[Federal Register Volume 63, Number 96 (Tuesday, May 19, 1998)]
[Proposed Rules]
[Pages 27534-27541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13197]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 20
RIN 2900-AJ15
Board of Veterans' Appeals: Rules of Practice--Revision of
Decisions on Grounds of Clear and Unmistakable Error
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) proposes to amend the
Rules of Practice of the Board of Veterans' Appeals (Board) to
implement the provisions of section 1(b) of Pub. L.
[[Page 27535]]
105-111 (Nov. 21, 1997), which permits challenges to Board decisions on
the grounds of ``clear and unmistakable error'' (CUE). The amendments
would provide specific application procedures; establish decision
standards based on case law; and eliminate as duplicative the Board
Chairman's discretionary review under ``reconsideration'' on the basis
of obvious error. These changes are necessary to implement the new
statutory provisions, which permit a claimant to demand review by the
Board to determine whether CUE exists in an appellate decision
previously issued by the Board, with a right of review of such
determinations by the U.S. Court of Veterans Appeals.
DATES: Comments must be received on or before July 20, 1998.
ADDRESSES: Mail or hand-deliver written comments to: Director, Office
of Regulations Management (02D), Department of Veterans Affairs, 810
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should
indicate that they are submitted in response to ``RIN 2900-AJ15.'' All
written comments will be available for public inspection at the above
address in the Office of Regulations Management, Room 1158, between the
hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays).
FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Chief Counsel, Board
of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont
Avenue, NW, Washington, DC 20420, (202) 565-5978.
SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals (Board) is an
administrative body that decides appeals from denials of claims for
veterans' benefits. There are currently 60 Board members, who decide
35,000 to 40,000 such appeals per year.
This document proposes to amend the Board's Rules of Practice to
implement the provisions of section 1(b) of Pub. L. 105-111 (Nov. 21,
1997), which permits a claimant to demand review by the Board to
determine whether ``clear and unmistakable error'' (CUE) exists in an
appellate decision previously issued by the Board, with a right of
review of such determinations by the U.S. Court of Veterans Appeals.
The VA Appeals Process in General
The Secretary of Veterans Affairs decides all questions of law and
fact necessary to a decision under a law that affects the provision of
benefits by the Secretary to veterans, or the dependents or survivors
of veterans. 38 U.S.C. 511(a). The Secretary has delegated most of
these decisions to ``agencies of original jurisdiction'' (AOJs),
typically the 58 regional offices (ROs) maintained by the Department of
Veterans Affairs (VA). See 38 CFR 2.6(b) (delegation to Under Secretary
for Benefits).
Decisions under 38 U.S.C. 511(a) are subject to one review on
appeal to the Secretary. 38 U.S.C. 7104(a). Final decisions on those
appeals are made by the Board. Id. A decision by an AOJ that is not
appealed within one year becomes final, and can be reopened only with
``new and material evidence.'' 38 U.S.C. 5108, 7105(c).
The appeals process begins when a claimant files a ``notice of
disagreement,'' which must be filed within one year of the decision. 38
U.S.C. 7105 (a) and (b). The VA office that made the decision reviews
the claim and, if benefits are not granted, provides the claimant with
a ``statement of the case.'' Id. 7105(d)(1). The claimant then must
file a formal appeal with the Board. Id. 7105(d)(3). The Board decides
appeals on the entire record in the case. Id. 7104(a). The Board may
make a final decision--allowing or denying the appeal--or may remand
the matter to the AOJ for development of additional factual material.
38 CFR 19.9.
If an appellant does not agree with the Board's final decision, and
the notice of disagreement in the case was filed on or after November
18, 1988, the appellant has 120 days to appeal the Board's decision to
the U.S. Court of Veterans Appeals. 38 U.S.C. 7266(a); Pub. L. 100-687,
Div. A, Sec. 402, reprinted at 38 U.S.C. 7251 note. (As enacted, the
Veterans' Judicial Review Act, which established the Court of Veterans
Appeals, permitted judicial review of Board decisions only in cases in
which a notice of disagreement was filed on or after the effective date
of the Act, i.e., November 18, 1988.)
Other Remedies
Once a VA decision has become final--whether by completion or
abandonment of the appeals process described above--there are,
generally, three ways to revive the claim.
First, if a claimant submits new and material evidence, VA will
reopen and reconsider the claim. 38 U.S.C. 5108. Such claims are
subject to the full range of appellate procedures described above.
Second, if a claim decision is final because there was never a
formal appeal filed with the Board, and the determination was made by
an RO, a claimant may allege that the decision was the result of CUE.
38 CFR 3.105(a). Such claims are subject to the full range of appellate
procedures described above. Russell v. Principi, 3 Vet. App. 310
(1992). However, prior to enactment of Pub. L. 105-111, a final
unappealed RO decision that is subsequently reopened with new and
material evidence and adjudicated on the merits by the Board could not
later be the subject of a claim of CUE. Donovan v. Gober, 10 Vet. App.
404 (1997).
Finally, if there has been a final Board decision on a claim, an
appellant may request that the Chairman of the Board order
``reconsideration'' under 38 U.S.C. 7103. If the Chairman orders
reconsideration, the prior decision is vacated, and a panel of Board
members makes a new decision based on the entire record. The panel
decision is subject to appeal to the Court of Veterans Appeals only if
the notice of disagreement filed in connection with the original matter
was filed on or after November 18, 1988. The Chairman's decision not to
grant reconsideration is not subject to appeal independently of the
underlying Board decision. Mayer v. Brown, 37 F.3d 618, 620 & n.3 (Fed.
Cir. 1994) (holding that there was no jurisdiction to review the
Chairman's denial of a motion for reconsideration absent jurisdiction
over the underlying Board decision, but reserving judgment on the issue
of whether the Chairman's decision can ever be subject to judicial
review).
Board decisions are not subject to a CUE challenge under 38 CFR
3.105(a). Smith (William) v. Brown, 35 F.3d 1516, 1521 (Fed. Cir.
1994). Further, unappealed RO decisions can be ``subsumed'' in
subsequent Board decisions, so that the RO decisions are no longer
subject to the review otherwise available under 38 CFR 3.105(a).
Donovan v. Gober, 10 Vet. App. 404 (1997).
``Clear and Unmistakable Error''
The term ``clear and unmistakable error'' originated in veterans
regulations some 70 years ago, see generally Smith (William) v. Brown,
35 F.3d 1516, 1524-25 (Fed. Cir. 1994), and is now incorporated in VA
regulations governing VA RO determinations. 38 CFR 3.105(a). The term
has been interpreted by the Court of Veterans Appeals over the past
several years.
CUE is a very specific and rare kind of error. Fugo v. Brown, 6
Vet. App. 40, 43 (1993). 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. Fugo, 6 Vet.
App. at 43.
A determination that there was CUE must be based on the record and
the law
[[Page 27536]]
that existed at the time of the prior decision. Russell v. Principi, 3
Vet. App. 310, 314 (1992). Either the correct facts, as they were known
at the time, were not before the adjudicator or the statutory or
regulatory provisions extant at the time were incorrectly applied.
Russell, 3 Vet. App at 313. With respect to Board decisions issued on
or after July 21, 1992, the Court of Veterans Appeals has held that
documents which were actually in VA's possession--even though not
physically before the adjudicator--are constructively a part of the
record. Bell v. Derwinski, 2 Vet. App. 611 (1992); Damrel v. Brown, 6
Vet. App. 242, 245-46 (1994).
In order for there to be a valid claim of CUE, there must have been
an error in the prior adjudication of the appeal which, had it not been
made, would have manifestly changed the outcome at the time it was
made. Russell, 3 Vet. App. at 313. 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 clear and
unmistakable. Fugo, 6 Vet. App. at 43-44.
A new medical diagnosis that ``corrects'' an earlier diagnosis
ruled on by previous adjudicators is the kind of ``error'' that could
not be considered an error in the original adjudication. Russell, 3
Vet. App. at 314. A claim of CUE that asserts no more than a
disagreement as to how the facts were weighed or evaluated is
insufficient. Russell, 3 Vet. App. at 313. Mere allegations of failure
to follow regulations or failure to give due process, or any other
general, non-specific claims of error, are insufficient to raise a
claim of CUE. Fugo, 6 Vet. App. at 44. An allegation that the Secretary
did not fulfill the duty to assist is insufficient to raise the issue
of CUE. E.g., Crippen v. Brown, 9 Vet. App. 412, 418 (1996).
Once there is a final decision on the issue of CUE because the RO
decision was not timely appealed, or because a Board decision not to
revise or amend the original RO decision was not appealed, or because
the Court of Veterans Appeals has rendered a decision on the issue in
that particular case, that particular claim of CUE may not be raised
again. Russell, 3 Vet. App. at 315.
The ``benefit of the doubt'' rule of 38 U.S.C. 5107(b) does not
apply to determinations as to whether there was CUE. Russell, 3 Vet.
App. at 314.
``Two Tracks'' for CUE Claims
The Court of Veterans Appeals has held that it has jurisdiction to
review claims of CUE with respect to RO determinations based on the
regulatory right assigned in 38 CFR 3.105(a). Russell v. Principi, 3
Vet. App. 310 (1992).
However, the CUE challenge available under 38 CFR 3.105(a) does not
apply to Board decisions. Smith (William) v. Brown, 35 F.3d 1516, 1521
(Fed. Cir. 1994); Wright v. Brown, 9 Vet. App. 300, 303-04 (1996).
Because an RO decision appealed to the Board is ``subsumed'' in a Board
decision on the merits, such an RO decision would no longer be subject
to a CUE challenge. Donovan v. Gober, 10 Vet. App. 404 (1997). The
Court has held that even unappealed RO decisions are ``subsumed''--and
thus not subject to CUE challenges--if such claims are later reopened
and decided on the merits by the Board. Chisem v. Gober, 10 Vet. App.
526 (1997).
The Effect of the Legislation
Section 1(b) of Pub. L. 105-111 changed existing law by providing
that a decision by the Board is subject to revision on the grounds of
CUE. The statute provides that such review may be instituted by the
Board on the Board's own motion or upon request of the claimant, and
that such a request may be made at any time after the Board decision is
made. The Board is to decide all such requests on the merits, without
referral to any adjudicative or hearing official acting on behalf of
the Secretary.
The statute also provides that, notwithstanding the notice of
disagreement requirements for judicial review (described earlier in
this document), judicial review is available with respect to any Board
decision on a claim alleging that a previous determination of the Board
was the product of CUE if that claim is 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 the enactment of
the Act (November 21, 1997).
The legislative history of H.R. 1090, 105th Congress, which became
Pub. L. 105-111, indicates that the Congress expected the Department
would implement section 1(b) of the bill in accordance with current
definitions of CUE. H.R. Rep. No. 52, 105th Cong., 1st Sess. 3 (1997)
(report of House Committee on Veterans' Affairs on H.R. 1090) (``Given
the Court's clear guidance on this issue [of CUE], 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''); 143 Cong. Rec. 1567, 1568 (daily ed. Apr. 16, 1997)
(remarks of Rep. Evans, sponsor of H.R. 1090, in connection with House
passage) (``The bill does not alter the standard for evaluation of
claims of clear and unmistakable error'').
Implementing Regulations
The proposed regulations restate statutory provisions, restate
legal standards reflecting court decisions, and establish procedures
for requesting revision of a Board decision.
The proposed regulations would also eliminate the use of the
Board's reconsideration process for challenges based on ``obvious
error,'' 38 CFR 20.1000(a), while continuing that process based on (1)
the discovery of new and material evidence in the form of relevant
records or reports of the service department concerned, or (2) an
allegation that an allowance of benefits by the Board has been
materially influenced by false or fraudulent evidence submitted by or
on behalf of the appellant. Since the ``obvious error of fact or law''
standard of current 38 CFR 20.1000(a) is the same standard as that of
CUE, Smith (William) v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994), and
since the new remedy under Pub. L. 105-111 provides for a Board
decision and judicial review, there is no longer any need--particularly
in light of the Board's limited resources--for what is a duplicative
remedy.
Accordingly, the proposed regulations would amend 38 CFR 20.1000,
relating to motions for reconsideration, by deleting paragraph (a),
which provides that obvious error of fact or law is a basis for
reconsideration. The proposed regulations would also amend 38 CFR
20.1001(a), relating to filing motions for reconsideration, to
eliminate a reference to allegations of obvious errors of fact or law.
The proposed regulations would create a new subpart O in part 20 of
title 38, Code of Federal Regulations, devoted specifically to revision
of Board decisions on grounds of CUE.
Proposed Rule 1400 (38 CFR 20.1400) would begin the review process
with a motion, either by a party to the decision being challenged or by
the Board. In addition, because it would be inappropriate for an
inferior tribunal to review the actions of a superior, Smith (William)
v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994); Duran v. Brown, 7 Vet.
App. 216, 224 (1994), the rule would provide that a Board decision on
an issue decided by a court of competent jurisdiction on appeal is not
subject to revision on the grounds of clear and unmistakable error.
Proposed Rule 1401 (38 CFR 20.1401) would define the terms
``issue'' and
[[Page 27537]]
``party'' for purposes of the proposed subpart. Generally, the term
``issue'' would be defined as a matter upon which the Board made a
final decision (other than a decision under the proposed subpart) which
was appealable under Chapter 72 of title 38, United States Code, or
which would have been appealable if the Notice of Disagreement with
respect to such matter had been received by the agency of original
jurisdiction on or after November 18, 1988. The purposes of this
definition are to clarify (1) that only final, outcome-determinative
decisions of the Board are subject to revision on the grounds of CUE,
so as to avoid, in the interests of judicial economy, atomization of
Board decisions into myriad component parts; and (2) the scope of the
finality referred to in proposed Rule 1409(c) (38 CFR 20.1409(c)),
discussed later in this document. For example, since a Board remand is
in the nature of a preliminary order and does not constitute a final
Board decision, Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), aff'd,
102 F.3d 1236 (Fed. Cir. 1996), cert. denied, 117 S. Ct. 2478 (1997);
38 CFR 20.1100(b), it is not appealable under Chapter 72 of title 38,
United States Code, and would not be subject to revision on the grounds
of CUE. Similarly, since the jurisdiction of the Court of Veterans
Appeals is limited to ``decisions'' of the Board, 38 U.S.C. 7252(a),
individual findings of fact or conclusions of law, 38 U.S.C.
7104(d)(1), would not be subject to revision on the grounds of CUE
except as part of such revision of the decision they support. At the
same time, as discussed in connection with proposed Rule 1409 later in
this document, once there is a final decision on a motion under this
proposed subpart, the prior Board decision on the underlying ``issue''
would no longer be subject to revision on grounds of CUE.
Proposed Rule 1401 would also define ``party'' as any party to the
Board proceeding that resulted in the final Board decision which is the
subject of a motion under the proposed subpart. Because 38 U.S.C.
7111(c), as added by Pub. L. 105-111, limits the right to initiate CUE
review to the Board and to claimants, the term would not include
officials authorized to file administrative appeals pursuant to
Sec. 19.51 of this title.
Proposed Rule 1402 (38 CFR 20.1402) would clarify that motions
under proposed subpart O are not appeals and, accordingly, not subject
to the provisions of parts 19 and 20 of Chapter I, Title 38, Code of
Federal Regulations, to the extent those provisions relate to the
processing and disposition of appeals.
Proposed Rule 1403 (38 CFR 20.1403) would set forth the standards
for what constitutes CUE, as well as the record to be reviewed. The
various standards and the specific examples of situations that are not
CUE are drawn directly from court opinions cited earlier in this
document under the heading ``Clear and Unmistakable Error.'' In
addition, the rule would provide that CUE does not include the
otherwise correct application of a statute or regulation where,
subsequent to the Board decision challenged, there has been a change in
the interpretation of the statute or regulation. This latter provision
is borrowed in part from 38 CFR 3.105, discussed earlier in this
document, relating to CUE in RO decisions. An interpretation of a
statute or regulation could, in light of future interpretations--
whether by the General Counsel or a court--be viewed as erroneous. That
would not, however, be the kind of error required for CUE, i.e., an
error about which reasonable persons could not differ. See VAOPGCPREC
25-95, 61 FR 10,063, 10,065 (1996) (holding that the Board's
application of a subsequently invalidated regulation in a decision does
not constitute obvious error or provide a basis for reconsideration of
the decision).
Proposed Rule 1404 (38 CFR 20.1404) would establish filing and
pleading requirements for motions for revision of a Board decision
based on CUE. The rule would require specific pleading of the error,
and provide that motions which fail to do so would be denied, although
motions that merely fail to identify the claimant, the Board decision
challenged, or the issue(s) being challenged, or which are unsigned,
would be dismissed without prejudice to a proper filing. The proposed
rule would also provide that a request transmitted to the Board by the
Secretary pursuant to 38 U.S.C. 7111(f) (generally relating to claims
for CUE filed with the Secretary) would be treated as a motion filed
under this rule.
Proposed Rule 1405 (38 CFR 20.1405) would provide that motions to
revise Board decisions on the grounds of CUE would be docketed in the
order received and be assigned in accordance with the appellate
assignment procedures in 38 CFR 19.3. The proposed rule, following the
current standards applicable to reconsideration decisions, would
prohibit assignment of the motion to any Board member who participated
in the decision which is the subject of the motion. 38 U.S.C.
7103(b)(2); 38 CFR 19.11(c). Since a CUE determination must be made on
the facts before the Board at the time the original decision was made,
the rule would also provide that no new evidence would be considered in
connection with the motion (although material included on the basis of
proposed Rule 1403(b)(2), discussed above, would not be considered new
evidence) and that the Board may, for good cause shown, grant a request
for a hearing for the purpose of argument only. Nevertheless, the
proposed rule would permit the Board, subject to the limitation on new
evidence, to use the various AOJs to ensure completeness of the record.
The Board would also be permitted to seek the opinion of the General
Counsel, with notice to the party to the decision and an opportunity to
respond. In accordance with the specific requirements of the new
statute, the rule would prohibit referral of the motion to the AOJ or
any hearing officer acting on behalf of the Secretary for the purpose
of making a decision. Finally, in order to facilitate judicial review,
the rule would require decisions on these motions to include separately
stated findings of fact and conclusions of law, and the reasons and
bases for those findings and conclusions. Cf. 38 U.S.C. 7104(d); 38 CFR
19.7(b) (``reasons and bases'' requirement for appellate decisions).
Proposed Rule 1406 (38 CFR 20.1406), following the new statute,
would provide that a decision of the Board that revises a prior Board
decision on the grounds of CUE has the same effect as if the decision
had been made on the date of the prior decision. The proposed rule
would also provide that decisions that discontinue or reduce benefits
would be subject to the laws and regulations governing such
discontinuances or reductions based solely on administrative error or
errors in judgment. See generally 38 U.S.C. 5112(b)(10) (reduction or
discontinuance on such bases effective on the date of last payment).
Proposed Rule 1407 (38 CFR 20.1407) would provide special
procedural rules in those cases where the Board, on its own motion,
reviews a prior decision on the grounds of CUE. The rule would provide
for notification to the party to the prior Board decision and that
party's representative, with a period of 60 days to file a brief or
argument. Nevertheless, failure of a party to so respond would not
affect the finality of the Board's decision on the motion.
Proposed Rule 1408 (38 CFR 20.1408) would provide special rules in
the case of challenges to Board decisions in simultaneously contested
claims. See 38 U.S.C. 7105A. Generally, the rule would require notice
to all parties to such
[[Page 27538]]
Board decisions, with limited time for non-moving parties to respond.
Proposed Rule 1409 (38 CFR 20.1409), in accordance with the
discussion under ``Clear and Unmistakable Error'' earlier in this
document, would provide that, once there is a final decision on a
motion under the proposed subpart--whether initiated by a party or by
the Board--with respect to a particular issue, the prior Board decision
on that issue would no longer be subject to revision on the grounds of
CUE and that subsequent motions on such decisions would be dismissed
with prejudice. For example, if a party challenged a decision on
service connection for failing to apply the proper diagnostic code in
the Schedule for Rating Disabilities, 38 CFR part 4, and the Board
denied the motion, a subsequent motion which alleged that the Board
failed to apply the presumption of sound condition at the time of entry
into service, 38 U.S.C. 1111, would be dismissed with prejudice. It
would be clearly important that a moving party carefully determine all
possible bases for CUE before he or she files a motion under the
proposed subpart. Since the effect of a successful challenge is the
same no matter when the motion is filed, i.e., the revision has the
same effect as if the decision had been made on the date of the earlier
decision, there is no particular filing date that must be observed in
order to maximize potential benefits. At the same time, because, as the
court has observed, CUE is a ``very specific and rare kind of error,''
Fugo v. Brown, 6 Vet. App. 40, 43 (1993), and because the availability
of a CUE challenge does not mean that the issue may be ``endlessly
reviewed,'' Russell v. Principi, 3 Vet. App. 310, 315 (1992) (en banc),
we believe that one challenge per decision on an issue is justified not
only as a proper statement of the law, but also as a rule serving the
interests of judicial economy. The rule would also clarify that a
dismissal without prejudice under proposed Rule 1404(a) or a referral
to ensure completeness of the record under proposed Rule 1405(e) would
not be a final decision of the Board.
Proposed Rule 1410 (38 CFR 20.1410) would provide that, if a Board
decision is appealed to a court of competent jurisdiction, the Board
will stay any consideration of a motion under this subpart with respect
to that Board decision. Generally, once a case has been certified for
appeal to the court on a particular issue, the Board no longer has
jurisdiction. Cerullo v. Derwinski, 1 Vet. App. 195 (1991). Processing
of the motion under proposed subpart O would continue upon conclusion
of the court appeal or an appropriate order from the court.
Proposed Rule 1411 (38 CFR 20.1411) would set forth the
relationship between motions under proposed subpart O and certain other
statutes. First, in accordance with the discussion under ``Clear and
Unmistakable Error'' earlier in this document, the rule would provide
that the ``benefit of the doubt'' rule of 38 U.S.C. 5107(b) would not
apply to determinations as to whether there was CUE. Second, because
review under this proposed subpart is limited to the evidence of record
at the time of the Board decision challenge, and because a motion under
this subpart would be a collateral challenge to a Board decision rather
than a ``claim'' for benefits, cf. Duran v. Brown, 7 Vet. App. 216,
223-24 (1994) (claim of CUE is a collateral attack on a prior final VA
decision), the rule would also provide that a motion under this subpart
is not a claim subject to reopening under 38 U.S.C. 5108 (relating to
reopening claims on the grounds of new and material evidence). Third,
because a motion under proposed subpart O is a statutory challenge to
an otherwise final Board decision rather than an ``application for
benefits,'' the rule would provide that the notification requirements
in 38 U.S.C. 5103(a) (relating to applications for benefits) would not
apply to such motions. Finally, because a motion would not be a claim
for benefits, and because the notion of a ``well-grounded claim'' would
be irrelevant to a motion under proposed subpart O, the rule would
provide that the ``duty to assist'' requirements in 38 U.S.C. 5107(a)
(relating to VA's duty following the filing of a well-grounded claim)
would not apply to such motions.
Attorney Fees
The proposed regulations would also add a new paragraph (4) to Rule
609(c) (38 CFR 20.609(c), relating to payment of a representative's
fees in connection with VA proceedings), which would provide that the
term ``issue'' referred to in Rule 609(c) would have the same meaning
as that term in proposed Rule 1401(a), discussed earlier in this
document.
Generally, attorneys may charge a fee in connection with VA
proceedings only if (1) there has been a final Board decision on the
issue (or issues) involved; (2) the Notice of Disagreement (discussed
earlier in this document) which preceded the Board decision with
respect to the issue, or issues, involved was received on or after
November 18, 1988; and (3) the attorney was retained within one year of
the relevant Board decision. 38 U.S.C. 5904(c)(1); 38 CFR 20.609(c).
In the case of a motion under proposed subpart O, it is our view
that the issue for purposes of Rule 609 is the issue associated with
the Board decision which is being challenged in the motion under
proposed subpart O. Accordingly, an attorney could charge a fee in
connection with a motion under proposed subpart O if (1) the challenged
Board decision was preceded by a notice of disagreement received by the
AOJ on or after November 18, 1988, and (2) the attorney was retained
not later than one year following the date of the challenged Board
decision.
We note that proposed Rule 609(c)(4) would not affect the ability
of an attorney to charge a fee in connection with proceedings before a
court, because such charges are not subject to VA's jurisdiction.
The Secretary hereby certifies that this proposed rule would not
have a significant economic impact on a substantial number of small
entities as they are defined in the Regulatory Flexibility Act, 5
U.S.C. 601-612. This rule would affect only the processing of claims by
VA and would not affect small businesses. Therefore, pursuant to 5
U.S.C. 605(b), this proposed rule is exempt from the initial and final
regulatory flexibility analyses requirements of sections 603 and 604.
List of Subjects in 38 CFR Part 19
Administrative practice and procedure, Claims, Veterans.
Approved: May 11, 1998.
Togo D. West, Jr.,
Secretary.
For the reasons set out in the preamble, 38 CFR part 20 is proposed
to be amended as set forth below:
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
1. The authority citation for part 20 continues to read as follows:
Authority: 38 U.S.C. 501(a).
2. In subpart G, Sec. 20.609, paragraph (c)(4) is added to read as
follows:
Sec. 20.609. Rule 609. Payment of representative's fees in proceedings
before Department of Veterans Affairs field personnel and before the
Board of Veterans' Appeals.
* * * * *
(c) * * *
(4) For the purposes of this section, in the case of a motion under
Subpart O of this part (relating to requests for revision of prior
Board decisions on the grounds of clear and unmistakable
[[Page 27539]]
error), the ``issue'' referred to in this paragraph (c) shall have the
same meaning as ``issue'' in Rule 1401(a) (Sec. 20.1401(a) of this
part).
* * * * *
Sec. 20.1000 [Amended]
3. In subpart K, Sec. 20.1000 is amended by removing paragraph (a)
and redesignating paragraphs (b) and (c) as (a) and (b), respectively.
Sec. 20.1001 [Amended]
4. In subpart K, Sec. 20.1001(a), the second sentence is amended by
removing ``alleged obvious error, or errors, of fact or law in the
applicable decision, or decisions, of the Board or other appropriate''.
5. A new subpart O is added to read as follows:
Subpart O--Revision of Decisions on Grounds of Clear and Unmistakable
Error
Sec.
20.1400 Rule 1400. Motions to revise Board decisions.
20.1401 Rule 1401. Definitions.
20.1402 Rule 1402. Inapplicability of other rules.
20.1403 Rule 1403. What constitutes clear and unmistakable error;
what does not.
20.1404 Rule 1404. Filing and pleading requirements.
20.1405 Rule 1405. Disposition.
20.1406 Rule 1406. Effect of revision.
20.1407 Rule 1407. Motions by the Board.
20.1408 Rule 1408. Special rules for simultaneously contested
claims.
20.1409 Rule 1409. Finality and appeal.
20.1410 Rule 1410. Stays pending court action.
20.1411 Rule 1411. Relationship to other statutes.
Subpart O--Revision of Decisions on Grounds of Clear and
Unmistakable Error
Sec. 20.1400 Rule 1400. Motions to revise Board decisions.
(a) Review to determine whether clear and unmistakable error exists
in a final Board decision may be initiated by the Board, on its own
motion, or by a party to that decision (as the term ``party'' is
defined in Rule 1401(b) (Sec. 20.1401(b) of this part) in accordance
with Rule 1404 (Sec. 20.1404 of this part).
(b) A Board decision on an issue decided by a court of competent
jurisdiction on appeal is not subject to revision on the grounds of
clear and unmistakable error.
(Authority: 38 U.S.C. 501(a), 7111)
Sec. 20.1401 Rule 1401. Definitions.
(a) Issue. Unless otherwise specified, the term ``issue'' in this
subpart means a matter upon which the Board made a final decision
(other than a decision under this subpart) which was appealable under
Chapter 72 of title 38, United States Code, or which would have been so
appealable if the Notice of Disagreement with respect to such matter
had been received by the agency of original jurisdiction on or after
November 18, 1988.
(b) Party. As used in this subpart, the term ``party'' means any
party to the proceeding before the Board that resulted in the final
Board decision which is the subject of a motion under this subpart, but
does not include officials authorized to file administrative appeals
pursuant to Sec. 19.51 of this title.
(Authority: 38 U.S.C. 501(a), 7104(a))
Sec. 20.1402 Rule 1402. Inapplicability of other rules.
Motions filed under this subpart are not appeals and, except as
otherwise provided, are not subject to the provisions of parts 19 or 20
of this chapter which relate to the processing and disposition of
appeals.
Sec. 20.1403 Rule 1403. What constitutes clear and unmistakable error;
what does not.
(a) General. 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. Generally, either the
correct facts, as they were known at the time, were not before the
Board, or the statutory and regulatory provisions extant at the time
were incorrectly applied.
(b) Record to be reviewed.--(1) General. Review for clear and
unmistakable error in a prior Board decision must be based on the
record and the law that existed when that decision was made.
(2) Special rule for Board decisions issued on or after July 21,
1992. For a Board decision issued on or after July 21, 1992, the record
that existed when that decision was made includes relevant documents
possessed by the Department of Veterans Affairs not later than 90 days
before such record was transferred to the Board for review in reaching
that decision, provided that the documents could reasonably be expected
to be part of the record.
(c) Errors that constitute clear and unmistakable error. To warrant
revision of a Board decision on the grounds of clear and unmistakable
error, there must have been an error in the Board's adjudication of the
appeal which, had it not been made, would have manifestly changed the
outcome when it was made. If it is not absolutely clear that a
different result would have ensued, the error complained of cannot be
clear and unmistakable.
(d) Examples of situations that are not clear and unmistakable
error.--(1) Changed diagnosis. A new medical diagnosis that
``corrects'' an earlier diagnosis considered in a Board decision.
(2) Duty to assist. The Secretary's failure to fulfill the duty to
assist.
(3) Evaluation of evidence. A disagreement as to how the facts were
weighed or evaluated.
(e) Change in interpretation. Clear and unmistakable error does not
include the otherwise correct application of a statute or regulation
where, subsequent to the Board decision challenged, there has been a
change in the interpretation of the statute or regulation.
(Authority: 38 U.S.C. 501(a), 7111)
Sec. 20.1404 Rule 1404. Filing and pleading requirements.
(a) General. A motion for revision of a decision based on clear and
unmistakable error must be in writing, and must be signed by the moving
party or that party's representative. The motion must include the name
of the veteran; the name of the moving party if other than the veteran;
the applicable Department of Veterans Affairs file number; and the date
of the Board of Veterans' Appeals decision to which the motion relates.
If the applicable decision involved more than one issue on appeal, the
motion must identify the specific issue, or issues, to which the motion
pertains. Motions which fail to comply with the requirements set forth
in this paragraph shall be dismissed without prejudice to refiling
under this subpart.
(b) Specific allegations required. The motion must set forth
clearly and specifically the alleged clear and unmistakable error, or
errors, of fact or law in the Board decision, the legal or factual
basis for such allegations, and why the result would have been
manifestly different but for the alleged error. Non-specific
allegations of failure to follow regulations or failure to give due
process, or any other general, non-specific allegations of error, are
insufficient to satisfy the requirement of the previous sentence.
Motions which fail to comply with the requirements set forth in this
paragraph shall be denied.
(c) Filing. A motion for revision of a decision based on clear and
unmistakable error may be filed at any time. Such motions should be
filed at the following address: Director, Administrative Service (014),
Board of
[[Page 27540]]
Veterans' Appeals, 810 Vermont Avenue, NW, Washington, DC 20420.
(d) Requests not filed at the Board. A request for revision
transmitted to the Board by the Secretary pursuant to 38 U.S.C. 7111(f)
(relating to requests for revision filed with the Secretary other than
at the Board) shall be treated as if a motion had been filed pursuant
to paragraph (d) of this section.
(Authority: 38 U.S.C. 501(a), 7111)
Sec. 20.1405 Rule 1405. Disposition.
(a) Docketing and assignment. Motions under this subpart will be
docketed in the order received and will be assigned in accordance with
Sec. 19.3 of this part (relating to assignment of proceedings). Where
an appeal is pending on the same underlying issue at the time the
motion is received, the motion and the appeal may be consolidated under
the same docket number and disposed of as part of the same proceeding.
A motion may not be assigned to any Member who participated in the
decision that is the subject of the motion. If a motion is assigned to
a panel, the decision will be by a majority vote of the panel Members.
(b) Evidence. No new evidence will be considered in connection with
the disposition of the motion. Material included in the record on the
basis of Rule 1403(b)(2) (Sec. 20.1403(b)(2) of this part) is not
considered new evidence.
(c) Hearing.--(1) Availability. The Board may, for good cause
shown, grant a request for a hearing for the purpose of argument. No
testimony or other evidence will be admitted in connection with such a
hearing. The determination as to whether good cause has been shown
shall be made by the member or panel to whom the motion is assigned.
(2) Submission of requests. Requests for such a hearing shall be
submitted to the following address: Director, Administrative Service
(014), Board of Veterans' Appeals, 810 Vermont Avenue, NW, Washington,
DC 20420.
(d) Decision to be by the Board. The decision on a motion under
this subpart shall be made by the Board. There shall be no referral of
the matter to any adjudicative or hearing official acting on behalf of
the Secretary for the purpose of deciding the motion.
(e) Referral to ensure completeness of the record. Subject to the
provisions of paragraph (b) of this section, the Board may use the
various agencies of original jurisdiction to ensure completeness of the
record in connection with a motion under this subpart.
(f) General Counsel opinions. The Board may secure opinions of the
General Counsel in connection with a motion under this subpart. In such
cases, the Board will notify the party and his or her representative,
if any. When the opinion is received by the Board, a copy of the
opinion will be furnished to the party's representative or, subject to
the limitations provided in 38 U.S.C. 5701(b)(1), to the party if there
is no representative. A period of 60 days from the date of mailing of a
copy of the opinion will be allowed for response. The date of mailing
will be presumed to be the same as the date of the letter or memorandum
which accompanies the copy of the opinion for purposes of determining
whether a response was timely filed.
(g) Decision. The decision of the Board on a motion will be in
writing. The decision will include separately stated findings of fact
and conclusions of law on all material questions of fact and law
presented on the record, the reasons or bases for those findings and
conclusions, and an order granting or denying the motion.
(Authority: 38 U.S.C. 501(a), 7104(d), 7111)
Sec. 20.1406 Rule 1406. Effect of revision
A decision of the Board that revises a prior Board 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. Revision of a
prior Board decision under this subpart that results in the
discontinuance or reduction of benefits is subject to laws and
regulations governing the reduction or discontinuance of benefits by
reason of erroneous award based solely on administrative error or
errors in judgment.
(Authority: 38 U.S.C. 7111(b)
Sec. 20.1407 Rule 1407. Motions by the Board
If the Board undertakes, on its own motion, a review pursuant to
this subpart, the party to that decision and that party's
representative (if any) will be notified of such motion and provided an
adequate summary thereof and, if applicable, outlining any proposed
discontinuance or reduction in benefits that would result from revision
of the Board's prior decision. They will be allowed a period of 60 days
to file a brief or argument in answer. The failure of a party to so
respond does not affect the finality of the Board's decision on the
motion.
(Authority: 38 U.S.C. 501(a), 7111)
Sec. 20.1408 Rule 1408. Special rules for simultaneously contested
claims.
In the case of a motion under this subpart to revise a final Board
decision in a simultaneously contested claim, as that term is used in
Rule 3(o) (Sec. 20.3(o) of this part), a copy of such motion shall, to
the extent practicable, be sent to all other contesting parties. Other
parties have a period of 30 days from the date of mailing of the copy
of the motion to file a brief or argument in answer. The date of
mailing of the copy will be presumed to be the same as the date of the
letter which accompanies the copy. Notices in simultaneously contested
claims will be forwarded to the last address of record of the parties
concerned and such action will constitute sufficient evidence of
notice.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1409 Rule 1409. Finality and appeal.
(a) A decision on a motion filed by a party or initiated by the
Board pursuant to this subpart will be stamped with the date of mailing
on the face of the decision, and is final on such date. The party and
his or her representative, if any, will be provided with copies of the
decision.
(b) For purposes of this section, a dismissal without prejudice
under Rule 1404(a) (Sec. 20.1404(a) of this part) or a referral under
Rule 1405(e) is not a final decision of the Board.
(c) Once there is a final decision on a motion under this subpart
relating to a prior Board decision on an issue, that prior Board
decision on that issue is no longer subject to revision on the grounds
of clear and unmistakable error. Subsequent motions relating to that
prior Board decision on that issue shall be dismissed with prejudice.
(d) Chapter 72 of title 38, United States Code (relating to
judicial review), applies with respect to final decisions on motions
filed by a party or initiated by the Board pursuant to this subpart.
(Authority: 38 U.S.C. 501(a); Pub. L. 105-111)
Sec. 20.1410 Rule 1410. Stays pending court action.
The Board will stay its consideration of a motion under this
subpart upon receiving notice that the Board decision that is the
subject of the motion has been appealed to a court of competent
jurisdiction until the appeal has been concluded or the court has
issued an order permitting, or directing, the Board to proceed with the
motion.
(Authority: 38 U.S.C. 501(a))
Sec. 20.1411 Rule 1411. Relationship to other statutes.
(a) The ``benefit of the doubt'' rule of 38 U.S.C. 5107(b) does not
apply to the Board's decision, on a motion under this subpart, as to
whether there was clear and unmistakable error in a prior Board
decision.
[[Page 27541]]
(b) A motion under this subpart is not a claim subject to reopening
under 38 U.S.C. 5108 (relating to reopening claims on the grounds of
new and material evidence).
(c) A motion under this subpart is not an application for benefits
subject to any duty associated with 38 U.S.C. 5103(a) (relating to
applications for benefits).
(d) A motion under this subpart is not a claim for benefits subject
to the requirements and duties associated with 38 U.S.C. 5107(a)
(requiring ``well-grounded'' claims and imposing a duty to assist).
(Authority: 38 U.S.C. 501(a))
[FR Doc. 98-13197 Filed 5-18-98; 8:45 am]
BILLING CODE 8320-01-P