[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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