[Federal Register Volume 64, Number 29 (Friday, February 12, 1999)]
[Rules and Regulations]
[Pages 7090-7091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-3565]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AJ75


Board of Veterans' Appeals: Rules of Practice--Notification of 
Representatives in Connection With Motions for Revision of Decisions on 
Grounds of Clear and Unmistakable Error

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule.

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SUMMARY: This document amends the Rules of Practice of the Board of 
Veterans' Appeals (Board) relating to challenges to Board decisions on 
the grounds of ``clear and unmistakable error'' (CUE). The amendment 
provides for notification of the party's representative and an 
opportunity for a response when the Board receives a request for CUE 
review.

DATES: Effective Date: This amendment is effective February 12, 1999. 
Comments must be submitted by March 15, 1999.

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-AJ75.'' 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.
    On January 13, 1999, the Department of Veterans Affairs (VA) 
published a final rule in the Federal Register, 64 FR 2134, 
implementing the provisions of section 1(b) of Pub. L. No. 105-111 
(Nov. 21, 1997), which permits challenges to decisions of the Board on 
the grounds of ``clear and unmistakable error'' (CUE).
    Historically, 90 percent of appellants at the Board are 
represented. Approximately 75 percent of all appellants are represented 
by ``recognized organizations''--e.g., The American Legion, Disabled 
American Veterans, Veterans of Foreign Wars of the United States--with 
offices at the Board's principal offices in Washington, DC. Even though 
CUE motions under our rules relate, by definition, to prior Board 
decisions and therefore are likely to be made by represented parties, 
we believe that not all represented parties will consult with their 
representatives prior to filing such a motion. Further, we are 
concerned that not all such parties will take the time, or have the 
expertise, to familiarize themselves thoroughly with the rules relating 
to these motions.
    Familiarity with the CUE rules is important because of the finality 
of a Board decision on a CUE motion. As published, the new rules 
relating to CUE motions incorporate the jurisprudence of the Court of 
Veterans Appeals. One of the most important aspects is that there is 
only one challenge on the grounds of CUE available with respect to a 
particular Board decision on a particular issue: Once the Board has 
ruled and once the appellate procedures have run their course, a 
request for revision of the same decision on the grounds of CUE will no 
longer be considered. Russell v. Principi, 3 Vet. App. 310, 315 (1992); 
38 CFR 20.1409(c); 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).
    A party's consultation with his or her representative is important 
because of the finality of a Board decision on a CUE motion. A 
representative can help in two ways: first, to make the best possible 
argument to the Board on a

[[Page 7091]]

CUE motion; and, second, to advise the party that, under the 
circumstances, it might be better to withdraw the motion until he or 
she has had a chance to put together a better argument.
    Accordingly, to encourage representatives' participation in CUE 
motions, we have amended Rule 1405 (relating to disposition of CUE 
motions) to provide that, when the Board receives a CUE motion from a 
party, and that party's file reveals that he or she is represented--by 
an attorney, an agent, an individual or a recognized organization--the 
Board will take steps to notify the representative that the motion has 
been filed. Specifically, the Board will provide a copy of the motion 
to the representative before assigning the motion to a Member or panel. 
The representative will have 30 days to file any relevant response, 
including a request that the representative be permitted to review the 
claims file prior to filing a further response.
    We believe that 30 days is sufficient time for an attorney or other 
representative to contact the party and determine what, if any, 
additional steps may be necessary. Since a request for CUE review may 
be withdrawn at any time prior to the issuance of a decision on the 
motion without prejudice to refiling, 38 CFR 20.1404(f), if a 
representative believed that more time was necessary, withdrawing the 
motion is a viable alternative. Particularly in light of this 
alternative, we do not believe that it is necessary or useful to the 
orderly administration of justice to permit potentially unlimited 
extensions of time on these motions.
    Notwithstanding our concern with a timely response, we understand 
that a representative may wish to review the record--i.e., the claims 
file--prior to making a recommendation to the moving party. 
Accordingly, Rule 1405(a)(2) provides that, if the representative makes 
an appropriate request prior to the expiration of time allowed, the 
Board will make arrangements for the representative to review the 
claims file prior to filing a further response, and permit the 
representative a reasonable time after making the file available to 
file a further response.
    This interim final rule concerns rules of agency procedure and 
practice. Further, it provides additional process favorable to affected 
individuals. Accordingly, under the provisions of 5 U.S.C. 553, we are 
dispensing with prior notice and comment and a delayed effective date.
    The Secretary hereby certifies that this 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 affects individuals and does not affect small 
businesses. Therefore, pursuant to 5 U.S.C. 605(b), this rule is exempt 
from the initial and final regulatory flexibility analyses requirements 
of sections 603 and 604.

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure, Claims, Lawyers, Legal 
services, Veterans, Authority delegations (government agencies).

    Approved: February 5, 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 O, Sec. 20.1405(a) is revised to read as follows:


Sec. 20.1405  Rule 1405. Disposition.

    (a) Docketing and assignment; notification of representative.--(1) 
General. 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.
    (2) Notification of representative. When the Board receives a 
motion under this subpart from an individual whose claims file 
indicates that he or she is represented, the Board shall provide a copy 
of the motion to the representative before assigning the motion to a 
Member or panel. Within 30 days after the date on which the Board 
provides a copy of the motion to the representative, the representative 
may file a relevant response, including a request to review the claims 
file prior to filing a further response. Upon request made within the 
time allowed under this paragraph, the Board shall arrange for the 
representative to have the opportunity to review the claims file, and 
shall permit the representative a reasonable time after making the file 
available to file a further response.
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[FR Doc. 99-3565 Filed 2-11-99; 8:45 am]
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