[Federal Register Volume 68, Number 177 (Friday, September 12, 2003)]
[Rules and Regulations]
[Pages 53681-53682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-23260]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AJ85


Board of Veterans' Appeals: Rules of Practice--Motions for 
Revision of Decisions on Grounds of Clear and Unmistakable Error: 
Advancement on the Docket

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) relating to challenges to Board decisions on 
the grounds of ``clear and unmistakable error'' (CUE). The amendment 
provides for advancing CUE motions on the docket.

DATES: Effective date: September 12, 2003.
    Comments: Comments must be submitted by October 14, 2003.

ADDRESSES: Mail or hand-deliver written comments to: Director, 
Regulations Management (00REG1), Department of Veterans Affairs, 810 
Vermont Ave., NW., Room 1064, Washington, DC 20420; or fax comments to 
(202) 273-9026; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AJ85.'' All written comments will be available for public 
inspection at the above address in the Office of Regulation Policy and 
Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., 
Monday through Friday (except holidays). Please call (202) 273-9515 for 
an appointment.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy 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. There 
are currently 54 Board members (Veterans Law Judges), who collectively 
decide on average approximately 35,000 such appeals per year.

Advancement on the Docket

    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 CUE.
    As published, the rules relating to CUE motions require that such 
motions be decided in accordance with their place on the Board's 
docket. 38 CFR 20.1405(a) (Rule 1405(a)). While appeals are subject to 
the same requirement, 38 U.S.C. 7107(a)(1), both section 7107(a)(2) and 
its implementing regulation provide for the earlier consideration of 
appeals in some circumstances, id. 7107(a)(2); 38 CFR 20.900(c) (Rule 
900(c)). Generally, Rule 900(c) provides that a case may be advanced on 
the docket if it involves an interpretation of law of general 
application affecting other claims or for other good cause. Examples of 
such good cause in Rule 900(c) include serious illness, extreme 
financial hardship which might be relieved in whole or in part if the 
benefits sought on appeal were granted, and administrative error which 
results in significant delay in docketing the appeal. That rule also 
provides specific filing requirements.
    However, because CUE motions are not appeals, and thus not subject 
to the various rules relating to appeals, 38 CFR 20.1402 (Rule 1402), 
we realized that there was no regulatory provision for advancing CUE 
motions on the docket.
    Because we believe that circumstances may warrant advancing a 
motion on the docket, we have amended Rule 1405(a), relating to the 
disposition of CUE motions, by redesignating paragraph (2) as paragraph 
(3), and adding a new paragraph (2), which provides that a CUE motion 
may be advanced on the docket subject to the substantive and procedural 
requirements of Rule 900(c).
    VA will consider public comment submitted to the address above, but 
it has not published a notice of proposed rulemaking on the amendment 
to this regulation, as allowed by 5 U.S.C. 553(b)(A) and (B). The 
affected regulation is a rule of agency procedure and practice. In 
addition, the agency for good cause finds that notice and public 
procedure thereon would be unnecessary. The substantive rules (subpart 
O of 38 CFR) were effective February 12, 1999. To avoid delay in the 
application of this liberalizing benefit, this amendment is effective 
immediately.

Regulatory Flexibility Act

    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 only the processing of claims by VA 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.

Executive Order 12866

    This document has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

Unfunded Mandates

    The Unfunded Mandates Reform Act requires at 2 U.S.C. 1532, that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector of 
$100 million or more in any given year. This rule would have no such 
effect on State, local, or tribal governments, or the private sector.

List of Subjects in 38 CFR Part 20

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

    Approved: August 4, 2003.
Anthony J. Principi,
Secretary of Veterans Affairs.

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For the reasons set out in the preamble, 38 CFR part 20 is amended as 
set forth below:

[[Page 53682]]

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

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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.

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2. In Sec.  20.1405, paragraph (a) is amended by redesignating 
paragraph (a)(2) as paragraph (a)(3), and adding a new paragraph (a)(2) 
to read as follows:


Sec.  20.1405  Rule 1405. Disposition.

    (a) * * *
    (2) Advancement on the docket. A motion may be advanced on the 
docket subject to the same substantive and procedural requirements as 
those applicable to an appeal under Rule 900(c) (Sec.  20.900(c) of 
this part).
* * * * *
[FR Doc. 03-23260 Filed 9-11-03; 8:45 am]
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