U.S. Code » Title 38 » Part PART V— BOARDS, ADMINISTRATIONS, AND SERVICES › Chapter CHAPTER 72— UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS › Subchapter SUBCHAPTER II— PROCEDURE

38 U.S.C. § 7261

Scope of review

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(a) In any action brought under this chapter, the Court of Appeals for Veterans Claims, to the extent necessary to its decision and when presented, shall—(1) decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary;(2) compel action of the Secretary unlawfully withheld or unreasonably delayed;(3) hold unlawful and set aside decisions, findings (other than those described in clause (4) of this subsection), conclusions, rules, and regulations issued or adopted by the Secretary, the Board of Veterans’ Appeals, or the Chairman of the Board found to be—(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;(B) contrary to constitutional right, power, privilege, or immunity;(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or(D) without observance of procedure required by law; and(4) in the case of a finding of material fact adverse to the claimant made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside or reverse such finding if the finding is clearly erroneous.(b) In making the determinations under subsection (a), the Court shall review the record of proceedings before the Secretary and the Board of Veterans’ Appeals pursuant to section 7252(b) of this title and shall—(1) take due account of the Secretary’s application of section 5107(b) of this title; and(2) take due account of the rule of prejudicial error.(c) In no event shall findings of fact made by the Secretary or the Board of Veterans’ Appeals be subject to trial de novo by the Court.(d) When a final decision of the Board of Veterans’ Appeals is adverse to a party and the sole stated basis for such decision is the failure of the party to comply with any applicable regulation prescribed by the Secretary, the Court shall review only questions raised as to compliance with and the validity of the regulation.(Added Pub. L. 100–687, div. A, title III, § 301(a), Nov. 18, 1988, 102 Stat. 4115, § 4061; amended Pub. L. 101–237, title VI, § 602(c), Dec. 18, 1989, 103 Stat. 2095; renumbered § 7261, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, § 14(e)(3), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, § 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 105–368, title V, § 512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–330, title IV, § 401(a), (b), Dec. 6, 2002, 116 Stat. 2832.)Editorial NotesAmendments

2002—Subsec. (a)(4). Pub. L. 107–330, § 401(a), inserted “adverse to the claimant” after “material fact” and “or reverse” after “and set aside”.

Subsec. (b). Pub. L. 107–330, § 401(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: “In making the determinations under subsection (a) of this section, the Court shall take due account of the rule of prejudicial error.”

1998—Subsec. (a). Pub. L. 105–368 substituted “Court of Appeals for Veterans Claims” for “Court of Veterans Appeals” in introductory provisions.

1991—Pub. L. 102–40 renumbered section 4061 of this title as this section.

Subsec. (a)(1) to (3). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” wherever appearing.

Subsec. (a)(4). Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.

Subsec. (c). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”.

Pub. L. 102–54 amended subsec. (c) as in effect immediately before the enactment of Pub. L. 102–40 by substituting “Court” for “court”.

Subsec. (d). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”.

1989—Subsec. (a)(2). Pub. L. 101–237 inserted “or unreasonably delayed” after “withheld”.

Statutory Notes and Related SubsidiariesEffective Date of 2002 Amendment

Pub. L. 107–330, title IV, § 401(c), Dec. 6, 2002, 116 Stat. 2832, provided that:“(1) Except as provided in paragraph (2), the amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Dec. 6, 2002].“(2) The amendments made by this section shall apply with respect to any case pending for decision before the United States Court of Appeals for Veterans Claims other than a case in which a decision has been entered before the date of the enactment of this Act.”

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Notes of Decisions
Cited in 1,240 cases (127 in the last 5 years), 1991–2026 · leading case: Dingess - Hartman v. Nicholson
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Dingess - Hartman v. Nicholson (2006) cavc · cites it 18× “These holdings and the application of the rule of prejudicial error under 38 U.S.C. § 7261 (b)(2), lead to the following conclusions: (1) In Dingess, the Board erred in not providing adequate notice on how to substantiate a TDIU claim, and, applying the rule of prejudicial…”
Barney O. Padgett v. R. James Nicholson (2005) cavc · cites it 26× “See 38 U.S.C. § 7261 (b)(2) (Court shall take due account of rule of prejudicial error).”
Alfonso Medrano v. R. James Nicholson (2007) cavc · cites it 17× “Nonetheless, citing 38 U.S.C. § 7261 (b)(2) and Conway v. Principi, 353 F.”
Lonnie A. Overton v. R. James Nicholson (2006) cavc · cites it 16× “We hold that the Board erred by relying, in part, upon a Statement of the Case (SOC), an SSOC, and a previous Board decision to conclude that adequate section 5103(a) notice had been provided to Mr.”
Molina v. Astrue (2012) ca9 · cites it 4× “1696 (quoting 38 U.S.C. § 7261 (b)(2)), which the Supreme Court held "requires the Veterans Court to apply the same kind of `harmless-error' rule that courts ordinarily apply in civil cases," id.”
Larry A. Pelegrini v. Anthony J. Principi (2004) cavc · cites it 6× “39, 45 (2000) (remanding because BVA determinations on certain enumerated questions would be helpful to Court's review of the matter; further, such would likely benefit Court by producing better records for appellate review of Board decision and may result in VA self-correcting…”
Butts v. Brown (1993) cavc · cites it 13× “38 U.S.C.A. § 7261 (a)(4) (West 1991); Gilbert v.”
McLendon v. Nicholson (2006) cavc · cites it 6× “See 38 U.S.C. § 7261 (a)(3)(A) (Court shall hold unlawful decisions by the Board that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”); Marrero v.”
Segundo Mariano v. Anthony J. Principi (2003) cavc · cites it 12× “” Stegall, 11 Vet. App. 268, 271 (1998). Here, those terms were not satisfied, and “the Court cannot say, based on the record before it, that the appellant here has not been harmed.”
Thomas G. Joyce v. R. James Nicholson (2005) cavc · cites it 18× “Russell also established that, when the Court considers a Board determination that there was no CUE in a prior final RO decision, the Court's review is limited to deciding whether the Board's conclusion is "arbitrary, capricious, an abuse of discretion, or otherwise not in…”
Martin v. O'Rourke (2018) cafc · cites it 6× “” 38 U.S.C. § 7261 (d)(2). This court does, however, have jurisdiction to “decide all relevant questions of law, including interpreting constitutional and statutory provi- sions.”
L IZZIE K. M AY FIELD v. R. James Nicholson (2005) cavc · cites it 7× “In a case involving the sufficiency of notice to a veteran regarding an impending foreclosure based on a default under a VA-guaranteed home loan, the Court assessed the sufficiency of the notice under the “clearly erroneous” standard of review set forth in 38 U.”
Show all 1,240 citing cases →
— 38 U.S.C. § 7261(a) — 1 case
Minns v. Wilkie (2020) cafc
— 38 U.S.C. § 7261(a)(1) — 2 cases
Bruce E. Lane, Claimant-Appellant v. Anthony J. Principi, Secretary of Veterans Affairs (2003) cafc
Barbara A. Carbino, Claimant-Appellant v. Togo D. West, Jr., Secretary of Veterans Affairs (1999) cafc
— 38 U.S.C. § 7261(a)(4) — 1 case
Hayes-Libby v. Collins (2025) cafc
— 38 U.S.C. § 7261(b)(2) — 3 cases
Stinson v. McDonough (2024) cafc
Charlotte Reliford v. Robert A. McDonald (2015) cavc
Stinson v. McDonough (2024) cafc
— 38 U.S.C. § 7261(c) — 1 case
Rodenhizer v. McDonough (2024) cafc
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