[Federal Register Volume 66, Number 132 (Tuesday, July 10, 2001)]
[Rules and Regulations]
[Pages 35902-35903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-17137]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AK74


Board of Veterans' Appeals: Rules of Practice--Effect of 
Procedural Defects in Motions for Revision of Decisions on the Grounds 
of Clear and Unmistakable Error

AGENCY: Department of Veterans Affairs.

ACTION: Interim final rule with request for comments.

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SUMMARY: This document amends the Rules of Practice of the Board of 
Veterans' Appeals (Board) to provide that, when a motion to revise a 
Board decision on the grounds of clear and unmistakable error (CUE) 
fails to provide specific allegations of error, the Board will dismiss 
the motion without prejudice to refiling. This amendment is made 
necessary by a decision of the United States Court of Appeals for the 
Federal Circuit.

DATES: Effective Date: This interim final rule is effective July 10, 
2001. Comments must be received on or before September 10, 2001.

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; or fax comments to 
(202) 273-9289; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AK74.'' All comments received 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, Acting Vice 
Chairman, Board of Veterans' Appeals (01C), Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: The Board is an administrative body that 
decides appeals from denials of claims for veterans' benefits. The 
Board's 57 Members decide about 35,000 to 40,000 cases per year.
    In 1999, the Department of Veterans Affairs (VA) published rules 
implementing 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). 64 FR 2134 (Jan. 13, 
1999). Those regulations were challenged in the U.S. Court of Appeals 
for the Federal Circuit. On December 8, 2000, that court upheld all of 
the challenged regulations with the exception of Rule 1404(b) (38 CFR 
20.1404(b)). To the extent that Rule 1404(b) provided that a CUE motion 
which failed to specifically allege error would be denied, rather than 
dismissed without prejudice to refiling, the court stated:

    We hold that CUE Rule 1404(b) (codified at 38 CFR 20.1404(b)) is 
invalid because, in conjunction with the CUE Rule 1409(c) (codified 
at 38 CFR 20.1409(c)), it operates to prevent Board review of any 
CUE claim that is the subject of a motion that is denied for failure 
to comply with the pleading requirements of Rule 1404(b). That is 
contrary to the requirement of 38 U.S.C. 7111(e) that a CUE claim 
``shall be decided by the Board on the merits.''

Disabled American Veterans v. Gober, 234 F.3d 682, 704 (Fed. Cir. 
2000). See also id. at 698-99 (discussion of Rule 1404(b)).
    Based on that holding, this document amends Rule 1404(b) to provide 
that the Board will dismiss such motions without prejudice to refiling. 
The document also makes conforming changes to Rule 1409(b) (38 CFR 
1409(b)) to provide that the dismissal without prejudice of a CUE 
motion is not a final decision of the Board.
    This interim final rule concerns rules of agency procedure and 
practice. Accordingly, under the provisions of 5 U.S.C. 553, we are 
dispensing with prior notice and comment and a delayed effective date.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Regulatory Flexibility Act

    The Secretary hereby certifies that this interim final rule will 
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 will affect VA beneficiaries and will not 
affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this 
interim final rule is exempt from

[[Page 35903]]

the initial and final regulatory flexibility analyses requirement 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: June 29, 2001.
Anthony J. Principi,
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) and as noted in specific sections.

    2. In Sec. 20.1404, paragraph (b) is revised amended to read as 
follows:


Sec. 20.1404.  Rule 1404. Filing and pleading requirements; 
withdrawals.

* * * * *
    (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 dismissed without prejudice to refiling under this 
subpart.
* * * * *

    3. In Sec. 20.1409, paragraph (b) is revised amended to read as 
follows:


Sec. 20.1409.  Rule 1409. Finality and appeal.

* * * * *
    (b) For purposes of this section, a dismissal without prejudice 
under Rule 1404(a) (Sec. 20.1404(a) of this part), Rule 1404(b) 
(Sec. 20.1404(b)), or Rule 1404(f) (Sec. 20.1404(f)), or a referral 
under Rule 1405(e) is not a final decision of the Board.
* * * * *
[FR Doc. 01-17137 Filed 7-9-01; 8:45 am]
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