1997 CQ US HR 1090

105th Congress, 1st Session

[enacted 21 Nov 1997]

P.L. 105 - ___________

111 stat. _____________

H.R. 1090

One Hundred Fifth Congress of the

United States of America

AT THE FIRST SESSION

Began and held at the City of Washington on Tuesday, the

seventh day of January, one thousand nine hundred and ninety-seven

Re it enacted My the Senate and House of Representatives of the United States of America in Congress assembled,

[SECTION 1. REVISION OF DECISIONS BASED ON CLEAR AND UNMISTAKABLE ERROR

(a) ORIGINAL DECISIONS. -

(1) Chapter 51 of the 38, United States Code, is amended by inserting after section 5109 the following new section:

{38 USC § 5109A}

"Sec-5109A. Revision of decisions on grounds of dear and unmistakable error

"(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised

"(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

"(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary's own motion or upon request of the claimant.

"(d) A request for revision of a decision the Secretary based on clear and Unmistakable error may be made ax any time after that decision is made

"(e) Such a request shall be submitted to the Secretary and shall be decided in tile same manner as any other claim.".

(2) The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 5109 the following new item:

"5109A. Revision of decisions on grounds of clear and unmistakable error.".

(b) BVA DECISIONS--

(1) Chapter 71 of such tide is amended by adding at the end the following new section:

{38 USC § 7111

"Sec.7111 - Revision of decisions on grounds of clear and unmistakable error

"(a) A decision by the Board is subject to revision on The grounds of clear and unmistakable

error. If evidence establishes the error, the prior decision shall be reversed or revised

"(b) For the purposes of authorizing benefits a rating or other adjudicative decision of the Board that constitutes a reversal or revision of a prior decision of the Board on the grounds of clear -and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

"(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by -the Board on the Board's own motion or upon request of the claimant

"(d) A request for revision of a decision of the Board based on clear and unmistakable error may be nude at any -ins! after that decision is made

"(e) Such a request shall be submitted directly to the Board and shah be decided by the Board on the merits, -without referral to any adjudicative or hearing official acting on behalf of the Secretary.

"(f) A claim filed with the Secretary that requests reversal or revision of -a previous Board decision due to A= and unmistakable error shall be considered to be a request to the Board under this section, and the Secretary shall promptly transmit any such request to the Board for its consideration under this section.".

"(2) The table of sections at the beginning of such chapter is amended by adding at the end the

following new item!

(1) Sections 5109A and 7111 of We 38, United States (lode, as added by this section, apply to any determination made before, on, or after the dare of the enactment (Nov. 21, 19971 of this Act.

(2) Notwithstanding section 402 of the Veterans judicial Review Act (38 U.S.C. 7251 note {USCA page 26 col. 21), chapter 72 of title 38, United States Code, shall apply with respect to any decision of the Board of Veterans' Appeals on a claim alleging that a previous determination of the Board was the product of clear and unmistakable error if that claim is filed after, or was pending before the Department of Veterans Affairs the Court of Veterans Appeals, the Court of Appeals for the Federal Circuit, or the Supreme Court on the date of the enactment {Nov. 21, 1997) of this Act.

[introduced a HR 1090 by Rep. Lane Evans, D-IL, 3/14/97]

[HR Vets Affairs Cttee H Rpt 105-52, 4/14/97]

[passed House, 4/16/971

[Sen 'Vets Affairs Cttee discharged by unanimous consent,, 11/10/971

[(passed Senate, 11/10/97]

[presented to the President, 11/13/971

[signed by President Clinton, 11/21/97]

1997 CQ USHR 1090