(a) General. Clear and unmistakable error is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied.
(b) Record to be reviewed—(1) General. Review for clear and unmistakable error in a prior Board decision must be based on the record and the law that existed when that decision was made.
(2) Special rule for Board decisions on legacy appeals issued on or after July 21, 1992. For a Board decision on a legacy appeal as defined in § 19.2 of this chapter issued on or after July 21, 1992, the record that existed when that decision was made includes relevant documents possessed by the Department of Veterans Affairs not later than 90 days before such record was transferred to the Board for review in reaching that decision, provided that the documents could reasonably be expected to be part of the record.
(c) Errors that constitute clear and unmistakable error. To warrant revision of a Board decision on the grounds of clear and unmistakable error, there must have been an error in the Board's adjudication of the appeal which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable.
(d) Examples of situations that are not clear and unmistakable error—(1) Changed diagnosis. A new medical diagnosis that “corrects” an earlier diagnosis considered in a Board decision.
(2) Duty to assist. The Secretary's failure to fulfill the duty to assist.
(3) Evaluation of evidence. A disagreement as to how the facts were weighed or evaluated.
(e) Change in interpretation. Clear and unmistakable error does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.
(Authority: 38 U.S.C. 501(a), 7111)
[57 FR 4109, Feb. 3, 1992, as amended at 84 FR 192, Jan. 18, 2019]
Notes of Decisions
Cited in
96
cases (
21 in the last 5 years), 1999–2026 · leading case:
George v. McDonough, 596 U.S. 740 (2022).
George v. McDonough, 596 U.S. 740 (2022).
· cites it 3× “38 CFR §20.1403 (a). Most important for present purposes, the history reveals 6 GEORGE v.”
Timothy J. Jordan v. Anthony J. Principi, 17 Vet. App. 261 (Vet. App. 2003).
· cites it 6× “[CUE] does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation of the statute or regulation.”
Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021).
· cites it 3× “3d at 1353–55 (dis- cussing the “well-established Bell rule”); 38 C.F.R. § 20.1403 (b) (codifying the Bell rule for “Board decisions on legacy appeals” for claims that pre-date Bell).”
Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005).
· cites it 4× “Nevertheless, in 2003, the Veterans Court affirmed the 1999 Board decision, finding no CUE because CUE “does not include the otherwise correct application of a statute or regulation where, subsequent to the Board decision challenged, there has been a change in the interpretation…”
Robert J. May v. R. James Nicholson, 19 Vet. App. 310 (Vet. App. 2005).
· cites it 4× “It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as…”
George v. McDonough, 991 F.3d 1227 (Fed. Cir. 2021).
· cites it 3× “DAV upheld, over rulemaking challenge, the validity of CUE regulation 38 C.F.R. § 20.1403 (e), which expressly states that CUE “does not include the otherwise correct ap- plication of a statute or regulation where, subsequent to the Board decision challenged, there has been a…”
Robert J. Ingram v. R. James Nicholson, 21 Vet. App. 232 (Vet. App. 2007).
· cites it 2× “2005); 38 C.F.R. § 20.1403 (e) (2006). Moreover, the failure to address a specific regulatory provision involves harmless error unless it is shown that the outcome would have been “manifestly different” had it been addressed.”
Disabled Am. Vets. v. Gober, 234 F.3d 682 (Fed. Cir. 2000).
· cites it 8× “38 C.F.R. § 20.1403 . Rule 1403(a) defines CUE using a “but for” test — but for the CUE, the result of a Board decision on an issue would have been different.”
George T. Richardson v. R. James Nicholson, 20 Vet. App. 64 (Vet. App. 2006).
· cites it 4× “38 C.F.R. § 20.1403 (d)(1) (2005) (a new medical diagnosis that "corrects" an earlier diagnosis cannot be the basis for a finding of CUE in a Board decision).”
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