[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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