Smith v. Brown

35 F.3d 1516 (Fed. Cir. 1994) ; Clearinghouse Number: 50632

Description

Board of Veterans Appeals’ Decisions Are Not Subject to Collateral Review for Clear and Unmistakable Error

Abstract

The Federal Circuit has held that final decisions of the Board of Veterans Appeals (BVA) are not subject to collateral review under 38 C.F.R. § 3.105(a). Appellee veteran had applied to reopen his twice-denied claim for service connection for his cervical and spine disabilities and his once-denied claim for a total disability rating. His application was denied. Veteran appealed, arguing that BVA had committed clear and unmistakable error in an earlier decision to deny reopening by failing to appreciate the meaning of testimony given by a doctor at a regional office hearing, which veteran contended would establish the necessary service connection. BVA characterized veteran’s allegation of clear and unmistakable error as an assertion of obvious error. Since veteran had made no formal request for reconsideration because of obvious error, BVA ruled that veteran’s allegations were not properly before it and rendered no decision thereon. Veteran appealed. The Court of Veterans’ Appeals determined that BVA had erred in failing to consider all the relevant evidence on veteran’s claim to total disability. In so ruling, the court held that BVA is required under 38 C.F.R. § 3.105(a) to adjudicate contentions that it has committed clear and unmistakable error in rendering previous decisions that have become final. The Department of Veterans Affairs appealed. Reversing, the court of appeals held that section 3.105 does not apply to BVA decisions. Noting that under 38 U.S.C. § 7103 Board decisions are final unless the chairman of the board exercises his discretion to order reconsideration, the court found that adopting appellee’s interpretation of section 3.105 would create a procedural overlap in the adjudicatory structure and would be inconsistent with congressional intent to make that type of review discretionary.

Additional Information

Attorney Information
Amicus Curiae represented by Gershon Ratner, Roberta Valente, National Veterans Legal Services Project, 2001 S St. NW, Washington, DC 20009-1125, (202) 265-8305.
Docket Date
1994-08-12 00:00:00+00:00

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