[House Report 104-571]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 104-571
_______________________________________________________________________
REVISION OF VETERANS BENEFITS DECISIONS BASED ON CLEAR AND UNMISTAKABLE
ERROR
_______________________________________________________________________
May 10, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Stump, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
[To accompany H.R. 1483]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
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, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Introduction
On April 7, 1995, the Ranking Member of the Subcommittee on
Compensation, Pension, Insurance and Memorial Affairs, the
Honorable Lane Evans, along with the Honorable Frank Mascara,
the Honorable Bob Filner and the Honorable Luis V. Gutierrez,
introduced H.R. 1483, to allow revision of veterans benefits
decisions based on clear and unmistakable error.
The Subcommittee on Compensation, Pension, Insurance and
Memorial Affairs met on April 17, 1996 and recommended H.R.
1483 to the full Committee. The full Committee met on May 8,
1996 and ordered H.R. 1483 reported favorably to the House by
unanimous voice vote.
Summary of the Reported Bill
H.R. 1483 would:
1) Codify existing regulations which make decisions made by
the Secretary at a regional office subject to revision on the
grounds of clear and unmistakable error.
2) Make decisions made by the Board of Veterans' Appeals
subject to revision on the grounds of clear and unmistakable
error.
Background and Discussion
The VA claim system is unlike any other adjudicative
process. It is specifically designed to be claimant friendly.
It is non-adversarial; therefore, the VA must provide a
substantial amount of assistance to a veteran seeking benefits.
When the veteran first files a claim, VA undertakes the
obligation of assisting the veteran in the development of all
evidence pertinent to that claim.
There is no true finality of a decision since the veteran
can reopen a claim at any time merely by the presentation of
new and material evidence.
Any decision may be appealed within one year and the
grounds for appeal are unlimited. The appeal is initiated by a
simple notice of disagreement after which VA is obligated to
furnish a detailed statement of the facts and law pertinent to
the claim.
The bill would make decisions by VA Regional Offices and
the Board of Veterans Appeals (Board) subject to review on the
grounds of clear and unmistakable error. Regional office
decisions are currently reversible on this basis by regulation,
but Board decisions are not. Smith v. Brown, 35 F. 3d. 1516,
1523 (Fed. Cir. 1994). The bill would effectively codify this
regulation, and extend the principle underlying it to Board
decisions.
The Board is an appellate body located in Washington, DC,
responsible for reviewing claims on a de novo basis. Under
current law, a veteran may file a motion for reconsideration at
the Board at any time after the decision has been made. If the
Chairman of the Board grants a motion for reconsideration, the
matter is referred to an enlarged panel for a final decision.
Reconsideration of the claim is conducted under the law as it
existed at the time of the initial decision, and if an
allowance is ordered, the veteran receives the benefit
retroactive to the date of the initial decision.
During fiscal years 1991 through 1995, more than 3,600
motions for reconsideration were filed, and more than 800 (22
percent) were granted, resulting in reconsideration and a new
decision by a panel of at least three Board members. Of the
cases reconsidered, 77 percent resulted in allowances or
remands. As of March 31, 1996, there were 59,829 appeals
pending at the Board and the average Board response time was
752 days. The Committee will closely monitor the effect of this
legislation on the backlog at VA.
``Since at least 1928, the VA and its predecessors have
provided for the revision of decisions which were the product
of `clear and unmistakable error' ''. (citations omitted) The
appropriateness of such a provision is manifest.'' Russell v.
Principi, 3 Vet. App. 310, 313 (1992) (en banc). Congress has
provided the Board (but not the regional office or agency of
original jurisdiction) authority to correct obvious errors. 38
U.S.C. Sec. 7103(c). In arguments before the Court of Veterans
Appeals and testimony before this Committee, the VA has stated
that there is no substantive difference between the Board's
authority to correct ``obvious error'' and the agency of
original jurisdiction's authority to correct clear and
unmistakable error. ``The only real difference is that clear
and unmistakable error review can be invoked as of right,
whereas review for obvious error is committed to the sound
discretion of the Board.'' Smith, supra, 1526. With regard to
what constitutes clear and unmistakable error, the Court of
Veterans Appeals has noted:
It must always be remembered that 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. Thus even where the
premise of error is accepted, if it is not absolutely
clear that a different result would have ensued, the
error complained of cannot be, ipso facto, clear and
unmistakable. Russell v. Principi, 3 Vet. App. 310, 313
(1992) (en banc).
Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). As the Court
further stated in Fugo, clear and unmistakable error is a form
of collateral attack on an otherwise final decision, and there
is a very strong presumption of validity that attaches to such
decisions.
As noted above, this legislation would allow a claimant to
raise a claim of clear and unmistakable error with regard to a
Board decision. However, it does not follow that by merely
averring that such error has occurred, a veteran can
collaterally attack an otherwise final decision. At least in
cases brought before the Court of Veterans Appeals,
while the magic incantation ``clear and unmistakable
error'' need not be recited in haec verba, to recite it
does not suffice, in and of itself, to reasonably raise
the issue . . . [S]imply to claim clear and
unmistakable error on the basis that previous
adjudications had improperly weighed and evaluated the
evidence can never rise to the stringent definition of
clear and unmistakable error . . . Similarly, neither
can broad-brush allegations of ``failure to follow the
regulations'' or ``failure to give due process,'' or
any other general, non-specific claim of ``error''.
Id. Given the Court's clear guidance on this issue, 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.
Finally, the Committee notes that an appellate system which
does not allow a claimant to argue that a clear and
unmistakable error has occurred in a prior decision would be
unique. That is certainly the intent of the original VA
regulation allowing correction of such decisions, no matter
when the error occurred or which part of the VA made the error.
Given the pro-claimant bias intended by Congress throughout the
VA system, the Committee concludes that this legislation is
necessary and desirable to ensure a just result in cases where
such error has occurred.
Views of the Administration
statement of charles l. cragin, chairman, board of veterans' appeals,
department of veterans affairs, before the subcommittee on
compensation, pension, insurance and memorial affairs on october 12,
1995, pertaining to h.r. 1483
We oppose enactment of H.R. 1483 for the following reasons.
Section 1(a) of H.R. 1483 would subject decisions of an
agency of original jurisdiction to revision on the grounds of
clear and unmistakable error. The evidentiary establishment of
such error would require reversal or revision of the decision.
Reversal or revision of a prior decision on these grounds would
have the same effect as if the reversal or revision had been
made on the date of the prior erroneous decision. Section 1(a)
would permit the Secretary to institute review of a decision
for clear and unmistakable error on his or her own motion or
upon request of a claimant. A request for such review could be
made at any time after the original decision is made and would
be decided the same as any other claim.
Section 1(a) would provide by statute what VA already
provides in its regulations and claims-adjudication process.
Currently, an allegation of error in an otherwise final
decision of an agency of original jurisdiction requires a
review of that decision for correctness. Under the provisions
of 38 C.F.R. Sec. 3.105(a), a finding of clear and unmistakable
error requires reversal or amendment of the erroneous decision.
The later, correct decision is effective as if it had been made
on the date of the previous, incorrect decision. The time
during which clear and unmistakable error may be alleged is not
restricted. Such allegations are treated as other claims are,
even to the extent that the United States Court of Veterans
Appeals has held:
Once there is a final decision on the issue of ``clear
and unmistakable error'' because the [agency of
original jurisdiction] decision was not timely
appealed, or because a [Board of Veterans' Appeals]
decision not to revise or amend was not appealed to
th[e] Court, or because th[e] Court has rendered a
decision on the issue in that particular case, that
particular claim of ``clear and unmistakable error''
may not be raised again.
Russell v. Principi, 3 Vet. App. 310, 315 (1992). Although we
have no particular objections to the provisions of section 1(a)
of H.R. 1483, we believe that existing law and regulations
already afford the same protections so that additional
legislation is unnecessary.
Section 1(b) of H.R. 1483 would subject Board decisions to
revision on the grounds of clear and unmistakable error. It
would authorize claimants to request a review to determine the
existence of clear and unmistakable error in a Board decision
at any time after the decision is made. Under section 1(c),
those provisions would apply to all Board decisions, and any
Board decision on a claim of clear and unmistakable error that
was filed after or was pending before VA, the Court of Veterans
Appeals, the Court of Appeals for the Federal Circuit, or the
Supreme Court on the date of enactment of H.R. 1483 would be
subject to review by the Court of Veterans Appeals.
In the interests of the finality of administrative
appellate decisions, VA opposes the provisions of section 1(b)
and (c). The Board already has the authority, under current 38
U.S.C. Sec. 7103(c), to correct an obvious error in the record,
and the Chairman has the authority, under 38 U.S.C.
Sec. 7103(a), to order reconsideration of a prior Board
decision. Under the provisions of 38 C.F.R. Sec. 20.1000, the
Chairman may order reconsideration on the Board's own motion or
on an appellant's motion upon an allegation of obvious error of
fact or law.
Section 1(c) would in effect rescind the limitation, in
section 402 of the Veterans' Judicial Review Act, on which
Board decisions are subject to review by the Court of Veterans
Appeals. Under that limitation, the Court may review only those
decisions in which a notice of disagreement was filed on or
after November 18, 1988. Subjecting to Court review any Board
decision on a claim of clear and unmistakable error in a prior
Board decision would also subject the prior Board decision to
Court review. Obviously, the Court could not determine whether
a prior Board decision involved clear and unmistakable error
without examining that prior decision. Thus, the Court could
review any Board decision, regardless of when the notice of
disagreement was filed, that was reviewed on a claim of clear
and unmistakable error. Such wide-ranging review would seem
very much at odds with the carefully circumscribed review
afforded under the original Veterans' Judicial Review Act.
Enactment of section 1(b) and (c) now, when the Board is
struggling to achieve acceptable response times in working its
already heavy caseload, could require the Board to review,
literally on demand, hundreds of thousands of its past
decisions, including those entered decades ago. From FY 1977 to
FY 1994, the Board issued 518,157 final decisions. If claimants
challenged only five percent of those otherwise final decisions
alleging clear and unmistakable error, the Board's caseload
would increase by 25,908 cases. This additional caseload would
exceed the Board's entire FY-1994 output of 22,045 decisions
and approach the Board's projected FY-1995 output of 28,000
decisions. The Board's average response time for FY 1994 was
781 days and is projected to be 745 days in FY 1995. Assuming
that no additional resources would be available to handle the
nearly 26,000 additional cases that could result from enactment
of section 1(b) and (c), the average response time would
increase to 1,083 days. Enactment now would come at the worst
possible time, and its adverse impact on decisional timeliness
could more than offset any gains that may flow from enactment
of Public Law 103-271, which authorized single-member Board
decisions.
Because some provisions of H.R. 1483 are redundant, and
others could aggravate the Board's backlog of appeals, we
oppose enactment of the bill.
Section-By-Section Analysis
Section 1(a) would amend chapter 51 of title 38, United
States Code, to codify existing regulations which make
decisions made by the Secretary at a regional office subject to
revision on the grounds of clear and unmistakable error.
Section 1(b) would amend chapter 71 of title 38, United
States Code, to make decisions made by the Board of Veterans'
Appeals subject to revision on the grounds of clear and
unmistakable error.
Section 1(c) would make the provisions of this bill
applicable to any determination made before, on, or after the
date of the enactment of this Act.
Oversight Findings
No oversight findings have been submitted to the Committee
by the Committee on Government Reform and Oversight.
Congressional Budget Office Cost Estimate
The following letter was received from the Congressional
Budget Office concerning the cost of the reported bill:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 8, 1996.
Hon. Bob Stump,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office (CBO)
has reviewed H.R. 1483, a bill to allow revision of veterans
benefits decisions based on grounds of clear and unmistakable
error, as ordered reported by the House Committee on Veterans'
Affairs on May 8, 1996.
The Department of Veterans Affairs (VA) carries a large
backlog of claims for benefits, including new applications and
appeals based on prior decisions. According to VA, this bill
would help streamline its claims adjudication process. This
streamlining could result in a more efficient and economical
administration of claims and, therefore, a savings in general
operating expenses. On the other hand, benefits could be
awarded to some veterans sooner than would currently be the
case, resulting in higher costs. CBO cannot estimate either
budgetary effect.
H.R. 1483 would affect direct spending and thus would be
subject to pay-as-you-go procedures under section 252 of the
Balanced Budget and Emergency Deficit Control Act of 1985. H.R.
1483 contains no intergovernmental or private sector mandates
as defined in Public Law 104-4 and would impose no direct costs
on state, local or tribal governments.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mary Helen
Petrus. who can be reached at 226-2840.
Sincerely,
June E. O'Neill,
Director.
Inflationary Impact Statement
The enactment of the reported bill would have no
inflationary impact.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of the
House of Representatives, changes in existing law made by the
bill, as reported, are shown as follows (new matter is printed
in italics, existing law in which no change is proposed is
shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
* * * * * * *
CHAPTER 51--CLAIMS, EFFECTIVE DATES, AND PAYMENTS
subchapter i--claims
Sec.
5101. Claims and forms.
5102. Application forms furnished upon request.
* * * * * * *
5109A. Revision of decisions on grounds of clear and unmistakable
error.
* * * * * * *
SUBCHAPTER I--CLAIMS
* * * * * * *
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.
* * * * * * *
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
CHAPTER 71--BOARD OF VETERANS' APPEALS
Sec.
7101. Composition of Board of Veterans' Appeals.
7101A. Members of Board: appointment; pay; performance review.
* * * * * * *
7111. Revision of decisions on grounds of clear and unmistakable error.
* * * * * * *
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.
* * * * * * *
Applicability to Legislative Branch
The reported bill would not be applicable to the
legislative branch under the Congressional Accountability Act,
Public Law 104-1, because the bill would only affect certain
Department of Veterans Affairs benefits recipients.
Statement of Federal Mandates
The reported bill would not establish a federal mandate
under the Unfunded Mandates Reform Act, Public Law 104-4.
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