01-17853. Board of Veterans' Appeals: Rules of Practice-Notification of Representatives in Connection With Motions for Revision of Decisions on Grounds of Clear and Unmistakable Error

AGENCY:

Department of Veterans Affairs.

ACTION:

Final rule.

SUMMARY:

This document adopts as a final rule the provisions of an interim final rule that amended the Rules of Practice of the Board of Veterans' Appeals (Board) relating to challenges to Board decisions on the grounds of “clear and unmistakable error” (CUE). The amendment provides for notification of the party's representative and an opportunity for a response when the Board receives a request for CUE review.

DATES:

Effective Date: July 17, 2001.

FOR FURTHER INFORMATION CONTACT:

Steven L. Keller (01C), Acting Vice Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420, [phone].

SUPPLEMENTARY INFORMATION:

The Board is an administrative body that decides appeals from denials of claims for veterans' benefits. There are currently 57 Board members, who decide 35,000 to 40,000 such appeals per year.

This amendment was previously published in the Federal Register as an interim final rule on February 12, 1999 at 64 FR 7090, with a request for comments by March 15, 1999. We received no comments. Based on the rationale set forth in the interim final rule, we are adopting its provisions as a final rule with minor technical changes.

Paperwork Reduction Act

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Unfunded Mandates

The Unfunded Mandates Reform Act requires (in section 202) 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 rule would have no consequential effect on State, local, or tribal governments.

Regulatory Flexibility Act

The Secretary hereby certifies that this final rule does not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rule would affect only the processing of claims by VA and would not affect small businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 20

• Administrative practice and procedure
• Claims
• Veterans

Approved: July 9, 2001.

Anthony J. Principi,

Secretary of Veterans Affairs.

For the reasons set out in the preamble, 38 CFR Part 20 is amended as set forth below:

PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

1. The authority citation for part 20 continues to read as follows:

Authority: 38 U.S.C. 501(a) and as noted in specific sections.

2. In subpart O, § 20.1405(a) is revised to read as follows:

§ 20.1405

Rule 1405. Disposition.

(a) Docketing and assignment; notification of representative—(1) General. Motions under this subpart will be docketed in the order received and will be assigned in accordance with § 19.3 of this title (relating to assignment of proceedings). Where an appeal is pending on the same underlying issue at the time the motion is received, the motion and the appeal may be consolidated under the same docket number and disposed of as part of the same proceeding. A motion may not be assigned to any Member who participated in the decision that is the subject of the motion. If a motion is assigned to a panel, the decision will be by a majority vote of the panel Members.

(2) Notification of representative. When the Board receives a motion under this subpart from an individual whose claims file indicates that he or she is represented, the Board shall provide a copy of the motion to the representative before assigning the motion to a Member or panel. Within 30 days after the date on which the Board provides a copy of the motion to the representative, the representative may file a relevant response, including a request to review the claims file prior to filing a further response. Upon request made within the time allowed under this paragraph (a)(2), the Board shall arrange for the representative to have the opportunity to review the claims file, and shall permit the representative a reasonable time after making the file available to file a further response.

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