[Senate Report 105-157]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 296
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-157
_______________________________________________________________________


 
 AMENDING TITLE 38, UNITED STATES CODE, TO ALLOW REVISION OF VETERANS 
        BENEFITS DECISIONS BASED ON CLEAR AND UNMISTAKABLE ERROR

                                _______
                                

               November 13, 1997.--Ordered to be printed

_______________________________________________________________________


 Mr.  Specter, from the Committee on Veterans' Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 464]

    The Committee on Veterans' Affairs, to which was referred 
the bill (S. 464) to allow revision of veterans benefits 
decisions based on clear and unmistakable error, having 
considered the same, reports favorably thereon and recommends 
that the bill do pass.

                             Committee Bill

    The text of the bill as reported is as follows:

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 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 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 enactment of this Act.

                              Introduction

    On March 18, 1997, Committee member Patty Murray introduced 
S. 464, a bill to allow revision of veterans benefits decisions 
based on clear and unmistakable error.
    On July 25, 1997, the Committee held a hearing to receive 
testimony on S. 464 and on other bills pending before the 
Committee. The Committee received testimony from Senator Daniel 
K. Inouye, Senator Barbara Boxer, Representative Bob Filner, 
and Representative Benjamin A. Gilman, and received testimony 
for the record from Representative Sue W. Kelly. The Committee 
also received testimony from Stephen L. Lemons, Ed.D., VA's 
Acting Under Secretary for Benefits, Thomas L. Garthwaite, 
M.D., VA's Deputy Under Secretary for Health, and from 
representatives of The American Legion, Veterans of Foreign 
Wars, Disabled American Veterans, and Vietnam Veterans of 
America. Testimony was also submitted for the record of the 
hearing by the Office of Veterans Affairs, Philippine Embassy; 
Paralyzed Veterans of America; AMVETS; the American Coalition 
for Filipino Veterans; the Coordinating Council of Leaders of 
Veterans Organizations in Southern California; Filipino War 
Veterans, Incorporated; the National Coalition for Homeless 
Veterans; and LA Vets.
    Some of the witnesses expressed views on S. 464; some did 
not. Among those who expressed views on S. 464, there was an 
absence of consensus. The American Legion, Veterans of Foreign 
Wars, Disabled American Veterans, Paralyzed Veterans of 
America, AMVETS, and Vietnam Veterans of America expressed 
support for S. 464. VA opposed enactment of S. 464.

                           Committee Meeting

    After carefully reviewing the testimony from the July 25, 
1997, hearing, the Committee met in open session on October 7, 
1997, and voted by unanimous voice vote to report S. 464 
favorably to the Senate.

                               Discussion

                               background

    The Department of Veterans Affairs (VA) determines 
eligibility for veterans benefits through its adjudication 
process. There are two major administrative steps in the 
process. VA's Veterans Benefits Administration (VBA) initially 
processes claims through its 57 regional offices. Claimants who 
choose to do so may appeal regional office decisions once to 
VA's Board of Veterans' Appeals (BVA) by filing a ``notice of 
disagreement.'' Generally, a claimant's notice of disagreement 
must be filed within 1 year of the date when the decision to be 
appealed was mailed to the claimant by the regional office. BVA 
decisions on appeals are de novo; that is, they are based on 
the Board's consideration of the entire record and upon 
consideration of all evidence of record. To gain such review, 
the substantive appeal must be perfected subsequent to the 
submission of a notice of disagreement filed within 1 year of 
the decision being appealed.
    BVA decisions are subject to appeal by claimants to the 
U.S. Court of Veterans Appeals (CVA), an Article I court 
created by Public Law 100-687 (November 18, 1988). Pursuant to 
section 402 of Public Law 100-687, however, CVA only has 
authority to review BVA decisions rendered in cases for which 
the notice of disagreement giving rise to BVA jurisdiction was 
filed on or after November 18, 1988, the date of enactment of 
Public Law 100-687.
    Regional office decisions are final and binding. However, 
pursuant to regulations adopted by VA, final decisions will be 
reversed or amended where evidence establishes that there has 
been clear and unmistakable error. CVA has ruled that ``clear 
and unmistakable error'' is error that is obvious and was 
outcome-determinative with respect to the decision under 
review. Russell v. Principi, 3 Vet. App. 310 (1992). A claim 
that evidence was improperly weighed or evaluated ``can never 
rise to the stringent definition of clear and unmistakable 
error.'' Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). 
``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' '' rise to the 
level of clear and unmistakable error. Id. Moreover, claimants 
cannot reopen a clear and unmistakable error claim with new and 
material evidence. Flash v. Brown, 3 Vet. App. 310 (1992). In 
cases where clear and unmistakable error has resulted in the 
denial of benefits, benefits are awarded retroactively to the 
date that the underlying claim was filed.
    VA authority to correct clear and unmistakable error, and 
to make retroactive awards of benefits in cases where clear and 
unmistakable error is found, is a product of VA regulation. 
There is no independent statutory directive requiring VA to 
adopt such a standard for correcting error.
    Prior to 1994, claimants could assert that either a 
regional office decision or a BVA decision contained clear and 
unmistakable error, and they could assert that claim before a 
regional office. However, in Smith v. Brown, 35 F.3d 1516 (Fed. 
Cir. 1994), the Court ruled that VA's regulation-based clear 
and unmistakable error authority applies only to regional 
office decisions, and that BVA decisions are final unless 
reconsideration is ordered by the BVA Chairman or they are 
reversed or remanded by CVA. The Court noted that a body akin 
to a trial court (a regional office) does not properly review 
decisions rendered by an appellate body (BVA) that has 
jurisdiction over it.
    Since Smith, claimants who perceive clear and unmistakable 
error--indeed, who perceive any error in a post-Smith regional 
office decision--may gain review of their claims at BVA. They 
must, however, file a notice of disagreement within 1 year of 
the alleged erroneous regional office decision. After the 
expiration of that period, they may not seek BVA review. The 
only review option open to them is at the regional office, and 
there they must meet a very high standard of review--clear and 
unmistakable error.
    Those who believe that a BVA decision contains clear and 
unmistakable error may, since Smith, appeal to CVA, but only if 
the BVA decision in question arose from a case where the 
claimant filed his or her notice of disagreement on or after 
November 18, 1988, and the notice of appeal to CVA was filed 
within 120 days of the BVA decision. Claimants having older BVA 
decisions cannot effectively assert clear and unmistakable 
error as a matter of right. Such a claim, however, may be 
reconsidered by the Board on order of the Board's Chairman, and 
if it is reconsidered, it may be modified or reversed by the 
Board on the basis of obvious error, new or material evidence, 
or a finding that BVA was materially influenced by fraudulent 
evidence. If obvious error is found, BVA may grant retroactive 
benefits. The Chairman's decision to reconsider a claim is 
discretionary; it may not be appealed.
    During fiscal years 1991 through 1996, approximately 4,500 
motions for reconsideration were submitted to the Chairman of 
BVA, and of these, more than 900 were reconsidered. In 
approximately 75 percent of these 900+ reconsidered cases, the 
Board either allowed the claim or remanded the claim back to 
the regional office.

                             Committee Bill

    The Committee bill would accomplish two purposes. First, it 
would codify, in statute, the allowance currently specified by 
regulation: that regional offices may reopen, revise, and 
reverse prior decisions based on a finding of ``clear and 
mistakable error.'' Second, the Committee bill would authorize 
claimants, as a matter of right, to appeal prior BVA decisions 
to BVA, without regard to the generally applicable 1-year 
limitation period, upon alleging that the appealed decision 
contains ``clear and unmistakable error.''

                             Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the Committee, based on 
information supplied by Congressional Budget Office (CBO), 
estimates that, compared to the CBO baseline, there would be no 
costs or savings resulting from enactment of the Committee 
bill.
    The cost estimate provided by CBO follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 8, 1997.
Hon. Arlen Specter,
Chairman, Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 464, a bill to amend 
title 38, United States Code, to allow revision of veterans 
benefits decisions based onclear 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.
            Sincerely,
                                         June E. O'Neill, Director.
    Enclosure.

S. 464--a bill to amend title 38, united states code, to allow revision 
  of veterans benefits decisions based on clear and unmistakable error

    Summary: CBO estimates that S. 464 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. S. 464 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 offices. Other sections of 
the bill would give certain veterans new rights and 
opportunities for appeal. Under current law, a veteran may 
appeal a regional office'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 to 
allow or not allow 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 sucha 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. This estimate was approved by Robert A. Sunshine, 
Deputy Assistant Director for Budget Analysis.

                      Regulatory Impact Statement

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee on Veterans' 
Affairs has made an evaluation of the regulatory impact that 
would be incurred in carrying out the Committee bill. The 
Committee finds that the Committee bill would not entail any 
regulation of individuals or businesses or result in any impact 
on the personal privacy of any individuals, and that the 
paperwork resulting from enactment would be minimal.

                 Tabulation of Votes Cast in Committee

    In compliance with paragraph 7 of rule XXVI of the Standing 
Rules of the Senate, the following is a tabulation of votes 
cast in person or by proxy by members of the Committee on 
Veterans' Affairs at its October 7, 1997, meeting. On that 
date, the Committee, by unanimous voice vote, ordered S. 464, 
as amended, reported favorably to the Senate.

                             Agency Report

    On July 25, 1997, Stephen L. Lemons, Ed.D., Acting Under 
Secretary for Benefits, Department of Veterans Affairs, 
submitted testimony on, among other things, S. 464. An excerpt 
from that testimony is reprinted below:

 Statement of Honorable Stephen L. Lemons, Acting Under Secretary for 
                Benefits, Department of Veterans Affairs

    Mr. Chairman and Members of the Committee: I am pleased to 
be here this morning to discuss those items on your agenda that 
would impact the Veterans Benefits Administration, the National 
Cemetery System, and the Board of Veterans' Appeals. Your 
letter of invitation asked that we address each of the 
following bills and draft proposals: S. 987 (VA requested draft 
legislation proposing a compensation cost-of-living adjustment 
and other program improvements); S. 464; S. 623; S. 714; S. 
730; Committee Print (to increase the Medal of Honor pension); 
S. 813; S. 986 (VA requested draft legislation proposing home 
loan program improvements); Committee Print (to make technical 
amendments to Public Law 104-275); and Committee Print 
(codification of FY 1997 cost-of-living adjustment legislation, 
Pub. L. No. 104-263).
          * * * * * * *


s. 464--revision of bva decisions based on clear and unmistakable error


    Mr. Chairman, S. 464 would amend title 38, United States 
Code to allow the revision of veterans benefits decisions by 
the Board of Veterans' Appeals based on clear and unmistakable 
error. A substantively identical bill, H.R. 1090, was passed by 
the House of Representatives on April 16, 1997. We oppose each 
of these bills because they fail the most important test for 
sound veterans legislation: they would not be good for 
veterans.
    Section 1(a) of both bills would provide by statute what VA 
already provides for in regulations governing our claims-
adjudication process: that claim decisions by agencies of 
original jurisdiction (primarily, VA regional offices) are 
subject to revision at any time on the grounds of clear and 
unmistakable error, and that 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 corrected 
decision. Although we have no particular objections to 
codifying in statute what is already provided for in 
regulations (38 C.F.R. Sec. Sec. 3.105(a)), section 1(a) of 
these bills is, as a matter of law, unnecessary.
    Our opposition to these bills is based on sections 1(b) and 
1(c) of each, which would drastically change current law 
regarding review of decisions by the Board of Veterans Appeals. 
These provisions would require the Board to review and 
adjudicate, on demand, petitions alleging clear and 
unmistakable error in any Board decisions ever made--regardless 
how long ago, and regardless of the petitions' lack of merit. 
Board decisions on any such petitions pending before it or a 
reviewing court on the date of enactment of either bill, or 
filed with the Board thereafter, would be subject to review by 
the Court of Veterans Appeals.
    The bills' potential for deluging the Board--already 
struggling to achieve acceptable response times--with cases 
lacking merit is patently obvious. And, of course, Board 
decisions are already subject to review for error in two ways: 
on motions to the Chairman for reconsideration (at any time) 
and, for decisions in administrative appeals initiated on or 
after November 18, 1988, by judicial review. In past 
Congresses, the Senate has carefully considered and rejected 
legislation such as S. 464 and H.R. 1090. With each passing 
year, the percentage of past Board decisions which have been 
subject to judicial review increases, making the legislation 
even less compelling. However, our opposition is based 
primarily on the adequacy of the current administrative remedy 
for curing error--reconsideration by the Board--and the bills' 
great potential for clogging the Board's stream of regular 
appellate casework, delaying resolution of appeals filed by 
deserving veterans whose cases have yet to be even initially 
addressed by the Board.
    Section 7103 of title 38 authorizes the Chairman of the 
Board to order reconsideration of any Board decision on either 
the Chairman's own initiative or on motion of the claimant. 
Under departmental regulations (38 CFR Sec. 20.1000), the Board 
may accord reconsideration based on allegations that its 
challenged prior decisions resulted from ``obvious error of 
fact or law--a standard the U.S. Court of Appeals for the 
Federal Circuit has equated with clear and unmistakable error. 
Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994).
    Reconsideration is not a hollow remedy. For FY's 1991 
through 1996, the Board granted 907 motions for 
reconsideration--19% of the motions filed--and its decisions on 
reconsideration resulted in 328 outright benefit allowances and 
334 remands of cases to the originating agencies for further 
consideration. The combined allowance and remand rate for cases 
reconsidered was 73%. The Board does reconsider prior decisions 
and does not hesitate to rectify problems in them as they are 
identified. We believe it is telling that proponents of this 
legislation have not, in the five years it has been under 
consideration by the Congress, been able to identify even a 
single instance involving true ``clear and unmistakable error'' 
in a prior Board decision the Board has declined to correct.
    These bills are, frankly, a solution without a problem.
    Given the remedies already available for correcting these 
errors, enactment of this legislation would be unlikely to 
benefit claimants and would carry the very real risk of 
increasing considerably the time all appellants must wait for 
Board decisions. No one knows how many additional Board 
decisions these bills would generate. Nevertheless, additional 
cases necessarily increase the time it takes for the Board to 
respond. Unless no appellants availed themselves of the 
proposed procedure, enactment of either bill would perforce 
degrade the Board's ability to decide appeals in a timely 
manner.
    In reporting favorably on H.R. 1090, the House Committee on 
Veterans' Affairs stated as follows:

          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.

    H.R. Rep. 105-52 (April 18, 1997). In addition to the fact 
that VA's appellate system already allows claimants ``to argue 
that a clear and unmistakable error has occurred in a prior 
decision'', the report is inaccurate in suggesting the Social 
Security system is more amenable to correction of clear and 
unmistakable error. It is true that, under 20 C.F.R. 
Sec. 404.988(c)(8), a claimant can request at any time that 
Social Security reopen a disability determination to correct 
either a clerical error or an error that appears on the face of 
the evidence considered when the determination was made. What 
is not stated in the Committee report is that Social Security 
decisions not to reopen a case are not subject to judicial 
review. Califano v. Sanders, 430 U.S. 99, 107-09 (1977); 
accord, e.g., King v. Chater, 90 F. 3d 323, 325 (8th Cir. 
1996). Indeed, such determinations are not even subject to 
further administrative review within the Social Security 
Administration. 20 C.F.R. Sec. 404.903(l). At the same time, 
Social Security claimants have only four years to reopen a 
claim based on ``new and material evidence.'' 20 C.F.R. 
Sec. 404.988(b). There is, of course, no such time limit for VA 
claimants.
    In other words, these bills would not, contrary to the 
implication of the House report, make VA's system like Social 
Security's or, indeed, like any American claims-adjudication 
system with which we are familiar. Instead, it would compel the 
Board to reopen and readjudicate settled cases regardless of 
their merit.
    Because of this legislation's very low potential for 
actually benefiting anyone, we cannot countenance the 
diminution of service to veterans--longer waits for resolution 
of their appeals--that would be its inevitable consequence. 
Accordingly, the Department opposes enactment of S. 464 and 
H.R. 1090.
          * * * * * * *

          Changes in Existing Law Made by S. 464, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Committee bill, as reported, are shown as follows (existing 
law proposed to beomitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                      TITLE 38--VETERANS' BENEFITS

          * * * * * * *

               PART IV--GENERAL ADMINISTRATIVE PROVISIONS

          * * * * * * *

           CHAPTER 51--CLAIMS, EFFECTIVE DATES, AND PAYMENTS

          * * * * * * *

                          Subchapter I--Claims

          * * * * * * *
Sec. 5101. * * *
     * * * * * * *
5109A. Revision of decisions on grounds of clear and unmistakable error.
     * * * * * * *

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. * * *
     * * * * * * *
7111. Revision of decisions on grounds of clear and unmistakable error.
     * * * * * * *

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.
          * * * * * * *