38 U.S.C. § 7261: Scope of review

Summary

The Court of Appeals for Veterans Claims must decide legal questions needed to resolve a case when they are raised. The Court can order the Secretary to act if the Secretary is unlawfully withholding or unreasonably delaying action. The Court can overturn decisions, findings (except certain factual findings), conclusions, rules, or regulations by the Secretary, the Board of Veterans’ Appeals, or the Board’s Chair if those actions are arbitrary, violate the Constitution, go beyond legal authority, or ignored required procedures. The Court can also reverse an adverse factual finding in a benefits case if that finding is clearly wrong. When making these decisions, the Court reviews the record from the Secretary and the Board. The Court must consider how the Secretary applied section 5107(b) and the rule about prejudicial error. The Court cannot hold a new trial on facts decided by the Secretary or the Board. If a Board decision is against a party only because the party failed to follow a regulation, the Court will only review whether the party complied and whether the regulation is valid.

Title 38, §7261

Veterans' Benefits, Source: USLM XML via OLRC

(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.

Notes & Related Subsidiaries

Editorial Notes

Amendments

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 Subsidiaries

Effective 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 AmendmentAmendment 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.

§7261 Scope of Review

Summary

Title 38, §7261

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Amendments

Amendments

Effective Date

Citations & Metadata