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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

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Department of Veterans Affairs.


Final rule.


This document affirms an amendment to 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 was made necessary by a decision of the United States Court of Appeals for the Federal Circuit.


Effective Date: July 17, 2002.

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Steven L. Keller, Senior Deputy Vice Chairman, Board of Veterans' Appeals (012), Department of Veterans Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).

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The Board of Veterans' Appeals (Board) is an administrative body that decides appeals from denial of claims for veterans' benefits. Among other remedies, appellants may challenge final Board decisions on the grounds that they were the product of clear and unmistakable error (CUE). 38 U.S.C. 7111; 38 CFR 20.1400-20.1411.

On July 10, 2001, VA published in the Federal Register at 66 FR 35902 an interim final rule relating to CUE motions. Essentially, that rule modified 38 CFR 20.1404 to provide that, where the motion does not meet the pleading requirements set forth in VA rules, the motion will be dismissed without prejudice to refiling.

We provided a 60-day comment period that ended on September 10, 2000. We received no comments. Based on the rationale set forth in the interim final rule, we adopt those changes as a final rule.

Administrative Procedure Act

This document without any changes affirm amendments made by an interim final rule that is already in effect. Accordingly, we have concluded under 5 U.S.C. 553 that there is good cause for dispensing with a delayed effective date based on the conclusion that such procedure is impracticable, unnecessary, and contrary to the public interest.

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 final rule would have no consequential effect on State, local, or tribal governments.

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 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 (RFA), 5 U.S.C. 601-612. Only VA beneficiaries could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

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List of Subjects in 38 CFR Part 20

  • Administrative practice and procedure
  • Claims
  • Veterans
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Start Printed Page 46870 Approved: July 3, 2002.

Anthony J. Principi,

Secretary of Veterans Affairs.

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Accordingly, the interim final amending 38 CFR part 20 which was published at 66 FR 35902 on July 10, 2001, is adopted as a final rule without change.

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[FR Doc. 02-17910 Filed 7-16-02; 8:45 am]