[House Report 105-52]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 105-52
_______________________________________________________________________
TO ALLOW REVISION OF VETERANS BENEFITS DECISIONS BASED ON CLEAR AND
UNMISTAKABLE ERROR
_______________________________________________________________________
April 14, 1997.--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. 1090]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred 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, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Introduction
On March 18, 1997, the Ranking Democratic Member of the
Committee on Veterans Affairs, the Honorable Lane Evans, along
with the Honorable Bob Stump, Chairman of the Committee on
Veterans Affairs, the Honorable Bob Filner, Ranking Member of
the Subcommittee on Benefits, the Honorable Barney Frank, the
Honorable Carolyn Maloney, the Honorable Donald Payne, the
Honorable Phil English, and the Honorable William Lipinski
introduced H.R. 1090, to allow revision of veterans benefits
decisions based on clear and unmistakable error.
The full Committee met on March 20, 1997 and ordered H.R.
1090 reported favorably to the House by unanimous voice vote.
Summary of the Reported Bill
H.R. 1090 would:
1. LAmend 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 by the Regional Office.
2. LAmend 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.
3. LPermit appeal to the Court of Veterans Appeals of any
decision made before, on, or after enactment 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. 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 reported bill would make decisions by VA Regional
Offices and the Board of Veterans Appeals (BVA) subject to
review on the grounds of clear and unmistakable error. Regional
office decisions are currently reversible on this basis by
regulation, but BVA 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 BVA decisions.
The BVA 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 BVA at any time after the decision has been made. If the
Chairman of the BVA 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 on the basis of obvious error is ordered, the veteran
receives the benefit retroactive to the date of the initial
claim. If the request for reconsideration is denied, the
veteran has no right of appeal.
During fiscal years 1991 through 1996, approximately 4,400
motions for reconsideration were filed, and more than 900 (21
percent) of these motions were granted. A panel of at least
three Board members rendered a new decision. Of the new
decisions 75 percent were allowances or remands. As of February
28, 1997, there were 53,434 appeals pending at the BVA and the
average BVA response time was 513 days.
``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 of Veterans Appeals (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, 1526.
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, 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
successfully 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''.
Fugo v. Brown, 43-44. 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. This bill addresses errors similar to the kinds which
are grounds for reopening Social Security claims. Under the
Social Security system, a claim may be reopened at any time to
correct an error which appears on the face of the evidence used
when making the prior decision. 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. The Committee
directs the BVA to monitor the effect of this legislation and
to include the data in its annual report.
Statement of Administration's Views
The Committee has not requested the Administration's
comment on this bill. However, H.R. 1090 is identical to H.R.
1483 passed by the House during the 104th Congress. In
testimony before the Committee on October 12, 1995, the
Administration opposed H.R. 1483 on the grounds that
authorizing appeals on the grounds of clear and unmistakable
error would add to the claims backlog at the Board. The
Committee requested the Board to provide data to support its
position, but the Board indicated it could not provide such
data.
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, April 10, 1997.
Hon. Bob Stump,
Chairman, Committee on Veterans' Affairs,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1090, a bill to
amend title 38, United States Code, to allow revision of
veterans benefits decisions based on clear and unmistakable
error.
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
Enclosure
congressional budget office cost estimate
H.R. 1090--A bill to amend title 38, United States Code, to allow
revision of veterans benefits decsions based on clear and unmistakable
error.
As ordered reported by the House Committee on Veterans' Affairs
on March 20, 1997
CBO estimates that H.R. 1090 would raise administrative
costs over the first two or three years after enactment by $1
million to $2 million in total, but in the longer run
administrative costs would rise by less than $500,000 a year.
In addition, CBO estimates that the bill would have a direct
spending impact of less than $500,000 a year through 2002.
Because the bill would raise direct spending, it would be
subject to pay-as-you-go procedures. H.R. 1090 contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act of 1995 and would not affect the
budgets of state, local, or tribal governments.
Section 1(a) would have no budgetary impact because it
would codify the current procedure for revising veterans'
claims decisions made by regional offces. Other sections of the
bill would give certain veterans new rights and opportunities
for appeal. Under current law, a veteran may appeal a regional
offce's decision to the Board of Veterans Appeals (BVA). Once
the BVA has rendered a decision, a veteran may appeal directly
to the Court of Veterans Appeals (COVA) or move for
reconsideration of the Board's decision on the basis of
``obvious error.'' The Chairman of BVA reviews the motion and
at his discretion may allow it, thus referring the matter to a
panel of members for reconsideration. Section 1(b) would
require BVA to review decisions challenged on the basis of
``clear and unmistakable error.'' Section 1(c) would make
sections 1(a) and 1(b) retroactive and would allow veterans to
appeal BVA decisions involving claims of clear and unmistakable
error to COVA and other higher courts regardless of a current
restriction limiting consideration to cases in which
administrative appeals were initiated on or after November 18,
1988.
To obtain revision of a BVA decision under the bill, the
claimant must assert ``clear and unmistakable error,'' which is
an error of law or fact in the record at the initial decision
that compels the conclusion that the decision would have been
different but for the error. The ``clear and unmistakable
error'' standard is roughly the same as the current standard of
``obvious error.'' The standard of review, therefore, is not
the key change that the bill would make in the procedure.
Rather, the bill would eliminate the Chairman's discretion in
reconsideration and make the review of a BVA decision a matter
of right.
The administrative costs of the bill would have two parts--
a continuing increase in costs associated with the annual
caseload under current law and a larger initial increase that
would stem from retroactively extending the right to review.
CBO assumes that the longer run increase in caseload resulting
from this bill would be a portion of the requests for
reconsideration under current law that are denied. From 1991 to
1995, BVA denied reconsideration for about 500 motions a year,
including motions that might have been based on clear and
unmistakable error. Data from the Department of Veterans
Affairs indicate that the average cost per case is about
$1,000. Because the marginal cost of each new case would be
less than $1,000 and BVA would have to review fewer than 500
new motions a year, the long-run costs of administration would
be less than $500,000 annually.
The number of veterans who would demand review of past
cases based on clear and unmistakable error is the key
uncertainty in estimating the costs of the bill. Whether or not
the case involved such error, the demand would still add to
BVA's workload and costs because it would at least have to
screen the demands and document its conclusions. Nevertheless,
the current process for adjudicating veterans claims allows
many opportunities for appeal, and it is probable that most
veterans having claims pursue them under current law. CBO
estimates that up to 2,000 veterans would return to BVA for
reconsideration under the bill and add about $1 million to $2
million to BVA's administrative costs, currently about $38
million annually, during the first three years after enactment.
By their nature, claims of clear and unmistakable error, if
sustained, are very likely to lead to additional benefits to
the claimant. The bill would raise direct spending to the
extent that the cases involved such benefits as disability
compensation, pension benefits, or survivor benefits. Although
the extra administrative costs of the bill would not cumulate
from year to year, the additional benefits would be paid for
the life of the veteran or surviving beneficiary. How much
direct spending would rise depends on the caseload and average
award in benefits, both of which are very uncertain. Because
veterans have many opportunities under current law to appeal
claims decisions, CBO estimates that a small number of
additional cases would be successfully appealed under the bill.
Also, it is unlikely that the average annual benefit involved
in such a case would be more than $1,000 to $2,000. Thus, the
bill would probably increase direct spending by less than
$500,000 a year in 1998 and the next several years.
The CBO staff contact for this estimate is Mary Helen
Petrus, who can be reached at 226-2840. This estimate was
approved by Robert A. Sunshine, Deputy Assistant Director for
Budget Analysis.
Inflationary Impact Statement
The enactment of the reported bill would have no
inflationary impact.
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.
Statement of Constitutional Authority
Pursuant to Article I, section 8 of the U.S. Constitution,
the reported bill would be authorized by Congress' power ``(T)o
provide for the common Defence and general Welfare of the
Untied States.''
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.
* * * * * * *
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