38 USC § 7261 - Scope of review

(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.

Source

(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.)

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. 105–368substituted “Court of Appeals for Veterans Claims” for “Court of Veterans Appeals” in introductory provisions.

1991—Pub. L. 102–40renumbered 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. 102–54amended subsec. (c) as in effect immediately before the enactment of Pub. L. 102–40by 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. 101–237inserted “or unreasonably delayed” after “withheld”.

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 Amendment

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