[Congressional Record Volume 143, Number 45 (Wednesday, April 16, 1997)]
[House]
[Pages H1566-H1568]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
AMENDING U.S. CODE TO ALLOW REVISION OF VETERANS BENEFITS DECISIONS
BASED ON CLEAR AND UNMISTAKABLE ERROR
Mr. STUMP. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 1090) 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. 1090
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
[[Page H1567]]
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 decision 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 Illinois [Mr. Evans] each
will be recognized for 20 minutes.
The Chair recognizes the gentleman from Arizona [Mr. Stump].
General Leave
Mr. STUMP. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days in which to revise and extend their remarks and
include extraneous material on H.R. 1090, the bill presently under
consideration.
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.
This bill was introduced by the gentleman from Illinois [Mr. Evans]
last year as H.R. 1483. It passed the House in May 1986, but was never
considered in the other body.
H.R. 1090 extends the grounds upon which a veteran may appeal an
adverse benefit decision to the Board of Veterans Appeals and to the
Court of Veterans Appeals. The bill allows appeals based on what is
known as a clear and unmistakable error. Veterans who have been denied
benefits which have been in error like this must be given the right to
have their claims reexamined. This should greatly improve the recourse
provided to veterans when they believe that the VA has reached the
wrong conclusion in a VA benefit decision.
Mr. Speaker, I would like to commend the gentleman from Illinois [Mr.
Evans], the ranking minority member of the committee, for introducing
this bill and for all the hard work that he has put into this.
Mr. Speaker, I reserve the balance of my time.
{time} 1345
Mr. EVANS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, first of all, I want to thank the gentleman from
Arizona, Bob Stump, for helping us get this bill through the committee
process so quickly this year. Without his diligence we would not be
here this afternoon. I appreciate it very much, Mr. Speaker.
Mr. Speaker, the most significant change made by this bill would be
the new authority for veterans with prior claims involving clear and
unmistakable errors to resubmit their claims for new review by the
Board of Veterans Appeals. Under present law, a veteran has no right to
obtain review of clear and unmistakable errors in the previous decision
of the board, no matter how blatant that error.
In the cases where the asserted error was made by the regional office
of the Department of Veterans Affairs, this right already exists by
regulation. My bill would codify this regulation in title 38.
The kinds of errors which this bill would rectify are those which are
undebatable. These are errors which when called to the attention of a
subsequent reviewer, compel the conclusion that but for the error, the
result would have been manifestly different.
The bill also addresses the situations where evidence in the
veteran's file at the time of the prior decision was ignored or
wrongfully evaluated under the law as it existed at the time of the
original decision. This legislation would give veterans the same kind
of opportunity to pursue an erroneous claim decision now provided to
Social Security beneficiaries when they had been given misinformation.
Veterans deserve the same rights as Social Security recipients to have
errors corrected.
H.R. 1090 also provides for a limited expansion of the right for
judicial review. Veterans who initiate a claim of clear and
unmistakable error in either a prior regional office decision or a
prior Board of Veterans Appeals decision would be able to appeal that
claim through the administrative process to the Court of Veterans
Appeals. Once the court had ruled on the issue, no further claims of
clear and unmistakable error could be pursued at the administrative
level.
This bill is identical to legislation passed by the Congress last
session, and it has strong support from the Disabled American Veterans,
as well as other veterans' service organizations.
This legislation is about justice for our veterans. Veterans who have
given first-class service to our country should not be experiencing
anything less than first-class justice. I want to thank my colleagues
for their support of this legislation.
Mr. Speaker, thank you for your willingness to cosponsor this
important bill. The most significant change made by this bill is to
authorize veterans with prior claims involving clear and unmistakable
errors to resubmit their claims for a new review by the Board of
Veterans Appeals. Because there is presently no statute or regulation
allowing a veteran to claim clear and unmistakable error in a prior
decision of the Board of Veterans Appeals, the erroneous decision is
binding on the veteran no matter how obvious and egregious the error.
In cases where the asserted error was made by a Regional Office of
the Department of Veterans Affairs [VA], a VA regulation permits the
veteran to assert clear and unmistakable error in a prior decision.
H.R. 1090 would codify this regulation in title 38. The absence of a
statute addressing the issue of clear and unmistakable error creates an
anomaly by which a veteran who previously appealed a claim to the Board
of Veterans Appeals on the basis of clear and unmistakable error is
placed in a worse position than a veteran who never appealed the
original Regional Office decision.
The kind of errors which this bill will rectify are those which are
egregious and undebatable. These are errors which when called to the
attention of a subsequent reviewer compel the conclusion that, but for
that
[[Page H1568]]
error, the result would have been manifestly different. The need for
this legislation is illustrated by Precedent Opinion 2-97 recently
issued by the Department of Veterans Affairs General Counsel. That
opinion, which is binding on all levels of the administrative process,
affirmed that if a BVA decision is rendered based upon an erroneous
interpretation of the law, that decision is final and binding on all VA
components unless the Board reconsiders the decision. Under present
law, only the VA, and not the veteran has the right to obtain
reconsideration of a Board decision. Unlike other actions of the Board,
reconsideration decisions are not subject to judicial review.
The following cases brought by veterans who sought review of prior
decisions illustrate the kinds of clear and unmistakable errors which
would be subject to correction under this legislation.
A veteran with an above-the-knee amputation due to a service-
connected condition was entitled to a 60 percent rating under existing
law. If at the time of the original rating, the veteran's file showed
that he had an above-the-knee amputation, but received only a 40
percent rating, clear and unmistakable error would exist. Under present
law, if the Board of Appeals had previously found that their was no
clear and unmistakable error in the rating, this veteran could seek,
but not compel reconsideration and would have no remedy if the request
was denied. Under this bill, the veteran would have the right to have
the Board review his claim of clear and unmistakable error and, if
dissatisfied with that decision, could seek review in the Court of
Veterans Appeals.
A veteran was shot by a single bullet traveling through both the
upper and lower leg while in combat. He was awarded service-connection
for the injury to the lower leg, but not for the injury to the thigh.
Since the record at the time of the original decision showed through
and through wounds of both the upper and lower leg, both wounds should
have been rated. The failure to rate both wounds would constitute clear
and unmistakable error. Since a Regional Office of the VA had made the
original clear and unmistakable error, present regulations allow it to
be corrected. Under this bill, such a condition could be similarly
revisited even if the clear and unmistakable error had been made at the
Board of Veterans Appeals.
The bill also addresses those situations where evidence in the
veteran's file at the time of the prior decision was ignored or wrongly
evaluated under the law as it existed at the time of the original
decision. For example, if a dependent's benefit had been wrongly denied
because a legal and valid adoption was not recognized by the VA, the
bill would allow for correction of the error.
This legislation would provide veterans an opportunity similar to
that presently provided to Social Security beneficiaries under title 42
of the United States Code, sections 402(j)(5) and 1383(e)(5). Under
those provisions an individual may receive retroactive benefits when a
claim for benefits was not pursued due to misinformation provided by
any officer or employee of the Social Security Administration. The
standard for claims of clear and unmistakable error is similar to the
standard currently contained in Social Security regulations at 42 Code
of Federal Regulations, section 404.988, for revision of a claim at any
time due to error that appears on the face of the evidence considered
when the determination or decision was made. Veterans deserve the same
right as Social Security beneficiaries to have manifest errors
corrected.
The bill does not alter the standard for evaluation of claims of
clear and unmistakable error. In order to sustain such a claim, the
veteran must specifically identify the alleged error. The claim must
assert either a basic error of law or fact in the prior decision or
must give persuasive reasons as to why the outcome would be manifestly
different had the error not been made. Once a claim of clear and
unmistakable error has been raised and decided, the veteran may not
raise the same claim again.
This legislation also provides for a limited expansion of the right
to judicial review. This expansion is premised upon an understanding
that the error in the original adjudication of the claim was so
egregious that it should be revised to conform to the true state of the
law and the facts as they existed at the time of the original decision.
Veterans who initiate a claim of clear and unmistakable error in either
a prior Regional Office decision or a prior Board of Veterans Appeals
decision would be able to appeal that claim through the administrative
process to the Court of Veterans Appeals. Once the court had ruled on
the issue, no further claims of clear and unmistakable error could be
pursued at the administrative level.
H.R. 1090 is identical to legislation approved by the House last
Congress. It is not concerned with minor disputes or the weight given
to evidence. Instead it provides an avenue of correction of only those
serious and obvious errors about which there can be no doubt. The bill
has strong support from the veterans service organizations.
This legislation is about justice for veterans. Veterans who have
honorably served our country deserve no less. Where the prior
adjudication of claims are found to contain egregious violations of
law, veterans should have an opportunity for a full and fair
consideration of the errors. Our Nation's veterans are entitled to
this.
I thank my colleagues, including the 46 cosponsors of this bill, for
their support of H.R. 1090.
Mr. QUINN. Mr. Speaker, H.R. 1090 will provide important new appeal
rights to veterans whose claims have been denied by the Veterans
Administration.
Mr. Speaker, this bill will put current VBA regulations on clear and
unmistakable error into law. Those regulations now apply only to VA
Regional Offices. It will also allow veterans to appeal on the basis of
clear and unmistakable error at the Board of Veterans Appeals.
Currently, veterans may file a motion for reconsideration at the Board
on the grounds of obvious error, which the Court of Veterans Appeals
has determined to be the same as clear and unmistakable error.
Unfortunately, that motion for reconsideration falls short of a right
of appeal and is allowable only at the discretion of the Chairman of
the Board of Veterans Appeals.
Mr. Speaker, this bill sets a high standard for appeal. The grounds
on which such an appeal may be made must be so obvious that a
reasonable person would allow the appeal. The error must also
materially contribute to a faulty decision by the VA. The court has
stated that a mere allegation of such error is not sufficient to
automatically grant the appeal.
Mr. Speaker, this right of appeal is long overdue and I urge my
colleagues to support H.R. 1090.
Mr. EVANS. 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. Gillmor). 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. 1090.
The question was taken; and (two-thirds of those present 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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