[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.
* * * * * * *