[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38 CFR 20.1403]

[Page 145-148]

TITLE 38 -- PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS

PART 20 -- BOARD OF VETERANS' APPEALS: RULES OF PRACTICE -- Table of Contents

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

Sec. 20.1403 Rule 1403. What constitutes clear and unmistakable error; what does not.
    (a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
    (b) Record to be reviewed--(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.
        (2) Special rule for Board decisions issued on or after July 21, 1992. For a Board decision issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.
    (c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.
    (d) Examples of situations that are not clear and unmistakable error--(1) Changed diagnosis. A new medical diagnosis that ``corrects'' an earlier diagnosis considered in a Board decision.
        (2) Duty to assist. The Secretary's failure to fulfill the duty to assist.
        (3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.
    (e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.

(Authority: 38 U.S.C. 501(a), 7111)

Editorial Note: For Federal Register citations affecting Sec. 3.1, see the List of Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.

PART I -- DEPT OF VA       CFR





You'all come back real soon.     We ain't done yet.

Published by a vet for vets.

Use it, take it ; no copyright (ever) here.

Please send me an email for corrections, update and other important links for vets!