(a) Binding decisions. A decision of a VA rating agency is binding on all VA field offices as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104. A binding agency decision is not subject to revision except by the Board of Veterans' Appeals, by Federal court order, or as provided in §§ 3.105, 3.2500, and 3.2600.
(b) Binding administrative determinations. Current determinations of line of duty, character of discharge, relationship, dependency, domestic relations questions, homicide, and findings of fact of death or presumptions of death made in accordance with existing instructions, and by application of the same criteria and based on the same facts, by either an Adjudication activity or an Insurance activity are binding one upon the other in the absence of clear and unmistakable error.
(c) Favorable findings. Any finding favorable to the claimant made by either a VA adjudicator, as described in § 3.103(f)(4), or by the Board of Veterans' Appeals, as described in § 20.801(a) of this chapter, is binding on all subsequent agency of original jurisdiction and Board of Veterans' Appeals adjudicators, unless rebutted by evidence that identifies a clear and unmistakable error in the favorable finding. For purposes of this section, a finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review.
[29 FR 1462, Jan. 29, 1964, as amended at 29 FR 7547, June 12, 1964; 56 FR 65846, Dec. 19, 1991; 66 FR 21874, May 2, 2001; 84 FR 167, Jan. 18, 2019]
Notes of Decisions
Cited in
328
cases (
79 in the last 5 years), 1985–2026 · leading case:
Trilles v. West, 13 Vet. App. 314 (Vet. App. 2000).
Trilles v. West, 13 Vet. App. 314 (Vet. App. 2000).
· cites it 8× “See 38 C.F.R. §§ 3.104 (a), 3.105, 3.905(d), 20.”
Walters v. Nat'l Assn. of Radiation Survivors, 473 U.S. 305 (1985).
· cites it 2× “See 38 CFR §§ 3.104 , 3.105 (1984). Although there are time limits for submitting a notice of disagreement and although a claimant may prejudice his opportunity to challenge factual or legal decisions by failing to challenge them in that notice, the time limit is quite liberal …”
Thompson v. Derwinski, 1 Vet. App. 251 (Vet. App. 1991).
· cites it 3× “” Pursuant to this statutory authority the VA has promulgated 38 C.F.R. §§ 3.104 and 3.105 (1990) which permit the Board to correct “clear and unmistakable error.”
Majeed v. Principi, 16 Vet. App. 421 (Vet. App. 2002).
· cites it 10× “He states that, under 38 C.F.R. §§ 3.104 (a) and 3.105(b), the decision of the Winston-Salem RO was binding on VA in all subsequent determinations.”
Murincsak v. Derwinski, 2 Vet. App. 363 (Vet. App. 1992).
· cites it 2× “65,846 (1991) (to be codified as amended at 38 C.F.R. § 3.104 (a)) (effective Jan. 21, 1992).”
Lynch v. West, 12 Vet. App. 391 (Vet. App. 1999).
· cites it 8× “The veteran then appealed to the Federal Circuit, where he “eontend[ed] that the 1983 [medical] report should be considered ‘on file’ with [VA] not under Bell , but under 38 C.F.R. § 3.104 (a) (1998)[,] and therefore [was] part of the record before the RO when it made its [1983]…”
West v. Brown, 7 Vet. App. 329 (Vet. App. 1995).
· cites it 2× “In the Statement of the Case (SOC) prepared February 8, 1988, the RO listed the pertinent law and regulations, including 38 C.F.R. § 3.104 (a) (1987). A BVA decision dated September 13,1988, remanded the appellant’s 1987 claim for service connection for a left eye disorder so…”
Floyd v. Brown, 9 Vet. App. 88 (Vet. App. 1996).
“The court there applied that canon in determining that the regulatory reference to AOJs in 38 C.F.R. § 3.104 (a) does not also include the BVA in the absence of express reference to the Board.”
— 38 C.F.R. § 3.104(a) — 2 cases
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