[Congressional Record Volume 142, Number 72 (Tuesday, May 21, 1996)]
[House]
[Pages H5311-H5313]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                REVISION OF VETERANS BENEFITS DECISIONS

  Mr. STUMP. Mr. Speaker, I move to suspend the rules and pass the bill 
(H.R. 1483) to amend title 38, United States Code, to allow revision of 
veterans benefits decisions based on clear and unmistakable error.
  The Clerk read as follows:

                               H.R. 1483

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. REVISION OF DECISIONS BASED ON CLEAR AND 
                   UNMISTAKABLE ERROR.

       (a) Original Decisions.--(1) Chapter 51 of title 38, United 
     States Code, is amended by inserting after section 5109 the 
     following new section:

     ``Sec. 5109A. Revision of decisions on grounds of clear and 
       unmistakable error

       ``(a) A decision by the secretary under this chapter is 
     subject to revision on the grounds of clear and unmistakable 
     error. If evidence establishes the error, the prior decision 
     shall be reversed or revised.
       ``(b) For the purposes of authorizing benefits, a rating or 
     other adjudicative decision that constitutes a reversal or 
     revision of a prior 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.
       ``(c) Review to determine whether clear and unmistakable 
     error exists in a case may be instituted by the Secretary on 
     the Secretary's own motion or upon request of the claimant.
       ``(d) A request for revision of a decision of the Secretary 
     based on clear and unmistakable error may be made at any time 
     after that decision is made.
       ``(e) Such a request shall be submitted to the Secretary 
     and shall be decided in the same manner as any other 
     claim.''.
       (2) The table of sections at the beginning of such chapter 
     is amended by inserting after the item relating to section 
     5109 the following new item:

``5109A. Revision of decisions on grounds of clear and unmistakable 
              error.''.

       (b) BVA Decisions.--(1) Chapter 71 of such title is amended 
     by adding at the end the following new section:

     ``Sec. 7111. Revision of decisions on grounds of clear and 
       unmistakable error

       ``(a) A decision by the Board is subject to revision on the 
     grounds of clear and unmistakable error. If evidence 
     establishes the error, the prior decisions shall be reversed 
     or revised.
       ``(b) For the purposes of authorizing benefits, a rating or 
     other adjudicative decision of the Board that constitutes a 
     reversal or revision of a prior decision of the Board 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.
       ``(c) Review to determine whether clear and unmistakable 
     error exists in a case may be instituted by the Board on the 
     Board's own motion or upon request of the claimant.
       ``(d) A request for revision of a decision of the Board 
     based on clear and unmistakable error may be made at any time 
     after that decision is made.
       ``(e) Such a request shall be submitted directly to the 
     Board and shall be decided by the Board on the merits, 
     without referral to any adjudicative or hearing official 
     acting on behalf of the Secretary.
       ``(f) A claim filed with the Secretary that requests 
     reversal or revision of a previous Board decision due to 
     clear and unmistakable error shall be considered to be a 
     request to the Board under this section, and the Secretary 
     shall promptly transmit any such request to the Board for its 
     consideration under this section.''.
       (2) The table of sections at the beginning of such chapter 
     is amended by adding at the end the following new item:

``7111. Revision of decisions on grounds of clear and unmistakable 
              error.''.

       (c) Effective Date.--(1) Sections 5109A and 7111 of title 
     38, United States Code, as added by this section, apply to 
     any determination made before, on, or after the date of the 
     enactment of this Act.
       (2) Notwithstanding section 402 of the Veterans Judicial 
     Review Act (38 U.S.C. 7251 note), chapter 72 of title 38, 
     United States Code, shall apply with respect to any decision 
     of the Board of Veterans' Appeals on a claim alleging that a 
     previous determination of the Board was the product of clear 
     and unmistakable error if that claim is filed after, or was 
     pending before the Department of Veterans Affairs, the Court 
     of Veterans Appeals, the Court of Appeals for the Federal 
     Circuit, or the Supreme Court on, the date of the enactment 
     of this Act.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Arizona [Mr. Stump] and the gentleman from Mississippi [Mr. Montgomery] 
will each be recognized for 20 minutes.
  The Chair recognizes the gentleman from Arizona [Mr. Stump].

[[Page H5312]]

                             general leave

  Mr. STUMP. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their remarks 
and include extraneous materials on H.R. 1483.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Arizona?
  There was no objection.
  Mr. STUMP. Mr. Speaker, I yield myself such time as I may consume.
  (Mr. STUMP asked and was given permission to revise and extend his 
remarks.)
  Mr. STUMP. Mr. Speaker, I want to commend the gentleman from Illinois 
[Mr. Evans] for introducing this bill and the subcommittee chairman, 
the gentleman from Alabama [Mr. Everett], for acting on this 
legislation. They have truly proceeded in a bipartisan manner and 
deserve the support of the Members.
  I would also like to thank my good friend, the gentleman from 
Mississippi, Sonny Montgomery, the ranking minority member of the full 
committee, for his efforts on this measure.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from Alabama [Mr. Everett] for an explanation of the bill.
  Mr. EVERETT. Mr. Speaker, I thank the gentleman from Arizona [Mr. 
Stump], the distinguished chairman of the Committee on Veterans' 
Affairs and my good friend for yielding the time.
  H.R. 1483 will offer veterans whose claims have been denied to appeal 
on the grounds of clear and unmistakable error. The bill will do three 
things.
  First, it will codify the existing right of appeal at the regional 
office. Second, it will establish right of appeal at the board of 
veterans' appeals. And finally, it will provide access to the court of 
veterans appeals on the grounds of clear and unmistakable error.
  The bill received strong support from the VSO's on the grounds that 
clear erroneous error on the part of the VA should never be allowed to 
stand. VA has opposed the bill on the grounds that the right already 
exists through the BVA, chairmans discretionary reconciliation 
reconsidering process and the potential for increasing the claims 
backlogged, but VA was unable to provide any data supporting the 
concerns about potential increase in the backlog. I view this as a 
classic confrontation between the right of the individual and the right 
of the group, evidence to the contrary showing severe impact on the 
veterans as a whole. I must support the individual's right to redress, 
and I urge my colleagues to support the bill.
  Mr. MONTGOMERY. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I want to congratulate and thank the distinguished 
chairman of the committee, the honorable gentleman from Arizona [Mr. 
Stump], for bringing this measure to the floor and also for the next 
bill and say that we are a bipartisan committee, and we have worked 
like that for years in a bipartisan manner doing everything we can to 
help veterans.

                              {time}  1430

  Mr. Speaker, I want to compliment my friend and ranking member of the 
Subcommittee on Compensation, Pension, Insurance and Memorial Affairs 
of the Committee on Veterans' Affairs, the gentleman from Illinois, 
Lane Evans, for introducing this measure; and I want to say to the 
chairman of the Subcommittee on Compensation, Pension, Insurance and 
Memorial Affairs, the gentleman from Alabama, Terry Everett, I thank 
him for his work in bringing both of these bills to the floor.
  Mr. Speaker, the Board of Veterans' Appeals must review decisions 
made by the VA regional offices as a veteran files an appeal within 1 
year of the date of the decision. The board can reverse that decision 
for many reasons, including errors in applying the law if errors in 
judgment.
  However, if no appeal is filed within 1 year, a veteran loses the 
right to have the board review the decision, even if that decision was 
clearly wrong. The bill before us gives veterans the right to have the 
Board of Veterans Appeals' review a prior final decision, no matter 
when it was made, and correct a clear and unmistakable error. It is a 
good bill that serves the best interests of the veterans, and I urge my 
colleagues to support the bill.
  Mr. Speaker, I yield 3 minutes to the gentleman from Illinois [Mr. 
Evans], the author of this bill.
  Mr. EVANS. Mr. Speaker, I also want to express my appreciation to the 
chairman of the full committee and the chairman of the subcommittee, to 
the gentleman from Arizona, Bob Stump, and the gentleman from 
Mississippi, Sonny Montgomery.
  Mr. Speaker, both bills received extensive scrutiny at a subcommittee 
hearing last October. They include measures recommended by the 
administration and members of the Committee on Veteran's Affairs.
  H.R. 1483 has received strong support from the Disabled American 
Veterans and other veterans organizations.
  Mr. Speaker, there has been some concern expressed about the possible 
effect that this bill may have on the backlog of appeals at the Board 
of Veterans' Appeals. I met with BVA Chairman Cragin and we discussed 
the Administration's concern about this possibility. While I do not 
believe that this legislation will have any appreciable effect on the 
BVA backlog, I want to reflect several important matters concerning 
this bill.
  First, since veterans already have the right to raise a claim of 
clear and unmistakable error before the regional office, any increase 
in the BVA backlog should be minimal. Veterans have long had this 
right, and it does not appear to cause unusual or time-wasting problems 
today.
  Second, the Board may wish to consider the adoption of procedural 
rules to make consideration of appeals raising such issues less 
burdensome, much as the Court of Veterans Appeals did in Russell versus 
Principi and Fugo versus Brown.
  In these cases, the Court noted that a simple claim of CUE, or a 
``broad-brush allegation'' that previous decisions were wrong, is not 
sufficient to constitute CUE.

       If a claimant-appellant wishes to reasonably raise CUE 
     there must be some degree of specificity as to what the 
     alleged error is and . . . persuasive reasons must be given 
     as to why the result would have been manifestly different but 
     for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 
     (1993).

  It would appear that the Board could propose pleading standards 
consistent with this statement which would make adjudication of non-
meritorious CUE claims easier.
  However, an appellate system which would tolerate and let stand 
decisions so patently wrong as to meet the demanding standard of being 
clearly and unmistakably erroneous is a system not worthy of continued 
respect. The very essence of a system of appellate and judicial review 
cries out for correction of ``clear and unmistakable error'', no matter 
when the error occurred or how much effort it takes to sift meritorious 
claims from all others. I believe that this is why all of the veterans 
service organizations support this legislation.
  Mr. Speaker, I urge my colleagues to support this bill.
  Mr. MONTGOMERY. Mr. Speaker, I yield 2 minutes to the gentleman from 
California [Mr. Filner].
  Mr. FILNER. Mr. Speaker, I thank the gentleman for yielding time to 
me.
  Mr. Speaker, more important than that, I thank the gentleman for his 
friendship and his tutelage. We all know that the gentleman from 
Mississippi [Mr. Montgomery] will be retiring at the end of this 
session. I just want to say when I first arrived in Congress, there was 
no one who was more gracious or more giving of his time and knowledge 
than the gentleman from Mississippi; and I appreciate his service, of 
course, to our Nation's veterans, and his assistance to me personally, 
as I have tried to learn the issues of veterans.
  Sonny, you are going to hear this many times in the next few months, 
but you will be missed greatly. I thank the gentleman very much.
  Mr. Speaker, I, too, rise in support of H.R. 1483. I was a proud 
cosponsor of the bill, as were the various organizations, such as the 
Disabled American Veterans and the Vietnam Veterans of America. This 
bill, as we have heard, provides a review for veterans who have been 
denied their benefits in the past. If there was a clear and 
unmistakable error involved in a VA decision the veteran may appeal, 
even if the

[[Page H5313]]

current time limit for appeals has expired. Retroactive benefits will 
be paid to veterans whose appeal results in a favorable decision. The 
Board of Veterans' Appeals will be required to review these cases.
  Mr. Speaker, during the years 1991 through 1995, 3,600 motions to 
reconsider Board of Veterans' Appeals decisions were filed, but only 22 
percent were granted. The other 78 percent of veterans who believe they 
had been wronged were denied a hearing on that appeal.
  We must keep our promises to our veterans. There are many veterans 
whose claims have been denied due to an error in the decision making 
process. This bill will allow us to correct the wrongs that many of 
these veterans have endured. I thank all the chairs and the ranking 
members for bringing this bill today, and I urge my colleagues to 
approve H.R. 1483.
  Mr. GILMAN. Mr. Speaker, I rise today in strong support of H.R. 1483 
revising veterans benefits decisions based on clear and unmistakable 
error.
  I want to thank the gentleman from Illinois, Mr. Evans, for 
introducing this bill as well as Chairman Stump and Ranking Member 
Montgomery for their support of this measure.
  H.R. 1483 will amend current law to ensure that benefit decisions by 
both VA regional offices and the Board of Veterans' Appeals are subject 
to review on the grounds of clear and unmistakable error.
  The intention of this legislation is make the consideration of 
appeals based on clear and unmistakable errors less burdensome and to 
ensure just results in cases where such error has occurred.
  The Department of Veterans Affairs believes that this legislation 
will streamline its claims adjudication process, and will result in a 
more efficient and economical claims administration as well as savings 
in general operating expenses.
  I believe that this legislation provides needed assistance to those 
veterans who have filed claims and I urge my colleagues to give it 
their support.
  Mr. MONTGOMERY. Mr. Speaker, I have no further requests for time, and 
I yield back the balance of my time.
  Mr. STUMP. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Wicker). The question is on the motion 
offered by the gentleman from Arizona [Mr. Stump] that the House 
suspend the rules and pass the bill, H.R. 1483.
  The question was taken; and (two-thirds having voted in favor 
thereof) the rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

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