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    38 USC Sec. 7261                                            01/19/04

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    TITLE 38 - VETERANS' BENEFITS

    PART V - BOARDS, ADMINISTRATIONS, AND SERVICES

    CHAPTER 72 - UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

    SUBCHAPTER II - PROCEDURE

-HEAD-

    Sec. 7261. Scope of review

-STATUTE-

      (a) In any action brought under this chapter, the Court of

    Appeals for Veterans Claims, to the extent necessary to its

    decision and when presented, shall - 

        (1) decide all relevant questions of law, interpret

      constitutional, statutory, and regulatory provisions, and

      determine the meaning or applicability of the terms of an action

      of the Secretary;

        (2) compel action of the Secretary unlawfully withheld or

      unreasonably delayed;

        (3) hold unlawful and set aside decisions, findings (other than

      those described in clause (4) of this subsection), conclusions,

      rules, and regulations issued or adopted by the Secretary, the

      Board of Veterans' Appeals, or the Chairman of the Board found to

      be - 

          (A) arbitrary, capricious, an abuse of discretion, or

        otherwise not in accordance with law;

          (B) contrary to constitutional right, power, privilege, or

        immunity;

          (C) in excess of statutory jurisdiction, authority, or

        limitations, or in violation of a statutory right; or
  
          (D) without observance of procedure required by law; and

        (4) in the case of a finding of material fact adverse to the

      claimant made in reaching a decision in a case before the

      Department with respect to benefits under laws administered by

      the Secretary, hold unlawful and set aside or reverse such

      finding if the finding is clearly erroneous.

      (b) In making the determinations under subsection (a), the Court

    shall review the record of proceedings before the Secretary and the

    Board of Veterans' Appeals pursuant to section 7252(b) of this

    title and shall - 

        (1) take due account of the Secretary's application of section

      5107(b) of this title; and

        (2) take due account of the rule of prejudicial error.

      (c) In no event shall findings of fact made by the Secretary or

    the Board of Veterans' Appeals be subject to trial de novo by the

    Court.

      (d) When a final decision of the Board of Veterans' Appeals is

    adverse to a party and the sole stated basis for such decision is

    the failure of the party to comply with any applicable regulation

    prescribed by the Secretary, the Court shall review only questions

    raised as to compliance with and the validity of the regulation.

-SOURCE-

    (Added Pub. L. 100-687, div. A, title III, Sec. 301(a), Nov. 18,

    1988, 102 Stat. 4115, Sec. 4061; amended Pub. L. 101-237, title VI,

    Sec. 602(c), Dec. 18, 1989, 103 Stat. 2095; renumbered Sec. 7261,

    Pub. L. 102-40, title IV, Sec. 402(b)(1), May 7, 1991, 105 Stat.

    238; Pub. L. 102-54, Sec. 14(e)(3), June 13, 1991, 105 Stat. 287;

    Pub. L. 102-83, Sec. 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6,

    1991, 105 Stat. 403-405; Pub. L. 105-368, title V, Sec. 512(a)(1),

    Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107-330, title IV, Sec.

    401(a), (b), Dec. 6, 2002, 116 Stat. 2832.)

-MISC1-

                                AMENDMENTS                            

      2002 - Subsec. (a)(4). Pub. L. 107-330, Sec. 401(a), inserted

    "adverse to the claimant" after "material fact" and "or reverse"

    after "and set aside".

      Subsec. (b). Pub. L. 107-330, Sec. 401(b), amended subsec. (b)

    generally. Prior to amendment, subsec. (b) read as follows: "In

    making the determinations under subsection (a) of this section, the

    Court shall take due account of the rule of prejudicial error."

      1998 - Subsec. (a). Pub. L. 105-368 substituted "Court of Appeals

    for Veterans Claims" for "Court of Veterans Appeals" in

    introductory provisions.

      1991 - Pub. L. 102-40 renumbered section 4061 of this title as

    this section.

      Subsec. (a)(1) to (3). Pub. L. 102-83, Sec. 4(b)(1), (2)(E),

    substituted "Secretary" for "Administrator" wherever appearing.

      Subsec. (a)(4). Pub. L. 102-83, Sec. 4(a)(3), (4), substituted

    "Department" for "Veterans' Administration".

      Pub. L. 102-83, Sec. 4(a)(1), substituted "administered by the

    Secretary" for "administered by the Veterans' Administration".

      Subsec. (c). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted

    "Secretary" for "Administrator".

      Pub. L. 102-54 amended subsec. (c) as in effect immediately

    before the enactment of Pub. L. 102-40 by substituting "Court" for

    "court".

      Subsec. (d). Pub. L. 102-83, Sec. 4(b)(1), (2)(E), substituted

    "Secretary" for "Administrator".

      1989 - Subsec. (a)(2). Pub. L. 101-237 inserted "or unreasonably

    delayed" after "withheld".

                     EFFECTIVE DATE OF 2002 AMENDMENT                 

      Pub. L. 107-330, title IV, Sec. 401(c), Dec. 6, 2002, 116 Stat.

    2832, provided that:

      "(1) Except as provided in paragraph (2), the amendments made by

    this section [amending this section] shall take effect on the date

    of the enactment of this Act [Dec. 6, 2002].

      "(2) The amendments made by this section shall apply with respect

    to any case pending for decision before the United States Court of

    Appeals for Veterans Claims other than a case in which a decision

    has been entered before the date of the enactment of this Act."

                     EFFECTIVE DATE OF 1998 AMENDMENT                 

      Amendment by Pub. L. 105-368 effective on first day of first

    month beginning more than 90 days after Nov. 11, 1998, see section

    513 of Pub. L. 105-368, set out as a note under section 7251 of

    this title.

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                   SECTION REFERRED TO IN OTHER SECTIONS               

      This section is referred to in section 7252 of this title.