[House Report 112-83]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-83
======================================================================
VETERANS APPEALS IMPROVEMENT ACT OF 2011
_______
May 20, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Miller of Florida, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany H.R. 1484]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 1484) to amend title 38, United States Code, to
improve the appeals process of the Department of Veterans
Affairs and to establish a commission to study judicial review
of the determination of veterans' benefits, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 3
Background and Need for Legislation.............................. 4
Hearings......................................................... 5
Subcommittee Consideration....................................... 5
Committee Consideration.......................................... 5
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 6
Statement of General Performance Goals and Objectives............ 6
New Budget Authority, Entitlement Authority, and Tax Expenditures 6
Earmarks and Tax and Tariff Benefits............................. 6
Committee Cost Estimate.......................................... 6
Congressional Budget Office Cost Estimate........................ 6
Federal Mandates Statement....................................... 7
Advisory Committee Statement..................................... 7
Applicability to Legislative Branch.............................. 7
Section-by-Section Analysis of the Legislation................... 7
Changes in Existing Law Made by the Bill as Reported............. 8
Amendment
The amendment is as follows:
Amendment in the Nature of a Substitute to H.R. 1484
Offered by Mr. McNerney of California
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veterans Appeals Improvement Act of
2011''.
SEC. 2. WAIVER OF REGIONAL OFFICE JURISDICTION OVER INCORPORATION OF
SUPPLEMENTAL EVIDENCE INTO PREVIOUSLY SUBMITTED
CLAIMS.
(a) Waiver.--Section 7104 of title 38, United States Code, is amended
by adding at the end the following new subsection:
``(f) If a claimant or the claimant's representative submits new
evidence in support of a case for which a substantive appeal has been
filed, such evidence shall be submitted to the Board directly and not
to the agency of jurisdiction, unless the claimant or the claimant's
representative requests that the evidence be reviewed by the agency of
jurisdiction before being submitted to the Board.''.
(b) Effective Date.--Subsection (f) of section 7104 of title 38,
United States Code, as added by subsection (a) of this section, shall
apply with respect to evidence submitted on or after the date that is
90 days after the date of the enactment of this Act.
SEC. 3. COMMISSION TO STUDY JUDICIAL REVIEW OF THE DETERMINATION OF
VETERANS' BENEFITS.
(a) Establishment.--There is established a commission to be known as
the ``Veterans Judicial Review Commission'' (in this section referred
to as the ``Commission'').
(b) Duties.--The Commission shall--
(1) evaluate the administrative and judicial appellate review
processes of veterans' and survivors' benefits determinations;
and
(2) make specific recommendations and offer solutions to
improve the accuracy, fairness, transparency, predictability,
timeliness, and finality of such appellate review processes,
including a recommendation as to whether the Court of Appeals
for Veterans Claims should have the authority to hear class
action or associational standing cases.
(c) Membership.--
(1) In general.--The Commission shall be composed of 13
members appointed as follows:
(A) Two individuals appointed by the Speaker of the
House of Representatives.
(B) Two individuals appointed jointly by the
President of the Senate and the President pro tempore.
(C) Two individuals appointed by the minority leader
of the House of Representatives.
(D) Two individuals appointed by the minority leader
of the Senate.
(E) Four individuals appointed by the President.
(F) One individual appointed by the President, by and
with the advice and consent of the Senate, who shall
serve as chairperson.
(2) Qualifications.--Individuals appointed under paragraph
(1) shall--
(A) be specially qualified to serve on the Commission
by virtue of their expert education, training, or
experience associated with veterans' benefits, judicial
review, constitutional law, or other areas of expertise
pertinent to the duties of the Commission; and
(B) include individuals who--
(i) are current or retired members of the
judiciary;
(ii) are members of the legal or academic
community; or
(iii) represent--
(I) veterans service organizations;
(II) legal service organizations; or
(III) other affected entities.
(3) Terms.--Each member shall be appointed for the life of
the Commission.
(4) Vacancy.--A vacancy in the Commission shall be filled in
the manner in which the original appointment was made.
(d) Meetings.--
(1) In general.--The Commission shall meet at the call of the
Chairperson or a majority of its members.
(2) Quorum.--A majority of the Commission shall constitute a
quorum but a lesser number may hold hearings.
(e) Pay.--
(1) Rates of pay.--Except as provided in paragraph (2),
members shall serve without pay.
(2) Travel expense.--Each member shall receive travel
expenses, including per diem in lieu of subsistence, in
accordance with applicable provisions under subchapter I of
chapter 57 of title 5, United States Code.
(f) Staff.--
(1) Director.--The Commission shall have a director who shall
be appointed by the Chairperson.
(2) Staff.--Subject to rules prescribed by the Commission,
the Chairperson may appoint additional personnel as the
Chairperson considers appropriate.
(3) Applicability of certain civil service laws.--The
director and staff of the Commission shall be appointed subject
to the provisions of title 5, United States Code, governing
appointments in the competitive service, and shall be paid in
accordance with the provisions of chapter 51 and subchapter III
of chapter 53 of that title relating to classification and
General Schedule pay rates.
(4) Experts and consultants.--Subject to rules prescribed by
the Commission, the Chairperson may procure temporary and
intermittent services under section 3109(b) of title 5, United
States Code.
(5) Staff to federal agencies.--Upon request of the
Chairperson, the head of any Federal department or agency may
detail, on a reimbursable basis, any of the personnel of that
department or agency to the Commission to assist it in carrying
out its duties under this section.
(g) Powers of Commission.--
(1) Hearings and sessions.--The Commission may, for the
purpose of carrying out this Act, hold hearings, sit and act at
times and places, take testimony, and receive evidence as the
Commission considers appropriate. The Commission may administer
oaths or affirmations to witnesses appearing before it.
(2) Powers of members and agents.--Any member or agent of the
Commission may, if authorized by the Commission, take any
action which the Commission is authorized to take by this
section.
(3) Obtaining official data.--The Commission may secure
directly from any department or agency of the United States
information necessary to enable it to carry out this Act. Upon
request of the Chairperson of the Commission, the head of that
department or agency shall furnish that information to the
Commission.
(4) Mails.--The Commission may use the United States mails in
the same manner and under the same conditions as other
departments and agencies of the United States.
(5) Administrative support services.--Upon the request of the
Commission, the Administrator of General Services shall provide
to the Commission, on a reimbursable basis, the administrative
support services necessary for the Commission to carry out its
responsibilities under this Act.
(h) Reports.--
(1) Interim report.--Not later than July 1, 2012, the
Commission shall submit to Congress an interim report of the
evaluation and recommendations made under subsection (b).
(2) Final report.--Not later than December 31, 2012, the
Commission shall submit to Congress a final report on the
activities of the Commission, including--
(A) specific recommendations and solutions proposed
by the Commission under subsection (b), including a
recommendation as to whether the Court of Appeals for
Veterans Claims should have the authority to hear class
action or associational standing cases;
(B) relevant background and statistical information
associated with such recommendations and solutions; and
(C) other information the Commission determines
appropriate.
(i) Termination.--The Commission shall terminate on the date that is
two years after the date on which the Commission submits the final
report pursuant to section (h)(2).
Purpose and Summary
H.R. 1484 was introduced on April 12, 2011, by Ranking
Member Bob Filner of California. H.R. 1484, as amended, would
direct the Board of Veterans' Appeals (BVA) to consider
evidence submitted by a claimant after a substantive appeal has
been filed unless the claimant elects to have the evidence
considered first by the Agency of Original Jurisdiction (AOJ).
H.R. 1484, as amended, would also create a Veterans Judicial
Review Commission charged with reviewing and making
recommendations to improve the appellate review process for
veterans' benefits.
Background and Need for Legislation
A claimant who files for benefits administered by the
Department of Veterans Affairs (VA) must submit evidence in
support of a claim to the appropriate AOJ. For claims arising
under benefit programs administered by the Veterans Benefits
Administration (VBA), the AOJ is generally one of 57 VBA
regional offices. Although the Veterans Health Administration
and the National Cemetery Administration render decisions on
benefit programs under their purview, the predominant arena for
claims decisions is at VA regional offices.
An AOJ is responsible for rendering a judgment on a claim
based on the evidence before it. Such a judgment represents the
initial decision of the Secretary of VA. Section 7104 of title
38, United States Code, affords claimants the opportunity to
appeal final AOJ decisions to the BVA. However, the law limits
claimants to one review on appeal and precludes BVA's ability
to consider new evidence submitted in connection with a claim
unless the claimant affirmatively waives the right for that
evidence to first be considered by the AOJ. The default
requirement for an AOJ to initially consider all evidence often
delays the final adjudication of claims. Newly submitted
evidence in support of claims on appeal must be sent back to an
AOJ for consideration when, in many instances, the claimant
would benefit from that evidence being considered de novo by
BVA.
Section 2 of H.R. 1484, as amended, would require new
evidence submitted by a claimant in support of a claim, for
which a substantive appeal has already been filed, to be
submitted directly to BVA and not an AOJ, unless a claimant
requests initial AOJ consideration of the evidence. Testifying
on behalf of the Disabled American Veterans (DAV) at the May 3,
2011, Subcommittee on Disability Assistance and Memorial
Affairs hearing, Mr. Jeffrey Hall stated that section two of
H.R. 1484 would help by ``avoiding a time consuming remand
process that delays final decisions to veterans and also wastes
VA resources in the process.'' The Committee agrees with the
expressed DAV position that section 2 of H.R. 1484 ``would be
beneficial to all parties involved.''
Section 3 of H.R. 1484, as amended, would establish a
Veterans Judicial Review Commission charged with reviewing and
making recommendations to Congress to improve the appellate
review process for veterans' benefits. The 13-member Commission
would also be charged with making a recommendation on whether
the U.S. Court of Appeals for Veterans Claims (CAVC) should
have the authority to hear class action or associated standing
cases. Testifying in support of H.R. 1484 at the May 3, 2011,
Subcommittee on Disability Assistance and Memorial Affairs
hearing, Ms. Christina Roof of AMVETS stated that the
Commission could help VBA ``gain valuable information that
could lead to great improvements to the entire claims
process.'' Given the seriousness of the disability claims
backlog problem, and the contribution of the appellate workload
as part of it, the Committee would welcome any new ideas for
improvement that a focused Commission might provide.
Hearings
On May 3, 2011, the Subcommittee on Disability Assistance
and Memorial Affairs conducted a legislative hearing on various
bills introduced during the 112th Congress, including H.R.
1484. The following witnesses testified:
Ms. Christina M. Roof, National Acting Legislative
Director, AMVETS; Mr. Jeffrey C. Hall, Assistant National
Legislative Director, Disabled American Veterans; Mr. Shane
Barker, Senior Legislative Associate, National Legislative
Service Veterans of Foreign Wars of the United States; Mr.
Barton F. Stichman, Joint Executive Director, National Veterans
Legal Service Program; The Honorable Bruce E. Kasold, Chief
Judge, United States Court of Appeals for Veterans Claims; Ms.
Diana M. Rubens, Associate Deputy Under Secretary for Field
Operations, Veterans Benefits Administration, who was
accompanied by Mr. Richard J. Hipolit, Assistant General
Counsel, U.S. Department of Veterans Affairs; and Mr. Steve
Keller, Acting Chairman, Board of Veterans' Appeals, U.S.
Department of Veterans Affairs.
Those submitting statements for the record included: The
Paralyzed Veterans of America.
Subcommittee Consideration
On May 5, 2011, the Subcommittee on Disability Assistance
and Memorial Affairs met in an open markup session and ordered
favorably forwarded to the full committee H.R. 1484, as
amended, by voice vote. During consideration of the bill the
following amendment was considered.
An amendment in the nature of substitute offered by Mr.
McNerney of California to make technical and conforming changes
to reflect issues raised by VA at the May 3, 2011 hearing was
agreed to by voice vote.
Committee Consideration
On May 12, 2011, the full Committee met in an open markup
session, a quorum being present, and ordered H.R. 1484, as
amended, reported favorably to the House of Representatives, by
voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report the legislation and amendments thereto.
There were no record votes taken on amendments or in connection
with ordering H.R. 1484, as amended, reported to the House. A
motion by Ranking Member Bob Filner of California to order H.R.
1484, as amended, reported favorably to the House of
Representatives was agreed to by voice vote.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives are reflected in the descriptive portions
of this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own, the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Earmarks and Tax and Tariff Benefits
H.R. 1484, as amended, does not contain any congressional
earmarks, limited tax benefits, or limited tariff benefits as
defined in clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own, the cost estimate on H.R.
1484, as amended, prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974.
Congressional Budget Office Cost Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate
for H.R. 1484, as amended, provided by the Congressional Budget
Office pursuant to section 402 of the Congressional Budget Act
of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 16, 2011.
Hon. Jeff Miller,
Chairman, Committee on Veterans' Affairs, House of Representatives,
Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 1484, the Veterans
Appeals Improvement Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
H.R. 1484--Veterans Appeals Improvement Act of 2011
H.R. 1484 would establish a commission to evaluate the
process of judicial review for veterans' and survivors'
benefits. The Veterans Judicial Review Commission would be
charged with recommending ways to improve aspects of the
appellate review process as it relates to veterans' benefits,
including its accuracy, timeliness, and transparency. The
commission also would be asked to determine the advisability of
authorizing the Court of Appeals for Veterans Claims to hear
cases brought on behalf of a group, such as class action suits.
The commission would consist of 13 members and would be
required to submit a final report to the Congress on its
activities by December 31, 2012. Members would serve without
pay but would be reimbursed for travel expenses. In addition,
the commission could hire staff and use personnel from other
federal agencies. The commission would terminate two years
after submitting its final report. Based on an analysis of the
costs of similar commissions, CBO estimates that implementing
H.R. 1484 would cost $2 million over the 2012-2015 period,
assuming the availability of appropriated funds.
Enacting H.R. 1484 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
H.R. 1484 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Dwayne M.
Wright. The estimate was approved by Theresa A. Gullo, Deputy
Assistant Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 1484, as amended, prepared by the
Director of the Congressional Budget Office pursuant to section
423 of the Unfunded Mandates Reform Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
1484, as amended.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section would provide the short title of H.R. 1484 as
the ``Veterans Appeals Improvement Act of 2011.''
Section 2. Waiver of regional office jurisdiction over incorporation of
supplemental evidence into previously submitted claims--
This section would amend Section 7104 of title 38, United
States Code by requiring that any new evidence submitted in
support of a case for which a substantive appeal has been filed
be submitted to the Board of Veterans' Appeals directly and not
to a VA regional office unless requested otherwise by the
veteran. The effective date of this provision is 90 days after
enactment.
Section 3. Veterans Judicial Review Commission
Subsection (a and b) would establish a ``Veterans Judicial
Review Commission'' with the purpose of evaluating the
appellate review process of veterans' and survivors' benefits
determinations and to make recommendations for improvement.
Subsection (c) would require the Commission to have 11
members, 2 appointed by the Speaker of the House of
Representatives, 1 by the Minority Leader of the House, 2
appointed jointly by the President of the Senate and the
President pro tempore, 1 by the minority leader of the Senate,
4 appointed by the President, and 1 Chairperson appointed by
the President with the advice and consent of the Senate. These
individuals would be highly qualified to serve the interests of
the Commission and would represent veterans service
organizations, the judiciary, legal service organizations,
academia, and other affected organizations. All members are
appointed for the life of the Commission and any vacancy would
follow the manner in which the original appointment was made.
Subsection (d) would establish the rules of meetings,
whereby the Commission shall meet at the call of the
Chairperson or a majority of the members. A majority of the
Commission would constitute a quorum, but less than a majority
may hold hearings.
Subsection (e) would establish that all members serve on
the Commission without pay and would receive travel expenses
and per diem in accordance with applicable provisions under
subchapter I of chapter 57 of title 5, USC.
Subsection (f) would establish a director and staff as
appointed by the Chairperson.
Subsection (g) would give the Commission the power to hold
hearings and sessions, including the taking of testimony,
administration of oaths, and affirmations to witnesses to
appear before it. Any member, if authorized by the Commission,
would be able to take any action which the Commission is
authorized to take.
Subsection (h) would require the Commission to submit an
interim report no later than July 1, 2011 on the evaluation and
recommendations made under subsection (b), including whether
the CAVC should have class action or associational standing
authority. A final report would be required by the Commission
no later than December 31, 2011 and be submitted to Congress.
Subsection (i) would terminate the Commission on the date
that is two years after the date on which the Commission
submitted the final report.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
* * * * * * *
CHAPTER 71--BOARD OF VETERANS' APPEALS
* * * * * * *
Sec. 7104. Jurisdiction of the Board
(a) * * *
* * * * * * *
(f) If a claimant or the claimant's representative submits
new evidence in support of a case for which a substantive
appeal has been filed, such evidence shall be submitted to the
Board directly and not to the agency of jurisdiction, unless
the claimant or the claimant's representative requests that the
evidence be reviewed by the agency of jurisdiction before being
submitted to the Board.