Clear And Unmistakable Error

[Guest rickb54]

[Code of Federal Regulations]

[Title 38, Volume 2]

[Revised as of July, 2002]

From the U.S. Government Printing Office via GPO Access

[CITE: 38CFR20.1403]

[Page 106]

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

CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS (CONTINUED)

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. (:D 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.

© 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)