it was

originally issued; and (3) the vast majority of individuals who applied

for reconsideration probably had no idea that their motions would be

construed as requests for revision under the new statute.

Nevertheless, since we have told individuals that we would decide

their reconsideration motions under the new CUE regulations, and since

the ``motions'' of those individuals have been assigned a place on the

Board's ``docket,'' we will give each person so notified an opportunity

to have his or her motion adjudicated under the new regulations.

Accordingly, we will (1) notify the individuals concerned that their

reconsideration motions will not be construed as CUE motions unless we

receive notification from them that they want the motion construed as a

CUE motion; (2) provide those individuals with a copy of the new

regulations; and (3) encourage them to seek representation if they

decide to pursue a motion under subpart O.

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

Unmistakable Error (Rules 1400-1411)

General

Several commenters suggested, in the context of various rules, that

we interpret Pub. L. 105-111 more liberally than the courts have

interpreted 38 CFR 3.105(a), VA's long-standing regulatory basis for

CUE challenges to regional office decisions. We decline to follow these

suggestions.

As we said in our NPRM, 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'').

Rule 1400

Proposed Rule 1400 recited the statutory rule that Board decisions

may be challenged on the grounds of CUE, and provided, in Rule 1400(b),

that a Board decision on an issue (as defined in Rule 1401(a)) decided

by a court of competent jurisdiction is not subject to challenge on the

grounds of CUE.

One commenter objected to Rule 1400(b) on a variety of grounds,

ranging from veterans' representatives who innocently miss grounds for

appeal to the inapplicability of the rule, set forth in Donovan v.

Gober, 10 Vet. App. 404 (1997), aff'd sub. nom. Donovan v. West, 158

F.3d 1377 (Fed. Cir. 1998), that a decision by an agency of original

jurisdiction (AOJ) is ``subsumed'' in a Board decision on the merits,

so that such an AOJ decision would no longer be subject to a CUE

challenge. The reason for Rule 1400(b), as stated in our NPRM, is that

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). 63 FR

27536.

The same commenter suggested that Rule 1400(b) was unclear as to

which final Board decisions would be exempt from review based on appeal

to a court of competent jurisdiction. It was our intent that two

classes of Board decisions not be subject to challenge: Those appealed

to and decided by such courts, and those on issues which are

subsequently decided by such courts. Consider this example:

A 1985 Board decision finally denied service connection for a

disability. In 1990, the veteran reopened the claim with new and

material evidence at the regional office; the claim was denied and

appealed to the Board; the Board again denied service connection;

and the decision was appealed to the Court of Veterans' Appeals

which, in 1995, affirmed the Board's decision. In 1997, the veteran

reopened his claim at the regional office, where it was denied on

the merits, and, in 1998, denied on appeal to the Board.

Under our rules, the veteran could challenge the 1998 Board

decision, but could not challenge either the decision which was

affirmed by the Court, or the 1985 decision. We believe that the

rationale stated in jurisprudence which prevents regional offices from

overturning Board decisions, and which therefore precludes regional

offices from reviewing for CUE their own decisions that have been

subsumed by subsequent Board decisions, is sound and is equally

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applicable to the Board. See generally Donovan v. West, supra.

Therefore, our rule precludes a CUE challenge to a Board decision on an

issue that has been subsequently decided by a court of competent

jurisdiction, whether on direct appeal of that Board decision or on

appeal of a subsequent Board decision on the same issue.

We have amended Rule 1400(b) to make this clearer.

Rule 1401

Rule 1401 defines the terms ``issue'' and ``party.''

Rule 1401(a), which defines ``issue,'' requires that the applicable

Board decision either have been appealable under Chapter 72 of title

38, United States Code, or would have been appealable if the notice of

disagreement had been received by the AOJ on or after November 18,

1988.

One commenter thought that our definition of ``issue'' could be

misinterpreted to mean that only Board decisions which in fact could

have been appealed under Chapter 72 could be challenged on the grounds

of CUE. That is certainly not what we intended. The purpose of this

qualification is simply to clarify that only final, outcome-

determinative decisions of the Board are subject to revision on the

grounds of CUE. Our purpose in referencing appeals to the court is

simply to provide a meaningful standard for what we mean by ``final''

Board decisions. Since all Board decisions on appeals require that the

appellant have filed a notice of disagreement, 38 U.S.C. 7105(a), and

final Board decisions are appealable under chapter 72 of title 38,

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), parties, the

Board and reviewing courts, by using this standard, will be able to

determine whether a Board decision was in fact final, whether or not it

was actually appealed to the court. Nevertheless, we have revised Rule

1401(a) to clarify that a ``final decision'' is one which was

appealable to the Court of Veterans Appeals (CVA), or which would have

been appealable if the relevant statutory provisions providing review

had been in effect at the time of the Board decision.

One commenter stated that the definition of ``issue'' was too vague

because it refers to ``a matter upon which the Board made a final

decision,'' and the term ``matter'' is not defined. We do not agree.

The term ``matter'' is taken from 38 U.S.C. 7103(a), which refers to

the finality of a ``decision of the Board determining a matter under

section 7102'' of title 38. Section 7102 in turn relates to assignment

of proceedings to Board members. ``Matter'' is not an unknown term in

the context of Board decisions, cf. 38 U.S.C. 7104(a) (``matter'' for

decision under 38 U.S.C. 511(a)), and we think it is serviceable enough

in the context of subpart O.

The same commenter suggests that various ``subsidiary'' questions

also be subject to CUE challenges. Again, we do not agree. As we stated

in our NPRM, one of the purposes of this definition is to clarify 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 * * *.'' 63 FR 27537.

Two commenters suggest amending the definition of ``party'' in Rule

1401(b), to include, variously, the representative of a party and the

family of a party. We do not agree. The right to challenge a Board

decision is limited by statute to the claimant and the Board. 38 U.S.C.

7111(c). Cf. Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998)

(substantively identical 38 U.S.C. 5109A, applicable to regional office

decisions, contains nothing that provides for another person, even a

survivor, to seek correction of a decision on a veteran's claim). We

note that, under Rule 1404(a), a party's representative may sign the

motion for a challenge on the grounds of CUE.

Accordingly, we are adopting Rule 1401(b) as proposed.

Rule 1402

There were no comments on Rule 1402, which provides that motions

filed under subpart O are not appeals and, except as otherwise

provided, are not subject to the provisions of the Board's regulations

which relate to the processing and disposition of appeals. We are

adopting Rule 1402 as proposed.

Rule 1403

Rule 1403 relates to what constitutes CUE and what does not. We

received a number of comments on this rule.

In our proposed rulemaking, we based our definition of CUE on

rulings by the CVA. A number of commenters suggested that this

definition was too restrictive, and should be modified.

We do not agree. Congress intended that VA adopt the CVA

interpretation of the term ``clear and unmistakable error.'' Indeed, as

discussed in the NPRM, 63 FR 27536, the sponsor of the bill which

became the law specifically noted that the bill would ``not alter the

standard for evaluation of claims of clear and unmistakable error.''

143 Cong. Rec. 1567, 1568 (daily ed. Apr. 16, 1997) (remarks of Rep.

Evans, sponsor of H.R. 1090, in connection with House passage).

Several commenters objected to our incorporation, in Rule

1403(b)(2), of the holding in Bell v. Derwinski, 2 Vet. App. 611

(1992), that, with respect to Board decisions issued on or after July

21, 1992, documents which were actually in VA's possession--even though

not physically before the adjudicator--are constructively a part of the

record. While we agree that this rule appears to conflict with a basic

tenet of CUE--i.e., that we look at the same set of facts and law as

did the original adjudicator--we do not believe we are free to ignore

the court's decision.

One commenter objected to Rules 1403(d)(2) and 1403(d)(3), which

provide that neither (1) the Secretary's failure to fulfill the duty to

assist nor (2) a disagreement as to how the facts were weighed or

evaluated can constitute CUE. As described in our NPRM, the law is

clear on these points. 63 FR 27536-37.

Rule 1403(e) provides 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. Two commenters objected to

this rule. Without getting into the various arguments advanced, it is,

we believe, enough to say that the CVA has now ruled that this is the

proper interpretation of the law. Smith (Rose) v. West, 11 Vet. App.

134, 137-38 (1998).

Accordingly, we are adopting Rule 1403 as proposed.

Rule 1404

Rule 1404 relates to filing and pleading requirements in connection

with a motion challenging a Board decision on the grounds of CUE. We

received a number of comments on this rule.

Several commenters expressed the view that the pleading

requirements set forth in the proposed rule are too strict. We do not

agree.

While it is true that the requirements set forth in these proposed

regulations are more strenuous than the ``paternalistic'' rules

commonly associated with veterans' claims, challenges on the grounds of

CUE are different from claims for benefits. Claims for benefits that

meet certain minimum requirements--i.e., that are ``well grounded''--

require VA to assist the veteran in a variety of ways and demand only

that the veteran show that it is at least as likely as not that he or

she meets the standards for a grant of

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benefits. This process indeed occurs in a non-adversarial setting.

On the other hand, a CUE challenge to a final Board decision--

itself the product of this non-adversarial process--is based on the

allegation that the Board has denied the claim in such a fundamentally

erroneous way that any reasonable person would have granted the claim.

It is a collateral challenge to an otherwise final decision as to which

the presumption of validity is very strong. Fugo v. Brown, 6 Vet. App.

40, 44 (1993).

We understand that a person whose claim for benefits is denied

would prefer that the claim have been granted. And, indeed, in our NPRM

we outlined several ways in which veterans' claims can be revived. 63

FR 27535. Nevertheless, where the veteran makes this kind of collateral

challenge to a presumptively valid final decision, he or she is

required to come forward with specific allegations as to the CUE.

Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Fugo v. Brown, 6 Vet.

App. 40, 44 (1993); cf. Berger v. Brown, 10 Vet. App. 166, 169 (1997)

(``(A)ppellant, who always bears the burden of persuasion on appeals to

this Court, bears an extra-heavy burden when the appeal is a collateral

attack, in the form of a CUE claim, concerning a final decision'').

That is, in essence, all that our rules call for.

As described earlier in this document, we have added a new

paragraph (e) to Rule 1404 to provide that motions for reconsideration,

whenever filed, will not be considered motions under subpart O.

We have also added a new paragraph (f) to Rule 1404 to clarify that

a motion under subpart O may be withdrawn at any time before the Board

promulgates a decision on the motion. If such a request is timely

received, the motion shall be dismissed without prejudice to refiling

under subpart O.

Rule 1405

Rule 1405 relates to the disposition of motions filed under subpart

O. The rule includes directions with respect to hearings, evidence, and

opinions of VA's General Counsel. We received a number of comments on

this rule.

Evidence (Rule 1405(b))

One commenter proposed another definition of CUE, which would

include the Board's failure to obtain evidence that a reasonable Board

member would have tried to obtain and that, more likely than not, would

have resulted in a grant of benefits. This commenter further proposed

that, under that definition, if a party submitted with the CUE motion

evidence that a reasonable Board member would have tried to obtain,

that evidence be considered to have been of record at the time of the

original decision. While we appreciate the thoughtful recommendation,

we do not concur. Congress intended VA to follow the established case

law defining CUE in implementing 38 U.S.C. 7111. This recommendation--

which would include in the definition of CUE evidence which would

obviously not have been before the Board at the time of the original

decision--does not meet that standard.

One commenter argued that a moving party should be permitted to

submit additional evidence in connection with a CUE challenge because

the word ``evidence'' is used in 38 U.S.C. 7111. Our NPRM set forth

controlling court precedents which make it clear that a ruling on CUE

is based on the record that was before the adjudicator. We have not

adopted this commenter's suggestion.

That same commenter argued that it is arbitrary to prohibit a

claimant from submitting evidence in connection with a CUE motion (Rule

20.1405(b)) but to permit the Board to use AOJs to ensure completeness

of the record (Rule 20.1405(e)). However, Rule 20.1405(e) would not

permit the Board to supplement the record with evidence that was not of

record at the time of the original decision, but rather would permit

the Board to ensure that all evidence that was before the Board at the

time of the original decision is before the Board on the CUE motion.

Accordingly, we have not adopted this argument.

Hearings (Rule 1405(c))

Rule 1405(c) provides that the Board, for good cause shown, may

grant a request for a hearing for the purpose of argument. One

commenter suggests that such hearings be made a matter of right. While

it is true, as this commenter points out, that hearings are freely

available in connection with most veterans' claims, those hearings are

typically for the purpose of submitting evidence. There is, however, no

evidence to be submitted in connection with a challenge based on CUE.

Indeed, a ``hearing'' with respect to a motion under subpart O is more

akin to oral argument in an appellate case. Accordingly, we are

adopting Rule 1405(c) as proposed.

General Counsel opinions (Rule 1405(f))

Rule 1405(f) permits the Board to secure opinions of VA's General

Counsel in connection with a motion under subpart O.

Two commenters expressed the opinion that this authority would be

used only to establish post-hoc rationalizations for Board decisions.

Those commenters articulate no factual basis for this conclusion. We

believe that, in the proper case, an opinion from the Department's

chief legal officer could be helpful in properly deciding the case. We

are adopting Rule 1405(f) as proposed.

Decision format (Rule 1405(g))

One commenter questioned the decision format to be used by the

Board, i.e., findings of fact, conclusions of law, and reasons and

bases for such findings and conclusions. As we said in our NPRM, we

believe that the format in our rule--based on the requirements in 38

U.S.C. 7104(d)--best facilitates judicial review. 63 FR at 27537.

Accordingly, we are adopting Rule 1405(g) as proposed.

Rule 1406

Rule 1406 relates to the effect of a revision of a Board decision

based on CUE. One commenter suggested that VA consider adopting a

regulation permitting the claimant to file a motion requesting a stay

of a Board order under subpart O which terminates or reduces benefits

pending a decision on appeal to the court. We decline to add such a

provision. In such a case, the Board would have, by definition, decided

that an award of benefits was clearly and unmistakably erroneous. To

continue the payment of benefits based on a clearly and unmistakably

erroneous award would create an overpayment attributable to the party.

One commenter argued that Rule 1406 is contrary to law to the

extent that it contemplates discontinuance or reduction of benefits in

the context of a CUE motion because, according to this commenter, the

Board has no authority to order such discontinuance or reduction. We do

not agree. Section 7111(a) of title 38, United States Code, requires

that, if evidence establishes a clear and unmistakable error in a Board

decision, that decision be reversed or revised. The Board's duty to

reverse or revise a clearly and unmistakably erroneous Board decision

is not limited by the statutory language to situations in which a grant

or increase in benefits would result. The commenter argued that 38

U.S.C. 7111(b)--which relates to procedures to be followed in those

cases where the CUE motion results in an award of benefits--implicitly

limits the Board's authority to granting benefits and denying motions.

However, that subsection simply provides the effective date of a

reversal or revision of a prior Board decision resulting in a grant of

or

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increase in benefits. The fact that section 7111(b) does not mention

the effective date for discontinuances or reductions does not prohibit

such orders any more than the fact that it does not mention denial of a

motion means the Board must grant every CUE motion.

We have divided Rule 1406 into two separate paragraphs for purposes

of clarity. This is purely stylistic, and we intend no substantive

change.

Rule 1407

Rule 1407 relates to motions under subpart O made by the Board.

One commenter suggested that we amend that portion of the rule

which provides that decisions on motions initiated by the Board are

subject to the same finality as those initiated by a party. We do not

agree. Should the Board undertake a motion, all parties will have an

opportunity to address the motion fully. While we do not anticipate

that the Board would use this authority often, we believe that the

process outlined is fair.

Another commenter suggested that the regulations be amended to

provide that the Board is subject to the same pleading rules as

parties. No changes are made based on this comment. The purpose of the

pleading requirements is for a claimant to sufficiently identify to the

Board the particular case, issue, and alleged error to be adjudicated.

In the case of the Board's own motion, the Board will already be aware

of this information. Furthermore, Rule 1407 will provide means for the

Board to inform the claimant of the same information and permit the

claimant to respond to the Board's motion.

That same commenter also suggests that, when the Board proposes to

reduce or terminate benefits as a result of a decision on the Board's

motion under subpart O, the Board provide the party a predetermination

hearing. We believe that the notice provisions of Rule 1407, and the

availability of a hearing under Rule 1405(c) satisfy any due process

concerns.

Accordingly, we are adopting Rule 1407 as proposed.

Rule 1408

No comments were received relating to Rule 1408, which applies to

simultaneously contested claims.

Accordingly, we are adopting Rule 1408 as proposed.

Rule 1409

Rule 1409 relates to finality and appeal of a decision on a motion

under subpart O.

One commenter objected to Rule 1409(c), which provides that, once

there is a final decision on a motion under subpart O, that prior Board

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

of CUE. We believe our explanation in the NPRM is sufficient to rebut

any argument on this point, and will not burden the record with a

point-by-point discussion. 63 FR 27538. See also Allin v. Brown, 10

Vet. App. 55, 57 (1997) (where court previously determined that there

was no CUE in 1971 regional office decision, the question is no longer

open for review).

As discussed earlier in this document, we have amended proposed

Rule 1404(f) to clarify that a CUE motion may be withdrawn at any time

before the Board promulgates a decision on the motion. We have amended

Rule 1409(b) to provide that a dismissal without prejudice under Rule

1404(f) is not a final decision of the Board.

Rule 1410

Rule 1410 relates to stays pending court action. There were no

comments relating to Rule 1410.

Accordingly, we are adopting Rule 1410 as proposed.

Rule 1411

Rule 1411 concerns the relationship of subpart O to other statutes.

One commenter objected to virtually all aspects of Rule 1411.

``Benefit of the doubt'' (Rule 1411(a)). This commenter argued

that, because 38 U.S.C. 7111 uses the word ``case,'' the benefit of the

doubt rule must apply to decisions made under subpart O. This commenter

does not attempt to distinguish controlling precedent from the CVA,

Russell v. Principi, 3 Vet. App. 310, 314 (1992), (discussed in our

NPRM, 63 FR 27536), that the ``benefit of the doubt'' rule does not

apply to the question of whether a prior decision was the result of

CUE, nor the legislative history described earlier in this document. We

reject this argument.

New and material evidence (Rule 1411(b)). The same commenter

objects to the rule providing that CUE claims are not subject to

reopening on the grounds of new and material evidence. However, as

discussed extensively in our NPRM, a motion under subpart O is a

challenge based on the evidence of record when the original decision

was made. Accordingly, there is no evidence to submit in connection

with such a motion, much less ``new and material evidence'' at some

later date. Further, a motion under subpart O is not a claim within the

meaning of 38 U.S.C. 5108 (relating to reopening claims with new and

material evidence). We reject this argument.

Duties associated with applications for benefits (Rule 1411(c)).

This same commenter objects to the rule providing that the duties

associated with applications for benefits do not apply to motions under

subpart O. We do not agree. Challenges based on CUE are collateral

attacks on final decisions, Berger v. Brown, 10 Vet. App. 166, 169

(1997); Duran v. Brown, 7 Vet. App. 216, 223-24 (1994), not claims for

benefits. Therefore, duties associated with applications for benefits

do not apply to CUE motions. In any event, the detailed rules we are

publishing are, we believe, fair and extremely detailed notice as to

what is required to successfully maintain a challenge of CUE.

Accordingly, we are adopting Rule 1411 as proposed.

The Secretary hereby certifies that this final rule does 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: January 8, 1999.

Togo D. West, Jr.,

Secretary of Veterans Affairs.

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

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

[[Page 2139]]

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

* * * * *

3. 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; withdrawal.

20.1405 Rule 1405. Disposition.

20.1406 Rule 1406. Effect of revision; discontinuance or reduction

of benefits.

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) All final Board decisions are subject to revision under this

subpart except:

(1) Those decisions which have been appealed to and decided by a

court of competent jurisdiction; and

(2) Decisions on issues which have subsequently been decided by a

court of competent jurisdiction.

(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). As used in the preceding

sentence, a ``final decision'' is one which was appealable under

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

appealable if such provision had been in effect at the time of the

decision.

(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))

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 part 19 of

this title or this part 20 which relate to the processing and

disposition of appeals.

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

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; withdrawal.

(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 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

[[Page 2140]]

a motion had been filed pursuant to paragraph (c) of this section.

(e) Motions for reconsideration. A motion for reconsideration, as

described in subpart K of this part, whenever filed, will not be

considered a motion under this subpart.

(f) Withdrawal. A motion under this subpart may be withdrawn at any

time before the Board promulgates a decision on the motion. Such

withdrawal shall be in writing, shall be filed at the address listed in

paragraph (c) of this section, and shall be signed by the moving party

or by such party's representative. If such a writing is timely

received, the motion shall be dismissed without prejudice to refiling

under this subpart.

(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 title (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; discontinuance or

reduction of benefits.

(a) General. 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.

(b) Discontinuance or reduction of benefits. 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 Rule 1404(f)

(Sec. 20.1404(f)), 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

[[Page 2141]]

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.

(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. 99-760 Filed 1-12-99; 8:45 am]

BILLING CODE 8320-01-P