[Federal Register Volume 64, Number 250 (Thursday, December 30, 1999)]
[Rules and Regulations]
[Pages 73413-73414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33995]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AJ98


Board of Veterans' Appeals: Rules of Practice--Revision of 
Decisions on Grounds of Clear and Unmistakable Error; Clarification

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 governing the revision of Board decisions on the 
grounds of clear and unmistakable error. By this amendment, we clarify 
that, in the case of a Board decision on more than one issue, the 
Board's decision on issues appealed to and decided by a court of 
competent jurisdiction is not subject to subsequent revision on the 
grounds of clear and unmistakable error, but the Board's decision on 
issues not appealed to or decided by a court of competent jurisdiction 
is subject to such revision.

DATES: Effective Date: February 12, 1999.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 
810 Vermont Avenue, NW, Washington, DC 20420, (202) 565-5978.

SUPPLEMENTARY INFORMATION: On May 19, 1998, we published a notice of 
proposed rulemaking in the Federal Register (63 FR 27534). We proposed 
to implement section 1(b) of Pub. L. 105-111 (Nov. 21, 1997), which 
permits challenges to Board of Veterans' Appeals (Board) decisions on 
the

[[Page 73414]]

grounds of clear and unmistakable error (CUE). In particular, because 
``it would be inappropriate for an inferior tribunal to review the 
actions of a superior,'' we proposed to codify at 38 CFR 20.1400(b) a 
provision stating: ``A Board decision on an issue decided by a court of 
competent jurisdiction on appeal is not subject to revision on the 
grounds of [CUE].'' 63 FR at 27536, 27539.
    On January 13, 1999, we published the final rule, which became 
effective February 12, 1999 (64 FR 2134). Based on comments that 
Sec. 20.1400(b) was unclear, we revised that provision with the intent 
that ``our rule preclude[] 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.'' 64 FR at 
2136. However, the language of Sec. 20.1400(b) stated: ``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.'' Id. 
at 2139.
    By inadvertently omitting the words ``on issues'' from 
Sec. 20.1400(b)(1), we created an ambiguity in the case of a Board 
decision on more than one issue where fewer than all of the issues were 
appealed to and decided by a court. It was not clear whether 
Sec. 20.1400(b)(1) insulated every issue in such a Board decision from 
CUE revision or whether it insulated only the issues appealed to and 
decided by the court. We intended, both in the proposed rule and in the 
final rule, that Sec. 20.1400(b)(1) would insulate only the decision on 
issues appealed to and decided by a court. By reinserting the words 
``on issues'' in Sec. 20.1400(b)(1), we remove the ambiguity and 
clarify that, in the case of a Board decision on multiple issues, 
Sec. 20.1400(b)(1) insulates from subsequent CUE revision only the 
Board's decision on issues appealed to and decided by a court, but not 
its decision on issues not appealed to the court. We are also removing 
the word ``Those'' to make paragraphs (1) and (2) of Sec. 20.1400(b) 
parallel.
    This document merely clarifies regulatory provisions. Therefore, in 
accordance with 5 U.S.C. 553, this final rule is exempt from prior 
notice-and-comment and delayed-effective-date provisions.
    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 affects only individuals. Therefore, pursuant to 5 
U.S.C. 605(b), this final rule is exempt from the initial and final 
regulatory flexibility analysis requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure, Claims, Veterans.

    Approved: November 18, 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

Subpart O--Revision of Decisions on Grounds of Clear and 
Unmistakable Error

    1. The authority citation for part 20 is revised to read as 
follows:

    Authority: 38 U.S.C. 501(a) and as noted in specific sections.


Sec. 20.1400  [Amended]

    2. Section 20.1400(b)(1) is amended by removing ``Those decisions'' 
and adding, in its place, ``Decisions on issues''.

[FR Doc. 99-33995 Filed 12-29-99; 8:45 am]
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