IIA
105TH CONGRESS
1ST SESSION H.R. 1090
IN THE SENATE OF THE UNITED STATES
APRIL 17, 1997
Received; read twice and referred to the Committee on Veterans’ Affairs
AN ACT
To amend title 38, United States Code, to allow revision
of veterans benefits decisions based on clear and unmis-
takable error.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
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SECTION 1. REVISION OF DECISIONS BASED ON CLEAR
AND UNMISTAKABLE ERROR.
(a) ORIGINAL DECISIONS.—(1) Chapter 51 of title
38, United States Code, is amended by inserting after sec-
tion 5109 the following new section:
‘‘§ 5109A. Revision of decisions on grounds of clear
and unmistakable error
‘‘(a) A decision by the Secretary under this chapter
is subject to revision on the grounds of clear and unmis-
takable error. If evidence establishes the error, the prior
decision shall be reversed or revised.
‘‘(b) For the purposes of authorizing benefits, a rat-
ing or other adjudicative decision that constitutes a rever-
sal or revision of a prior decision on the grounds of clear
and unmistakable error has the same effect as if the deci-
sion had been made on the date of the prior decision.
‘‘(c) Review to determine whether clear and unmis-
takable error exists in a case may be instituted by the Sec-
retary on the Secretary’s own motion or upon request of
the claimant.
‘‘(d) A request for revision of a decision of the Sec-
retary based on clear and unmistakable error may be made
at any time after that decision is made.
‘‘(e) Such a request shall be submitted to the Sec-
retary and shall be decided in the same manner as any
other claim.’’.
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(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 title
is amended by adding at the end the following new section:
‘‘§ 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 evi-
dence establishes the error, the prior decision shall be re-
versed or revised.
‘‘(b) For the purposes of authorizing benefits, a rat-
ing or other adjudicative decision of the Board that con-
stitutes 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 unmis-
takable 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 made at
any time after that decision is made.
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‘‘(e) Such a request shall be submitted directly to the
Board and shall be decided by the Board on the merits,
without referral to any adjudicative or hearing official act-
ing on behalf of the Secretary.
‘‘(f) A claim filed with the Secretary that requests
reversal or revision of a previous Board decision due to
clear 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:
‘‘7111. Revision of decisions on grounds of clear and unmistakable error.’’.
(c) EFFECTIVE DATE.—(1) Sections 5109A and
7111 of title 38, United States Code, as added by this
section, apply to any determination made before, on, or
after the date of the enactment of this Act.
(2) Notwithstanding section 402 of the Veterans Ju-
dicial Review Act (38 U.S.C. 7251 note), 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
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Court of Appeals for the Federal Circuit, or the Supreme
Court on, the date of the enactment of this Act.
Passed the House of Representatives April 16, 1997.
Attest:
ROBIN H. CARLE,
Clerk.