(a) General. A motion for revision of a decision based on clear and unmistakable error must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the veteran; the name of the moving party if other than the veteran; the applicable Department of Veterans Affairs file number; and the date of the Board of Veterans' Appeals decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.
(b) Specific allegations required. The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling under this subpart.
(c) Filing. A motion for revision of a decision based on clear and unmistakable error may be filed at any time. Such motions should be filed at the following address: Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038.
(d) Requests not filed at the Board. A request for revision transmitted to the Board by the Secretary pursuant to 38 U.S.C. 7111(f) (relating to requests for revision filed with the Secretary other than at the Board) shall be treated as if a motion had been filed pursuant to paragraph (c) of this section.
(e) Motions for reconsideration. A motion for reconsideration, as described in subpart K of this part, whenever filed, will not be considered a motion under this subpart.
(f) Withdrawal. A motion under this subpart may be withdrawn at any time before the Board promulgates a decision on the motion. Such withdrawal shall be in writing, shall be filed at the address listed in paragraph (c) of this section, and shall be signed by the moving party or by such party's representative. If such a writing is timely received, the motion shall be dismissed without prejudice to refiling under this subpart.
(Authority: 38 U.S.C. 501(a), 7111)
[64 FR 2139, Jan. 13, 1999, as amended at 66 FR 35903, July 10, 2001; 81 FR 32650, May 24, 2016; 84 FR 192, Jan. 18, 2019]
Notes of Decisions
Cited in
53
cases (
4 in the last 5 years), 2000–2023 · leading case:
Livesay v. Principi, 15 Vet. App. 165 (Vet. App. 2001).
Livesay v. Principi, 15 Vet. App. 165 (Vet. App. 2001).
· cites it 3× “” 38 C.F.R. § 20.1404 (b) (1999). Section 20.”
Simmons v. Principi, 17 Vet. App. 104 (Vet. App. 2003).
· cites it 4× “The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.”
Michael W. Canady v. R. James Nicholson, 20 Vet. App. 393 (Vet. App. 2006).
· cites it 14× “Canady's request for revision on the basis of CUE pursuant to 38 C.F.R. § 20.1404 (b) without prejudice to refiling, this type of dismissal is designated as "not a final decision of the Board" by 38 C.”
Andrews, Jr. v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005).
· cites it 2× “Although CUE claims must be pled with specificity, 38 C.F.R. § 20.1404 (b) (2004), Roberson requires the RO and the Board to “fully and sympathetically” develop a veteran’s pro se CUE motion “to its opti *1283 mum before deciding it on the merits.”
Michael T. Acciola v. James B. Peake, 22 Vet. App. 320 (Vet. App. 2008).
· cites it 3× “40, 44 (1993)); see also Andre, supra; 38 C.F.R. § 20.1404 (b) (2008) (A sufficiently pled CUE motion must “set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such…”
Disabled Am. Vets. v. Gober, 234 F.3d 682 (Fed. Cir. 2000).
· cites it 6× “We hold that the rule codified at 38 C.F.R. § 20.1404 (b) is invalid because, in conjunction with the rule codified at 38 C.”
Rogelio C. Gomez v. Robert A. McDonald, 28 Vet. App. 39 (Vet. App. 2015).
· cites it 6× “He cited 38 C.F.R. § 20.1404 (e) for the proposition that "motions to revise Board decisions on the basis of CUE may not also be considered motions for reconsideration of the Board decision.”
Robinson v. Mansfield, 21 Vet. App. 545 (Vet. App. 2008).
“In Andrews , the Federal Circuit actually discussed Sims and distinguished it on the basis that 38 C.F.R. § 20.1404 (b) imposes a "regulatory requirement for exhaustion.”
Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).
“38 CFR § 20.1404 (b) (emphases added); see Disabled Am.”
Dover v. McDonald, 818 F.3d 1316 (Fed. Cir. 2016).
“See 38 C.F.R. § 20.1404 (b). She requested remand so she could refile the CUE claim with the requisite specificity.”
— 38 C.F.R. § 20.1404(b) — 1 case
Simmons v. Principi, 17 Vet. App. 104 (Vet. App. 2003).
“The motion must set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.