C.F.R. » Title 38 » CHAPTER I—DEPARTMENT OF VETERANS AFFAIRS › PART 20—BOARD OF VETERANS' APPEALS: RULES OF PRACTICE › Subpart O—Revision of Decisions on Grounds of Clear and Unmistakable Error

38 C.F.R. § 20.1400

Rule 1400. Motions to revise Board decisions

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(a) Review to determine whether clear and unmistakable error exists in a final Board decision may be initiated by the Board, on its own motion, or by a party to that decision (as the term “party” is defined in Rule 1401(b) (§ 20.1401(b) of this part) in accordance with Rule 1404 (§ 20.1404 of this part).

(b) All final Board decisions are subject to revision under this subpart except:

(1) Decisions on issues which have been appealed to and decided by a court of competent jurisdiction; and

(2) Decisions on issues which have subsequently been decided by a court of competent jurisdiction.

(Authority: 38 U.S.C. 501(a), 7111) [64 FR 2139, Jan. 13, 1999, as amended at 64 FR 73414, Dec. 30, 1999]
Notes of Decisions
Cited in 60 cases (7 in the last 5 years), 2000–2026 · leading case: Thomas F. Cacciola v. Sloan D. Gibson, 27 Vet. App. 45 (Vet. App. 2014).
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Thomas F. Cacciola v. Sloan D. Gibson, 27 Vet. App. 45 (Vet. App. 2014). · cites it 19× “Consistent with the Secretary's interpretation of 38 C.F.R. § 20.1400 (b)(1) (2014), which precludes revision of final Board decisions on issues that have been appealed to and decided by a court of competent jurisdiction, the Court holds that an abandoned issue is not decided by…”
Randy L. Pederson v. Robert A. McDonald, 27 Vet. App. 276 (Vet. App. 2015). · cites it 6× “§ 7111 , found in 38 C.F.R. §§ 20.1400 (b) and 20.1409(c) setting forth the conditions governing revision of Board decisions on the basis of CUE when a request for revision cannot be entertained because there is an intervening Court action affirming the Board decision in which…”
Shelia Winsett v. Anthony J. Principi, Sec'y of Vet. Affairs, 341 F.3d 1329 (Fed. Cir. 2003). · cites it 7× “The Board dismissed Win-sett’s CUE claim on the ground that 38 C.F.R. § 20.1400 (b) foreclosed CUE attacks on the Board’s 1995 decision when the Court of Veterans Appeals and this court had affirmed that decision.”
Denise Jarrell v. R. James Nicholson, 20 Vet. App. 326 (Vet. App. 2006). · cites it 2× “2002) (en banc); 38 C.F.R. § 20.1400 (2005), reopened based on new and material evidence, see 38 U.”
Robert J. May v. R. James Nicholson, 19 Vet. App. 310 (Vet. App. 2005). · cites it 3× “However, an answer in the negative would leave the Court with the anomalous result that it now faces — review of the same Board decision via direct review and via review of a Board denial of revision on the grounds of CUE (the latter being a CUE claim that, as discussed below,…”
James R. Cook, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 318 F.3d 1334 (Fed. Cir. 2003). “See 38 C.F.R. §§ 20.1400 1411. Although neither section *1346 7111 nor its implementing rules are before us today, it is worth noting that the rules adopt the requirements that in order for an error to rise to the level of CUE, it must be outcome-determinative and must be based…”
Robinson v. Mansfield, 21 Vet. App. 545 (Vet. App. 2008). “See 38 C.F.R. § 20.1400 (b)(2) (2007) (“All final Board decisions are subject to revision under this subpart except:.”
Joseph C. Hillyard v. Eric K. Shinseki, 24 Vet. App. 343 (Vet. App. 2011). · cites it 2× “See 38 C.F.R. § 20.1400 (a) (“Review to determine whether clear and unmistakable error exists in a final Board decision may be initiated by the Board, on *354 its own motion.”
Eugene Newcombe v. United States, 933 F.3d 915 (8th Cir. 2019). “See 38 C.F.R. §§ 20.1400 - 20.1411. Clear and unmistakable error is a very specific and rare kind of error.”
Nat'l Org. Of Vets. Advocates v. Secr'y Of Vets. Affairs, 260 F.3d 1365 (Fed. Cir. 2001). “See 38 C.F.R. 20.1400(a), 20.1401(b). Thus, argue petitioners, survivors lack standing to file CUE claims for DIC benefits, and 3.”
Garcia v. Wilkie, 908 F.3d 728 (Fed. Cir. 2018). · cites it 2× “This case involves the latter form of collateral attack-a request for revision of a Board decision based on clear and unmistakable error under § 7111, which provides, in pertinent part: (a) A decision by the Board is subject to revision on the grounds of clear and unmistakable…”
George T. Richardson v. R. James Nicholson, 20 Vet. App. 64 (Vet. App. 2006). · cites it 2× “The Court agrees that revision of a prior decision on the basis of CUE can only be based on a final decision by the RO or the Board.”
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— 38 C.F.R. § 20.1400(a) — 1 case
Nat'l Org. Of Vets. Advocates v. Secr'y Of Vets. Affairs, 260 F.3d 1365 (Fed. Cir. 2001). “See 38 C.F.R. 20.1400(a), 20.1401(b). Thus, argue petitioners, survivors lack standing to file CUE claims for DIC benefits, and 3.”
— 38 C.F.R. § 20.1400(b) — 1 case
Joseph C. Hillyard v. Eric K. Shinseki, 24 Vet. App. 343 (Vet. App. 2011). “See 38 C.F.R. § 20.1400 (a) (“Review to determine whether clear and unmistakable error exists in a final Board decision may be initiated by the Board, on *354 its own motion.”
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