[Federal Register Volume 64, Number 8 (Wednesday, January 13, 1999)]
[Rules and Regulations]
[Pages 2134-2141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-760]


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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: Final rule.

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SUMMARY: This document amends the Rules of Practice of the Board of 
Veterans' Appeals (Board) to implement the provisions of section 1(b) 
of Pub. L. No. 105-111 (Nov. 21, 1997), which permit challenges to 
Board decisions on the grounds of ``clear and unmistakable error'' 
(CUE). The amendments provide specific application procedures and 
establish decision standards based on case law. These changes 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: Effective Date: February 12, 1999.

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.
    On May 19, 1998, the Department of Veterans Affairs (VA) published 
a notice of proposed rulemaking (NPRM) in the Federal Register. 63 FR 
27534. We proposed to implement the provisions of section 1(b) of Pub. 
L. 105-111 (Nov. 21, 1997), which permits challenges to decisions of 
the Board of Veterans' Appeals (Board) on the grounds of ``clear and 
unmistakable error'' (CUE).
    The public comment period ended on July 20, 1998. VA received 5 
comments: 3 from veterans service organizations; one from a consortium 
of organizations, including veterans service organizations; and one 
from an individual. These comments are discussed below.
    Based on the rationale set forth in the proposed rule and in this 
document, we adopt the provisions of the proposed rule as a final rule 
with changes explained below.

Subpart G, Rule 609(c)--Attorney Fees

    Two commenters questioned Rule 609(c)(4)'s approach to attorney 
fees. That rule provides that the term ``issue,'' for purposes of 
charging a fee, would have the same meaning as ``issue'' in the context 
of a motion under subpart O. In other words, provided that the Board 
decision being challenged is associated with a notice of disagreement 
dated on or after November 18, 1988, and that the attorney was retained 
within one year of that decision, the attorney can be paid for services 
rendered in connection with a motion under subpart O.
    The rule as proposed makes paid legal representation available to 
the maximum extent possible under existing law. For example, if we 
defined ``issue'' as meaning a challenge based on CUE, an attorney 
would never be able to charge for services in connection with a CUE 
motion because the Board would not have issued a final decision on the 
``issue'' until after the CUE process was complete.
    Two commenters suggested that we ignore the requirement that, in 
order for an attorney or agent to charge a fee, a

[[Page 2135]]

case must have associated with it a notice of disagreement received on 
or after November 18, 1988. That requirement is imposed by Pub. L. 100-
687, Div. A, section 403, 102 Stat. 4108, reprinted at 38 U.S.C.A. 5904 
note (applicability to attorneys fees), and VA may not by rule 
eliminate a requirement imposed by statute. One commenter suggested 
that we define ``case'' as a CUE case brought by a party unrepresented 
by an attorney, and that the one-year period should begin when the 
Board denies that party's motion. We do not believe that whether an 
action is a ``case'' depends on the nature of the movant's 
representation, and decline to adopt that suggestion.
    Accordingly, we are adopting the change to Rule 609 as proposed.

Subpart K, Rule 1000--Reconsideration

General

    We proposed to eliminate reconsideration on the grounds of obvious 
error based on the conclusion that this procedure was duplicative of 
the process under 38 U.S.C. 7111. Based on the comments received, we 
have concluded that the remedies are not totally equivalent, primarily 
because the remedy of reconsideration, when ordered by the Chairman, 
requires that the Board review the appeal de novo, while review on a 
CUE motion requires the review only of specific allegations of error. 
Accordingly, the final rule does not contain any change to Rule 1000.

Motions for Reconsideration as Motions for Review Under the Cue 
Standard

    Because we had proposed to eliminate motions for reconsideration 
based on obvious error, we decided to treat motions for reconsideration 
alleging obvious error received after the enactment of Pub. L. 105-111 
as motions for correction of CUE and so informed individuals who had 
filed such reconsideration motions. However, because we have now 
decided not to eliminate reconsideration based on obvious error, and 
because of the special pleading rules and the finality associated with 
motions under 38 U.S.C. 7111, we have decided that motions for 
reconsideration should not be considered CUE motions. In our view, 
there is a potential risk for the veteran to lose his or her chance at 
reversal on CUE grounds by inadvertently filing such a motion. We 
believe that CUE motions should be carefully thought out.
    Accordingly, we have added a new paragraph (e) to Rule 1404 
(relating to filing and pleading requirements) which provides that 
motions for reconsideration, whenever filed, will not be considered 
motions under subpart O. We do not believe this approach will prejudice 
anyone because (1) a CUE motion may be filed at any time; (2) the 
effect of a successful motion is the same no matter when filed--i.e., 
the prior Board decision is revised effective the date it was 
originally issued; and (3) the vast majority of individuals who applied 
for reconsideration probably had no idea that their motions would be 
construed as requests for revision under the new statute.
    Nevertheless, since we have told individuals that we would decide 
their reconsideration motions under the new CUE regulations, and since 
the ``motions'' of those individuals have been assigned a place on the 
Board's ``docket,'' we will give each person so notified an opportunity 
to have his or her motion adjudicated under the new regulations. 
Accordingly, we will (1) notify the individuals concerned that their 
reconsideration motions will not be construed as CUE motions unless we 
receive notification from them that they want the motion construed as a 
CUE motion; (2) provide those individuals with a copy of the new 
regulations; and (3) encourage them to seek representation if they 
decide to pursue a motion under subpart O.

Subpart O--Revision of Decisions on Grounds of Clear and 
Unmistakable Error (Rules 1400-1411)

General

    Several commenters suggested, in the context of various rules, that 
we interpret Pub. L. 105-111 more liberally than the courts have 
interpreted 38 CFR 3.105(a), VA's long-standing regulatory basis for 
CUE challenges to regional office decisions. We decline to follow these 
suggestions.
    As we said in our NPRM, 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'').

Rule 1400

    Proposed Rule 1400 recited the statutory rule that Board decisions 
may be challenged on the grounds of CUE, and provided, in Rule 1400(b), 
that a Board decision on an issue (as defined in Rule 1401(a)) decided 
by a court of competent jurisdiction is not subject to challenge on the 
grounds of CUE.
    One commenter objected to Rule 1400(b) on a variety of grounds, 
ranging from veterans' representatives who innocently miss grounds for 
appeal to the inapplicability of the rule, set forth in Donovan v. 
Gober, 10 Vet. App. 404 (1997), aff'd sub. nom. Donovan v. West, 158 
F.3d 1377 (Fed. Cir. 1998), that a decision by an agency of original 
jurisdiction (AOJ) is ``subsumed'' in a Board decision on the merits, 
so that such an AOJ decision would no longer be subject to a CUE 
challenge. The reason for Rule 1400(b), as stated in our NPRM, is that 
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). 63 FR 
27536.
    The same commenter suggested that Rule 1400(b) was unclear as to 
which final Board decisions would be exempt from review based on appeal 
to a court of competent jurisdiction. It was our intent that two 
classes of Board decisions not be subject to challenge: Those appealed 
to and decided by such courts, and those on issues which are 
subsequently decided by such courts. Consider this example:

    A 1985 Board decision finally denied service connection for a 
disability. In 1990, the veteran reopened the claim with new and 
material evidence at the regional office; the claim was denied and 
appealed to the Board; the Board again denied service connection; 
and the decision was appealed to the Court of Veterans' Appeals 
which, in 1995, affirmed the Board's decision. In 1997, the veteran 
reopened his claim at the regional office, where it was denied on 
the merits, and, in 1998, denied on appeal to the Board.

    Under our rules, the veteran could challenge the 1998 Board 
decision, but could not challenge either the decision which was 
affirmed by the Court, or the 1985 decision. We believe that the 
rationale stated in jurisprudence which prevents regional offices from 
overturning Board decisions, and which therefore precludes regional 
offices from reviewing for CUE their own decisions that have been 
subsumed by subsequent Board decisions, is sound and is equally

[[Page 2136]]

applicable to the Board. See generally Donovan v. West, supra. 
Therefore, our rule precludes a CUE challenge to a Board decision on an 
issue that has been subsequently decided by a court of competent 
jurisdiction, whether on direct appeal of that Board decision or on 
appeal of a subsequent Board decision on the same issue.
    We have amended Rule 1400(b) to make this clearer.

Rule 1401

    Rule 1401 defines the terms ``issue'' and ``party.''
    Rule 1401(a), which defines ``issue,'' requires that the applicable 
Board decision either have been appealable under Chapter 72 of title 
38, United States Code, or would have been appealable if the notice of 
disagreement had been received by the AOJ on or after November 18, 
1988.
    One commenter thought that our definition of ``issue'' could be 
misinterpreted to mean that only Board decisions which in fact could 
have been appealed under Chapter 72 could be challenged on the grounds 
of CUE. That is certainly not what we intended. The purpose of this 
qualification is simply to clarify that only final, outcome-
determinative decisions of the Board are subject to revision on the 
grounds of CUE. Our purpose in referencing appeals to the court is 
simply to provide a meaningful standard for what we mean by ``final'' 
Board decisions. Since all Board decisions on appeals require that the 
appellant have filed a notice of disagreement, 38 U.S.C. 7105(a), and 
final Board decisions are appealable under chapter 72 of title 38, 
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), parties, the 
Board and reviewing courts, by using this standard, will be able to 
determine whether a Board decision was in fact final, whether or not it 
was actually appealed to the court. Nevertheless, we have revised Rule 
1401(a) to clarify that a ``final decision'' is one which was 
appealable to the Court of Veterans Appeals (CVA), or which would have 
been appealable if the relevant statutory provisions providing review 
had been in effect at the time of the Board decision.
    One commenter stated that the definition of ``issue'' was too vague 
because it refers to ``a matter upon which the Board made a final 
decision,'' and the term ``matter'' is not defined. We do not agree. 
The term ``matter'' is taken from 38 U.S.C. 7103(a), which refers to 
the finality of a ``decision of the Board determining a matter under 
section 7102'' of title 38. Section 7102 in turn relates to assignment 
of proceedings to Board members. ``Matter'' is not an unknown term in 
the context of Board decisions, cf. 38 U.S.C. 7104(a) (``matter'' for 
decision under 38 U.S.C. 511(a)), and we think it is serviceable enough 
in the context of subpart O.
    The same commenter suggests that various ``subsidiary'' questions 
also be subject to CUE challenges. Again, we do not agree. As we stated 
in our NPRM, one of the purposes of this definition is to clarify 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 * * *.'' 63 FR 27537.
    Two commenters suggest amending the definition of ``party'' in Rule 
1401(b), to include, variously, the representative of a party and the 
family of a party. We do not agree. The right to challenge a Board 
decision is limited by statute to the claimant and the Board. 38 U.S.C. 
7111(c). Cf. Haines v. West, 154 F.3d 1298, 1301 (Fed. Cir. 1998) 
(substantively identical 38 U.S.C. 5109A, applicable to regional office 
decisions, contains nothing that provides for another person, even a 
survivor, to seek correction of a decision on a veteran's claim). We 
note that, under Rule 1404(a), a party's representative may sign the 
motion for a challenge on the grounds of CUE.
    Accordingly, we are adopting Rule 1401(b) as proposed.

Rule 1402

    There were no comments on Rule 1402, which provides that motions 
filed under subpart O are not appeals and, except as otherwise 
provided, are not subject to the provisions of the Board's regulations 
which relate to the processing and disposition of appeals. We are 
adopting Rule 1402 as proposed.

Rule 1403

    Rule 1403 relates to what constitutes CUE and what does not. We 
received a number of comments on this rule.
    In our proposed rulemaking, we based our definition of CUE on 
rulings by the CVA. A number of commenters suggested that this 
definition was too restrictive, and should be modified.
    We do not agree. Congress intended that VA adopt the CVA 
interpretation of the term ``clear and unmistakable error.'' Indeed, as 
discussed in the NPRM, 63 FR 27536, the sponsor of the bill which 
became the law specifically noted that the bill would ``not alter the 
standard for evaluation of claims of clear and unmistakable error.'' 
143 Cong. Rec. 1567, 1568 (daily ed. Apr. 16, 1997) (remarks of Rep. 
Evans, sponsor of H.R. 1090, in connection with House passage).
    Several commenters objected to our incorporation, in Rule 
1403(b)(2), of the holding in Bell v. Derwinski, 2 Vet. App. 611 
(1992), that, with respect to Board decisions issued on or after July 
21, 1992, documents which were actually in VA's possession--even though 
not physically before the adjudicator--are constructively a part of the 
record. While we agree that this rule appears to conflict with a basic 
tenet of CUE--i.e., that we look at the same set of facts and law as 
did the original adjudicator--we do not believe we are free to ignore 
the court's decision.
    One commenter objected to Rules 1403(d)(2) and 1403(d)(3), which 
provide that neither (1) the Secretary's failure to fulfill the duty to 
assist nor (2) a disagreement as to how the facts were weighed or 
evaluated can constitute CUE. As described in our NPRM, the law is 
clear on these points. 63 FR 27536-37.
    Rule 1403(e) provides 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. Two commenters objected to 
this rule. Without getting into the various arguments advanced, it is, 
we believe, enough to say that the CVA has now ruled that this is the 
proper interpretation of the law. Smith (Rose) v. West, 11 Vet. App. 
134, 137-38 (1998).
    Accordingly, we are adopting Rule 1403 as proposed.

Rule 1404

    Rule 1404 relates to filing and pleading requirements in connection 
with a motion challenging a Board decision on the grounds of CUE. We 
received a number of comments on this rule.
    Several commenters expressed the view that the pleading 
requirements set forth in the proposed rule are too strict. We do not 
agree.
    While it is true that the requirements set forth in these proposed 
regulations are more strenuous than the ``paternalistic'' rules 
commonly associated with veterans' claims, challenges on the grounds of 
CUE are different from claims for benefits. Claims for benefits that 
meet certain minimum requirements--i.e., that are ``well grounded''--
require VA to assist the veteran in a variety of ways and demand only 
that the veteran show that it is at least as likely as not that he or 
she meets the standards for a grant of

[[Page 2137]]

benefits. This process indeed occurs in a non-adversarial setting.
    On the other hand, a CUE challenge to a final Board decision--
itself the product of this non-adversarial process--is based on the 
allegation that the Board has denied the claim in such a fundamentally 
erroneous way that any reasonable person would have granted the claim. 
It is a collateral challenge to an otherwise final decision as to which 
the presumption of validity is very strong. Fugo v. Brown, 6 Vet. App. 
40, 44 (1993).
    We understand that a person whose claim for benefits is denied 
would prefer that the claim have been granted. And, indeed, in our NPRM 
we outlined several ways in which veterans' claims can be revived. 63 
FR 27535. Nevertheless, where the veteran makes this kind of collateral 
challenge to a presumptively valid final decision, he or she is 
required to come forward with specific allegations as to the CUE. 
Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Fugo v. Brown, 6 Vet. 
App. 40, 44 (1993); cf. Berger v. Brown, 10 Vet. App. 166, 169 (1997) 
(``(A)ppellant, who always bears the burden of persuasion on appeals to 
this Court, bears an extra-heavy burden when the appeal is a collateral 
attack, in the form of a CUE claim, concerning a final decision''). 
That is, in essence, all that our rules call for.
    As described earlier in this document, we have added a new 
paragraph (e) to Rule 1404 to provide that motions for reconsideration, 
whenever filed, will not be considered motions under subpart O.
    We have also added a new paragraph (f) to Rule 1404 to clarify that 
a motion under subpart O may be withdrawn at any time before the Board 
promulgates a decision on the motion. If such a request is timely 
received, the motion shall be dismissed without prejudice to refiling 
under subpart O.

Rule 1405

    Rule 1405 relates to the disposition of motions filed under subpart 
O. The rule includes directions with respect to hearings, evidence, and 
opinions of VA's General Counsel. We received a number of comments on 
this rule.

Evidence (Rule 1405(b))

    One commenter proposed another definition of CUE, which would 
include the Board's failure to obtain evidence that a reasonable Board 
member would have tried to obtain and that, more likely than not, would 
have resulted in a grant of benefits. This commenter further proposed 
that, under that definition, if a party submitted with the CUE motion 
evidence that a reasonable Board member would have tried to obtain, 
that evidence be considered to have been of record at the time of the 
original decision. While we appreciate the thoughtful recommendation, 
we do not concur. Congress intended VA to follow the established case 
law defining CUE in implementing 38 U.S.C. 7111. This recommendation--
which would include in the definition of CUE evidence which would 
obviously not have been before the Board at the time of the original 
decision--does not meet that standard.
    One commenter argued that a moving party should be permitted to 
submit additional evidence in connection with a CUE challenge because 
the word ``evidence'' is used in 38 U.S.C. 7111. Our NPRM set forth 
controlling court precedents which make it clear that a ruling on CUE 
is based on the record that was before the adjudicator. We have not 
adopted this commenter's suggestion.
    That same commenter argued that it is arbitrary to prohibit a 
claimant from submitting evidence in connection with a CUE motion (Rule 
20.1405(b)) but to permit the Board to use AOJs to ensure completeness 
of the record (Rule 20.1405(e)). However, Rule 20.1405(e) would not 
permit the Board to supplement the record with evidence that was not of 
record at the time of the original decision, but rather would permit 
the Board to ensure that all evidence that was before the Board at the 
time of the original decision is before the Board on the CUE motion. 
Accordingly, we have not adopted this argument.

Hearings (Rule 1405(c))

    Rule 1405(c) provides that the Board, for good cause shown, may 
grant a request for a hearing for the purpose of argument. One 
commenter suggests that such hearings be made a matter of right. While 
it is true, as this commenter points out, that hearings are freely 
available in connection with most veterans' claims, those hearings are 
typically for the purpose of submitting evidence. There is, however, no 
evidence to be submitted in connection with a challenge based on CUE. 
Indeed, a ``hearing'' with respect to a motion under subpart O is more 
akin to oral argument in an appellate case. Accordingly, we are 
adopting Rule 1405(c) as proposed.

General Counsel opinions (Rule 1405(f))

    Rule 1405(f) permits the Board to secure opinions of VA's General 
Counsel in connection with a motion under subpart O.
    Two commenters expressed the opinion that this authority would be 
used only to establish post-hoc rationalizations for Board decisions. 
Those commenters articulate no factual basis for this conclusion. We 
believe that, in the proper case, an opinion from the Department's 
chief legal officer could be helpful in properly deciding the case. We 
are adopting Rule 1405(f) as proposed.

Decision format (Rule 1405(g))

    One commenter questioned the decision format to be used by the 
Board, i.e., findings of fact, conclusions of law, and reasons and 
bases for such findings and conclusions. As we said in our NPRM, we 
believe that the format in our rule--based on the requirements in 38 
U.S.C. 7104(d)--best facilitates judicial review. 63 FR at 27537. 
Accordingly, we are adopting Rule 1405(g) as proposed.

Rule 1406

    Rule 1406 relates to the effect of a revision of a Board decision 
based on CUE. One commenter suggested that VA consider adopting a 
regulation permitting the claimant to file a motion requesting a stay 
of a Board order under subpart O which terminates or reduces benefits 
pending a decision on appeal to the court. We decline to add such a 
provision. In such a case, the Board would have, by definition, decided 
that an award of benefits was clearly and unmistakably erroneous. To 
continue the payment of benefits based on a clearly and unmistakably 
erroneous award would create an overpayment attributable to the party.
    One commenter argued that Rule 1406 is contrary to law to the 
extent that it contemplates discontinuance or reduction of benefits in 
the context of a CUE motion because, according to this commenter, the 
Board has no authority to order such discontinuance or reduction. We do 
not agree. Section 7111(a) of title 38, United States Code, requires 
that, if evidence establishes a clear and unmistakable error in a Board 
decision, that decision be reversed or revised. The Board's duty to 
reverse or revise a clearly and unmistakably erroneous Board decision 
is not limited by the statutory language to situations in which a grant 
or increase in benefits would result. The commenter argued that 38 
U.S.C. 7111(b)--which relates to procedures to be followed in those 
cases where the CUE motion results in an award of benefits--implicitly 
limits the Board's authority to granting benefits and denying motions. 
However, that subsection simply provides the effective date of a 
reversal or revision of a prior Board decision resulting in a grant of 
or

[[Page 2138]]

increase in benefits. The fact that section 7111(b) does not mention 
the effective date for discontinuances or reductions does not prohibit 
such orders any more than the fact that it does not mention denial of a 
motion means the Board must grant every CUE motion.
    We have divided Rule 1406 into two separate paragraphs for purposes 
of clarity. This is purely stylistic, and we intend no substantive 
change.

Rule 1407

    Rule 1407 relates to motions under subpart O made by the Board.
    One commenter suggested that we amend that portion of the rule 
which provides that decisions on motions initiated by the Board are 
subject to the same finality as those initiated by a party. We do not 
agree. Should the Board undertake a motion, all parties will have an 
opportunity to address the motion fully. While we do not anticipate 
that the Board would use this authority often, we believe that the 
process outlined is fair.
    Another commenter suggested that the regulations be amended to 
provide that the Board is subject to the same pleading rules as 
parties. No changes are made based on this comment. The purpose of the 
pleading requirements is for a claimant to sufficiently identify to the 
Board the particular case, issue, and alleged error to be adjudicated. 
In the case of the Board's own motion, the Board will already be aware 
of this information. Furthermore, Rule 1407 will provide means for the 
Board to inform the claimant of the same information and permit the 
claimant to respond to the Board's motion.
    That same commenter also suggests that, when the Board proposes to 
reduce or terminate benefits as a result of a decision on the Board's 
motion under subpart O, the Board provide the party a predetermination 
hearing. We believe that the notice provisions of Rule 1407, and the 
availability of a hearing under Rule 1405(c) satisfy any due process 
concerns.
    Accordingly, we are adopting Rule 1407 as proposed.

Rule 1408

    No comments were received relating to Rule 1408, which applies to 
simultaneously contested claims.
    Accordingly, we are adopting Rule 1408 as proposed.

Rule 1409

    Rule 1409 relates to finality and appeal of a decision on a motion 
under subpart O.
    One commenter objected to Rule 1409(c), which provides that, once 
there is a final decision on a motion under subpart O, that prior Board 
decision on that issue is no longer subject to revision on the grounds 
of CUE. We believe our explanation in the NPRM is sufficient to rebut 
any argument on this point, and will not burden the record with a 
point-by-point discussion. 63 FR 27538. See also Allin v. Brown, 10 
Vet. App. 55, 57 (1997) (where court previously determined that there 
was no CUE in 1971 regional office decision, the question is no longer 
open for review).
    As discussed earlier in this document, we have amended proposed 
Rule 1404(f) to clarify that a CUE motion may be withdrawn at any time 
before the Board promulgates a decision on the motion. We have amended 
Rule 1409(b) to provide that a dismissal without prejudice under Rule 
1404(f) is not a final decision of the Board.

Rule 1410

    Rule 1410 relates to stays pending court action. There were no 
comments relating to Rule 1410.
    Accordingly, we are adopting Rule 1410 as proposed.

Rule 1411

    Rule 1411 concerns the relationship of subpart O to other statutes.
    One commenter objected to virtually all aspects of Rule 1411.
    ``Benefit of the doubt'' (Rule 1411(a)). This commenter argued 
that, because 38 U.S.C. 7111 uses the word ``case,'' the benefit of the 
doubt rule must apply to decisions made under subpart O. This commenter 
does not attempt to distinguish controlling precedent from the CVA, 
Russell v. Principi, 3 Vet. App. 310, 314 (1992), (discussed in our 
NPRM, 63 FR 27536), that the ``benefit of the doubt'' rule does not 
apply to the question of whether a prior decision was the result of 
CUE, nor the legislative history described earlier in this document. We 
reject this argument.
    New and material evidence (Rule 1411(b)). The same commenter 
objects to the rule providing that CUE claims are not subject to 
reopening on the grounds of new and material evidence. However, as 
discussed extensively in our NPRM, a motion under subpart O is a 
challenge based on the evidence of record when the original decision 
was made. Accordingly, there is no evidence to submit in connection 
with such a motion, much less ``new and material evidence'' at some 
later date. Further, a motion under subpart O is not a claim within the 
meaning of 38 U.S.C. 5108 (relating to reopening claims with new and 
material evidence). We reject this argument.
    Duties associated with applications for benefits (Rule 1411(c)). 
This same commenter objects to the rule providing that the duties 
associated with applications for benefits do not apply to motions under 
subpart O. We do not agree. Challenges based on CUE are collateral 
attacks on final decisions, Berger v. Brown, 10 Vet. App. 166, 169 
(1997); Duran v. Brown, 7 Vet. App. 216, 223-24 (1994), not claims for 
benefits. Therefore, duties associated with applications for benefits 
do not apply to CUE motions. In any event, the detailed rules we are 
publishing are, we believe, fair and extremely detailed notice as to 
what is required to successfully maintain a challenge of CUE.
    Accordingly, we are adopting Rule 1411 as proposed.
    The Secretary hereby certifies that this final rule does 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: January 8, 1999.
Togo D. West, Jr.,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 20 is 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 error), the 
``issue'' referred to in this paragraph (c) shall have the same

[[Page 2139]]

meaning as ``issue'' in Rule 1401(a) (Sec. 20.1401(a) of this part).
* * * * *
    3. 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; withdrawal.
20.1405  Rule 1405. Disposition.
20.1406  Rule 1406. Effect of revision; discontinuance or reduction 
of benefits.
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) All final Board decisions are subject to revision under this 
subpart except:
    (1) Those decisions which have been appealed to and decided by a 
court of competent jurisdiction; and
    (2) Decisions on issues which have subsequently been decided by a 
court of competent jurisdiction.

(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). As used in the preceding 
sentence, a ``final decision'' is one which was appealable under 
Chapter 72 of title 38, United States Code, or which would have been so 
appealable if such provision had been in effect at the time of the 
decision.
    (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))


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 part 19 of 
this title or this part 20 which relate to the processing and 
disposition of appeals.

(Authority: 38 U.S.C. 501(a))


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; withdrawal.

    (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 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

[[Page 2140]]

a motion had been filed pursuant to paragraph (c) of this section.
    (e) Motions for reconsideration. A motion for reconsideration, as 
described in subpart K of this part, whenever filed, will not be 
considered a motion under this subpart.
    (f) Withdrawal. A motion under this subpart may be withdrawn at any 
time before the Board promulgates a decision on the motion. Such 
withdrawal shall be in writing, shall be filed at the address listed in 
paragraph (c) of this section, and shall be signed by the moving party 
or by such party's representative. If such a writing is timely 
received, the motion shall be dismissed without prejudice to refiling 
under this subpart.

(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 title (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; discontinuance or 
reduction of benefits.

    (a) General. 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.
    (b) Discontinuance or reduction of benefits. 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 Rule 1404(f) 
(Sec. 20.1404(f)), 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

[[Page 2141]]

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.
    (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. 99-760 Filed 1-12-99; 8:45 am]
BILLING CODE 8320-01-P