[House Report 115-135]
[From the U.S. Government Publishing Office]
115th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 115-135
======================================================================
VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017
_______
May 19, 2017.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Roe of Tennessee, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany H.R. 2288]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 2288) to amend title 38, United States Code, to
reform the rights and processes relating to appeals of
decisions regarding claims for benefits under the laws
administered by the Secretary of Veterans Affairs, and for
other purposes, having considered the same, report favorably
thereon without amendment and recommend that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 4
Hearings......................................................... 5
Subcommittee Consideration....................................... 6
Committee Consideration.......................................... 6
Committee Votes.................................................. 6
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.......................................... 7
Congressional Budget Office Estimate............................. 7
Federal Mandates Statement....................................... 9
Advisory Committee Statement..................................... 9
Constitutional Authority Statement............................... 9
Applicability to Legislative Branch.............................. 9
Statement on Duplication of Federal Programs..................... 9
Disclosure of Directed Rulemaking................................ 9
Section-by-Section Analysis of the Legislation................... 10
Changes in Existing Law Made by the Bill as Reported............. 14
Purpose and Summary
H.R. 2288, the Veterans Appeals Improvement and
Modernization Act of 2017, was introduced by Representative
Mike Bost of Illinois on May 2, 2017. The purpose of H.R. 2288
is to expedite VA's appeals process while protecting veterans'
due process rights.
Under H.R. 2288, a veteran who is dissatisfied with VA's
decision on his or her claim for disability benefits would be
able to appeal within one year of VA's decision. The bill gives
veterans who file an appeal three procedural options:
(1) Request a higher-level review by a regional
office (RO) in which the adjudicator would review the
same evidence considered by the original claims
processor. The veteran may request that a VA employee
located at another RO review the appeal, and the
Department may not deny such request without good
cause.
(2) File a supplemental claim, which would allow the
veteran to submit new evidence to the RO and/or have a
hearing.
(3) Transfer jurisdiction of the claim immediately to
the Board of Veterans' Appeals (Board). At the Board,
the veteran would have the opportunity to select an
expedited review, in which the veteran would not have a
hearing, but would be able to submit new evidence at
certain stages in the appeals process. Alternatively,
the veteran would have the option to submit new
evidence and request a Board hearing.
The Board would maintain at least two dockets. One docket
will be for cases in which the veteran waives a hearing and the
ability to submit new evidence. A second docket will be for
cases in which the veteran requests a hearing. The Board would
have the flexibility to establish additional dockets, i.e., a
docket for cases in which the veteran submits new evidence but
waives a hearing. The Board would decide each case in regular
order according to its respective place on the docket to which
it is assigned. However, the Board may advance a case for
earlier consideration if the veteran is seriously ill, is under
severe financial hardship, or for other sufficient cause.
H.R. 2288 provides that if a veteran disagrees with VA's
determination with respect to a claim with multiple issues, the
veteran would be allowed to appeal VA's determination on each
issue separately. The bill also clarifies that VA may allow
veterans who choose one appeals option, but subsequently
determines that they would prefer to change to another option,
to do so. For example, under the bill, if a veteran requested a
hearing at the Board, but later decides that he or she does not
want a hearing, VA has the authorization to develop policies
that would allow such veterans to switch to the no hearing
docket. However, H.R. 2288 does not mandate that VA allow
veterans to switch from one option to another. It is expected
that the Secretary will use their discretion to develop
policies that are in the best interest of veterans.
H.R. 2288 would allow a veteran to maintain the original
effective date of their claim, regardless of the number of
times the veteran appeals the decision, even if the veteran
receives an adverse decision at the Court of Appeals for
Veterans Claims (CAVC). However, to maintain the original
effective date, veterans would be required to submit new and
relevant evidence within a year of the most recent decision.
New and relevant evidence is a change from the previous
standard of new and material evidence; the intent behind the
change is to lower the current burden. VBA and the Board would
be required to notify the veteran if VA does not consider
evidence that the veteran did not file timely. Such notice
would also detail any options that may be available to the
claimant for having VA consider such evidence.
To streamline the process, VA's statutory duty to assist
would terminate after VA issues the original rating decision.
Nevertheless, if the Board or higher-level adjudicator
discovers a duty to assist error that occurred in the rating
decision, the claim would be sent back to the RO, unless the
claim could be granted in full. If the claim is returned to the
RO, the RO would have to correct any errors and readjudicate
the claim. Additionally, H.R. 2288 would require VA to expedite
appeals returned to the RO by a higher-level reviewer or the
Board.
Moreover, the bill would allow veterans to retain the
services of attorneys and accredited agents who charge a fee
when the agency of original jurisdiction (AOJ) provides notice
of the original decision. Current law allows attorneys and
accredited agent to charge a fee for services rendered after
the veteran files a notice of disagreement.
To help veterans better understand VA's decision on their
claims, the bill includes a statutory requirement that VA issue
detailed decision notification letters. Under the bill, a
decision letter would include a summary of the evidence, a
summary of applicable laws and regulations, an explanation of
how the veteran may obtain a copy of the evidence used in
making the decision, and VA's favorable findings, if any. If
the veteran's claim is denied, the letter would also explain
why the claim was denied, and describe the evidence VA would
need to grant service connection or the next higher-level of
compensation. The intent of this provision is to help better
inform the veteran's decision regarding whether to appeal VA's
rating decision.
Additionally, H.R. 2288 would allow certain veterans who
initiated an appeal prior to the bill's effective date to opt-
in to the modernized appeals system. To avoid overwhelming the
new system, the bill limits the opt-in to claimants who receive
a statement of the case (SOC) or a supplemental statement of
the case (SSOC) after the effective date of the legislation.
Claimants who receive their initial decision after the bill is
enacted, but before the effective date of the law, may also be
allowed to opt-in to the improved appeals system.
To address concerns raised by the Government Accountability
Office (GAO) with respect to VA's readiness to implement
appeals reform,\1\ the bill would direct VA to provide a
comprehensive plan for processing ``legacy appeals''\2\ and
implementing the reform proposal to Congress and GAO within 90
days after the date of enactment. GAO would then assess such
plan and submit written findings and recommendations to
Congress 90 days after receipt of the plan. Moreover, H.R. 2288
would give VA the authority to test the new system prior to
full implementation, including conducting a pilot program or
phasing-in implementation. For example, the bill authorizes VA
to establish a Fully Developed Appeals pilot program, but does
not require VA to conduct such a pilot, otherwise perform
testing of assumptions, or implement a phase-in for
implementation.\3\
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\1\U.S. Government Accountability Office, Additional Planning Would
Enhance Efforts to Improve the Timeliness of Appeals Decisions (GAO-17-
234) (March 23, 2017).
\2\Legacy appeals are those appeals that will be pending as of the
effective date of H.R. 2288.
\3\Fully Developed Appeals are appeals in which the veteran waives
a hearing and does not submit additional evidence.
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Before full implementation, the bill would mandate that the
Secretary of the Department of Veterans Affairs (Secretary),
without delegation, certify and confirm that the Department has
sufficient resources, personnel, office space, procedures, and
information technology to carry out the new appeals system and
process appeals under both the modernized system and the legacy
system. Before making such certification, the bill would
require VA, at a minimum, to collaborate, partner with, and
give weight to the advice of the three veterans service
organizations (VSOs) with the most members, and such other
stakeholders as the Secretary considers appropriate. The VA is
encouraged to go beyond the minimum requirement and continue to
work will all the VSOs they have previously partnered with to
ensure diverse opinions to inform the VA during planning and
implementation. The VA is also encouraged to continue hosting
in person meetings with the VSOs. The effective date of the
bill would be the later of either 540 days after the date of
enactment or 30 days after the Secretary's positive
certification. Finally, the Secretary would be required to
submit periodic reports to Congress for 10 years following
implementation.
The bill also contains specific reporting requirements on
the VA to the Congressional Committees of jurisdiction to
ensure proper oversight can be conducted and evaluations can be
conducted on how the changes in law are affecting the current
appeals backlog.
Background and Need for Legislation
Under VA's disability compensation procedures, a veteran
initiates a claim by filing an application for benefits with
VA. The claim describes the current disabilities or symptoms of
disabilities that the veteran believes were caused, or
aggravated, by his or her military service. Filing a claim
triggers VA's ``duty to assist'' and VA is required to help the
veteran develop evidence (i.e. obtaining service treatment
records, private medical records, military discharge documents,
etc. . . .) to support the claim. VA may also schedule a
medical examination for the veteran. After reviewing the
evidence, VA issues a ``rating decision,'' which either grants
or denies the claimed disabilities. If the application for
benefits is granted, the rating decision assigns an evaluation
of disability level of 0% to 100%, by 10% increments (i.e., 0%,
10%, 20% . . .) based on criteria set forth in federal
regulations; and, establishes an effective date, which is
usually the date that the claim was submitted.
If a veteran disagrees with VA's rating decision, he or she
may file a notice of disagreement (NOD) with the regional
office (RO). The RO will then review the rating decision and
either revise or uphold the decision. The RO will also issue a
statement of the case (SOC), which explains the new decision,
provides a list of the evidence reviewed, and attaches a list
of the laws and regulations applicable to the decision.
A veteran who is dissatisfied with the SOC may file a
substantive appeal, or VA Form 9, within 60 days from the
issuance of the SOC. If a veteran chooses to file a substantive
appeal, the RO subsequently certifies the claim and then send
it to the Board of Veterans' Appeals (Board) for a de novo
review.\4\ If the veteran disagrees with the Board decision,
the veteran can file a Notice of Appeal (NOA) with the Court of
Appeals for Veterans Claims (CAVC). If the veteran does not
appeal to the CAVC, the Board decision becomes final.
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\4\A de novo review is a fresh look at the case.
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Unfortunately, VA's current appeals process is broken. In
the last few years, the quantity of undecided appeals at VA has
risen significantly over the past few years. In January 2015,
there were approximately 375,000 pending appeals at VA. This
number increased to approximately 470,000 as of March 31,
2017--a 20% increase in little more than 2 years.
Furthermore, veterans currently wait an average three years
for their appeal to be resolved at the RO level. Veterans who
file an appeal with the Board wait an average five years for a
final decision, inclusive of the time at both VBA and BVA. Even
worse, VA projects that, if the current appeals process is not
changed, claimants will wait an average ten years for a final
appeals decision by the end of 2027.\5\
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\5\Gibson, Sloan P., Deputy Secretary, U.S. Department of Veterans
Affairs, Statement to the House of Representatives Committee on
Veterans' Affairs, Subcommittee on Disability Assistance and Memorial
Affairs Hearing on June 24, 2015.
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To help ensure that veterans receive timely appeals
decisions in the future, VA negotiated with VSOs and other
veterans advocates to craft a proposal that would streamline
VA's appeals process while protecting veterans' due process
rights. The resulting appeals reform proposal was incorporated
into H.R. 2288. The new appeals procedures created by this bill
would reduce VA's appeals workload and help ensure that the
process is both timely and fair.
Hearings
There were no Subcommittee hearings on H.R. 2288.
On May 2, 2017, the Committee on Veterans' Affairs
conducted a legislative hearing on draft legislation entitled
the ``Veterans Appeals Improvement and Modernization Act.''
Such draft legislation was revised and introduced as H.R. 2288.
The following witnesses testified:
Mr. David S. Spickler, Acting Vice Chairman,
Executive in Charge, Board of Veterans' Appeals, U.S.
Department of Veterans Affairs, accompanied by Mr.
David R. McLenachen, Director, Appeals Management
Office, Veterans Benefits Administration, U. S.
Department of Veterans Affairs; Mr. Louis J. Celli,
Jr., Director, National Veterans Affairs and
Rehabilitation Division, The American Legion; Mr. Jim
Marszalek, National Service Director, Disabled Veterans
of America; and, Mr. Ryan M. Gallucci, Director,
National Veterans Service, Veterans of Foreign Wars of
the United States.
Statements for the record were submitted by:
The Military Officers Association of America, the
National Association of State Directors of Veterans
Affairs, the National Organization of Veterans'
Advocates, the National Veterans Legal Services
Program, the Paralyzed Veterans of America, the Vietnam
Veterans of America, and Military-Veterans Advocacy
Inc.
Subcommittee Consideration
H.R. 2288 was not considered before the Subcommittee.
Committee Consideration
On May 17, 2017, the full Committee met in an open markup
session, a quorum being present, and ordered H.R. 2288 reported
favorably to the House of Representatives.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, there were no recorded votes
taken on amendments or in connection with ordering H.R. 2288
reported to the House. A motion by Ranking Member Timothy J.
Walz of Minnesota to report H.R. 2288 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 to provide the Department of Veterans
Affairs the authority to change its current appeals process.
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. 2288 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.
2288 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. 2288 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 19, 2017.
Hon. Phil Roe, M.D.,
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. 2288, the Veterans
Appeals Improvement and Modernization Act of 2017.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Keith Hall.
Enclosure.
H.R. 2288--Veterans Appeals Improvement and Modernization Act of 2017
Summary: H.R. 2288 would modify the appeals process for
benefit claims at the Department of Veterans Affairs (VA) and
would require several reports from VA and the Government
Accountability Office (GAO). CBO estimates that implementing
H.R. 2288 would cost about $2 million over the 2017-2022
period; such spending would be subject to the availability of
appropriated funds.
Enacting the bill would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting H.R. 2288 would not increase
net direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
H.R. 2288 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.
Estimated cost to the Federal Government: The estimated
budgetary effect of H.R. 2288 is shown in the following table.
The costs of this legislation fall within budget function 700
(veterans benefits and services).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
----------------------------------------------------------------------
2017 2018 2019 2020 2021 2022 2017-2022
----------------------------------------------------------------------------------------------------------------
INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level............ 0 1 * * * * 2
Estimated Outlays........................ 0 1 * * * * 2
----------------------------------------------------------------------------------------------------------------
Note: Annual amounts do not sum to total because of rounding; * = less than $500,000.
Basis of estimate: For this estimate, CBO assumes that H.R.
2288 will be enacted near the beginning of fiscal year 2018,
that sufficient funds will be available each year, and that
outlays will follow historical spending patterns for the
affected programs.
Appeals reform
Section 2 would direct VA to implement a new process to
handle appeals of claims for veterans' benefits. As described
below, the current system allows for repeated revisions and
resubmissions of claims while maintaining an effective date for
benefits based upon the original filing date of the claim. As a
result, VA reports that under current law final decisions on
appeals take an average of three years, with some appeals
taking more than six years. The current backlog for appeals
exceeds 470,000 claims and is growing.
The proposed changes are intended to significantly
streamline the appeal process, which would allow appeals to be
finalized in a shorter period of time and require the efforts
of fewer employees. VA reports that no additional personnel
would be required for training, modifications to information
technology, or outreach. VA also expects that the efficiencies
of the new system would allow the agency to continue processing
legacy appeals under the current system, very gradually
reducing the existing backlog, without the need for additional
employees. (Reducing the backlog in a more expedited manner
would require more employees and would have a substantial
cost.) Based on an analysis of information from VA and our
understanding of the appeals process, CBO expects that VA could
implement that change without an increase in workload.
Therefore, CBO estimates that implementing section 2 would have
no significant cost over the 2017-2022 period.
Comprehensive plan
Section 3 would require VA to create a comprehensive plan
to implement the new appeals process. That plan would include
information about the existing process, including timeliness
and the number of appeals, and would discuss how that
information would differ under the new process. VA would be
required to evaluate the potential costs for all facets of the
new appeals process as well as to provide quarterly reports on
VA's implementation of that process. The bill also would
require GAO to conduct an assessment of VA's comprehensive
plan. CBO estimates that implementing this provision would cost
about $2 million to prepare the reports over the 2017-2022
period.
Pilot program on fully developed appeals
Section 4 would grant VA the authority to implement a pilot
program for some appeals until the new appeals process could be
implemented. VA indicates that it would not use this authority;
therefore, CBO estimates that implementing section 4 would have
no budgetary effects.
VA appeals data
Section 5 would require VA to publish data monthly about
the new appeals process on their website. CBO estimates that
implementing section 5 would cost less than $500,000 over the
2017-2022 period.
Pay-As-You-Go considerations: None.
Increase in long-term direct spending and deficits: CBO
estimates that enacting H.R. 2288 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
Intergovernmental and private-sector impact: H.R. 2288
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Estimate prepared by: Federal costs: Dwayne M. Wright;
Impact on state, local, and tribal governments: Leo Lex; impact
on the private sector: Paige Piper/Bach.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 2288 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.
2288.
Constitutional Authority Statement
Pursuant to Article I, section 8 of the United States
Constitution, H.R. 2288 is authorized by Congress' power to
``provide for the common Defense and general Welfare of the
United States.''
Applicability to Legislative Branch
The Committee finds that H.R. 2288 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.
Statement on Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 2288 establishes or reauthorizes a program of the
Federal Government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
Disclosure of Directed Rulemaking
Pursuant to section 3(i) of H. Res. 5, 115th Cong. (2017),
the Committee estimates that H.R. 2288 contains no directed
rule making that would require the Secretary to prescribe
regulations.
Section-by-Section Analysis of the Legislation
Sec. 1. Short title
Section 1 would establish the short title of the Act.
Sec. 2. Reform of rights and processes relating to appeals of decisions
regarding claims for benefits under laws administered by
Secretary of Veterans Affairs
Section 2 would:
(a) Define ``Agency of Jurisdiction (AOJ),'' ``relevant
evidence,'' and ``supplemental claim.''
(b) Amend section 5103(a) to require the Secretary to
provide notice of required information and evidence to
claimants to submit a supplemental claim.
(c) Specify that VA would not be required to readjudicate a
disallowed claim unless a veteran submits new and relevant
evidence.
(d) Eliminate VA's duty to assist after the AOJ issues
notice of the decision with respect to a claim or supplemental
claim. However, clarifies that if a duty to assist error is
discovered during the higher-level or Board review, unless the
claim is granted in full, the claim shall be returned for
correction of such error and readjudication.
(e) Require that VA decision letters include certain
information.
(f) Establish that any finding favorable to the claimant
shall be binding on all subsequent adjudicators, unless clear
and convincing evidence rebuts such favorable finding.
(g) Require VA to grant a claimant's written request for a
review by a higher-level adjudicator within the same office
within the RO or a different RO. Clarify that the Secretary may
not deny a request for review by an adjudicator at a different
RO without good cause. Require that VA notify a claimant if the
Department did not consider submitted evidence when deciding
the claimant's appeal and describe the claimant's option to
have such evidence considered by the Department. Establish that
the review of a decision by a higher-level adjudicator shall be
de novo.
(h) Establish that the claimant may file a request for a
higher-level review, a supplemental claim, or a notice of
disagreement within one year of a decision. However, a claimant
may not take another action until such appeal is either
adjudicated or withdrawn. Clarify that the claimant may take
successive actions with respect to a claim. Clarify that the
claimant may take different actions with respect to different
claims. Establish that VA may allow claimants to withdraw a
pending appeal before it is adjudicated and the claimant would
then be able to take a different action. Clarify that in any
case in which more than one year has passed in which the AOJ
has issued a decision denying a claim, the claimant may file a
supplemental claim. Clarify that nothing in this Act limits the
claimant's option to request a revision of a decision based on
Clear and Unmistakable Error.
(i) Establish that VA would be required to readjudicate the
claim if new and relevant evidence is presented or secured with
respect to a supplemental claim.
(j) Authorize the Board to remand a claim to the AOJ to
obtain an advisory medical opinion from an independent medical
expert if the Board finds that the AOJ should have exercised
its discretion to obtain such an opinion. Require that the
Board's remand instructions include questions to be posed to
such independent medical expert.
(k) Require the AOJ to provide expeditious treatment of any
claim that is remanded by a higher-level adjudicator or the
Board.
(l) Establish the effective date of an award based on an
initial claim or a supplemental claim is fixed in accordance
with the facts found, but shall not be earlier than the date of
receipt of application. Clarify that if a claimant continuously
pursues a claim by filing an appeal within one year of a
decision issued by the AOJ, Board, or the Court of Appeals for
Veterans Claims, the application date shall be considered the
date the claimant filed the initial claim.
(m) Make a technical change.
(n) Allow recognized agents or attorneys to charge a fee
for services after the claimant is provided with notice of the
AOJ's initial decision.
(o) Make a technical change.
(p) Make a technical change.
(q) Establish that except in the case of simultaneously
contested claims, a notice of disagreement (NOD) shall be filed
within one year of the date the AOJ mailed the notice of the
initial decision to the veteran. Clarify that the Board shall
accept a NOD as timely filed if it is postmarked before the
expiration of the one-year period following a decision of the
AOJ. Clarify that the Board will decide any question as to
timeliness or adequacy of the NOD. Establish that a NOD shall
be in writing and include specific information. Clarify that a
claimant may be represented by only one recognized
organization, attorney, or agent at any one time. Authorize VA
to develop a policy to permit a claimant to modify the
information in the notice of disagreement after the veteran
files such notice of disagreement. Establish that the Board may
dismiss any appeal that fails to identify the specific
determination with which the claimant disagrees. Clarify that
if a veteran does not file a notice of disagreement within the
prescribed period, the AOJ's decision becomes final.
(r) Establish that the substance of the NOD shall be
communicated to other party or parties in interest and allows
such party of parties 30 days for filing a brief or argument in
response. Specify that such notice shall be forwarded to the
last known of record of the parties concerned and such action
shall constitute sufficient evidence of notice.
(s) Make a clerical amendment.
(t) Require the Board to maintain at least two separate
dockets. However, if the Board maintains more than two separate
dockets, the Board must provide notice, including a
justification for maintaining more than two dockets, to
Committees on Veterans' Affairs of the House of Representatives
and the Senate. Establish that the Board may assign such cases
as the Board considers appropriate to each docket. Establish
that the Board will decide each case in regular order according
to its respective place on the docket. However, under certain
circumstances, a case may be advanced for earlier consideration
and determination. Clarify that a veteran requests a hearing,
the Board will hold such hearing at its principal location or
via videoconferencing, as requested by the appellant. Authorize
the Board to screen cases for purposes of determining the
adequacy of the record. Establish that VA may allow a claimant
to move the case from one docket to another docket, however VA
would not be required to do so. Require VA to submit a report
describing the docket in which no hearing is requested but the
appellant submits new evidence to the Committees on Veterans'
Affairs of the House of Representatives and the Senate.
(u) Repeal the Board's authority to request an independent
medical opinion.
(v) Establish that the Board may review decisions on the
grounds of clear and unmistakable error (CUE) without referral
to any adjudicative or hearing official.
(w) Establish that in the docket for cases in which the
veteran does not request a hearing before the Board, the notice
of disagreement and the evidentiary record shall be limited to
the evidence of record at the time of the decision of the AOJ,
unless the claimant requested to submit evidence when filing
the NOD. Establish that for cases in which the veteran requests
a hearing, the evidentiary record before the Board shall be
limited to the evidence of record at the time of the initial
decision, except the Board shall consider evidence submitted by
the appellant at the Board hearing and/or within 90 days
following the Board hearing. Establish that the Board shall
provide written notice to the appellant if the Board does not
review evidence that the veteran did not submit timely; such
written notice must include an explanation of options that may
be available for having the evidence considered by VA.
(x) Establish that the effective date is the later of 540
days after the date of enactment of this act; or 30 days after
the Secretary submits to the Committees on Veterans' Affairs of
the Senate and the House of Representatives a certification
that the Secretary confirms, without delegation, that VA has
the resources, personnel, office space, procedures, and
information technology needed to carry out this Act and to
timely address both legacy appeals and appeals processed under
the modernized appeals system. Such certification shall include
a description of the collaboration with the three largest
veterans service organizations and any other stakeholders the
Secretary deems appropriate in making such certification.
Authorize VA to allow a certain claimants who have an appeal
pending before the effective date of this Act to opt-in to the
modernized appeals system. Authorize VA to phase-in
implementation of the modernized appeals system. Require VA to
publish in the Federal Register the date on which the
modernized appeals system goes into effect.
Sec. 3. Comprehensive plan and reports for processing of legacy appeals
and implementing modernized appeals system
Section 3 would:
(a) Not later than 90 days after the date of enactment of
this Act, require VA to submit to the Committees on Veterans'
Affairs of the House of Representatives and the Senate, and the
Comptroller General of the United States, a comprehensive plan
for resolving pending legacy appeals; implementing the
modernized appeals system; and, timely processing of appeals
under the modernized appeals system.
(b) Describe the elements of such report.
(c) Require the Comptroller General of the United States to
assess such plan and submit written findings and
recommendations, as appropriate, to the Committees on Veterans'
Affairs in the House of Representatives and the Senate.
(d) Require VA to submit reports on a quarterly basis
during the period beginning 90 days after the date on which the
Secretary submits the comprehensive plan required under Section
(3)(a), and on a semi-annual basis during the ten-year period
following the date of implementation of this Act to the
Committees on Veterans' Affairs of the House of Representatives
and the Senate and to the Comptroller General.
Sec. 4. Programs to test assumptions relied on in development of
comprehensive plan for processing of legacy appeals and
supporting modernized appeals system
Section 4 would:
(a) Authorize VA to carry out pilot programs to test the
modernized appeals system. Require VA to notify the Committees
on Veterans' Affairs in the House of Representatives and the
Senate if VA conducts such pilot program.
(b)(1) If VA chooses to carry out a pilot program,
authorize VA to carry out a pilot program to provide the option
of an alternative appeals process that would more quickly
resolve appeals.
(b)(2) Authorize VA to carry out a pilot program that would
allow a claimant to elect to file a fully developed appeal
(FDA). Under such program, the claimant would be required to
elect to file a FDA at the time the claimant files the NOD. At
the time the claimant elects to file a FDA, the claimant would
submit all evidence that the claimant believes is needed for
the appeal as of the date of filing, and a statement of the
argument in support of the claim, if any. VA must assess
whether the FDA appeal satisfies the requirements for an appeal
under this section and notify the claimant of the results of
such assessment. The claimant may elect to revert to the
standard appeals process at any time, but such reversion would
be final. Furthermore, a claimant who is determined to be
ineligible for the pilot program would revert to the standard
appeals process without any penalty. During the period in which
the pilot program is carried out, VA would be required to
provide information to the claimant notice about the pilot
program, including the advantages and disadvantages of such
program, how to elect to participate in the pilot program, the
limitation on the use of new evidence and development of
information, and the ability of the claimant to seek advice
from VSOs, attorneys, and claims agents. Finally, this Section
would require VA to collaborate with and give weight to the
advice of the three VSOs with the most members to stand up an
online tutorial explaining the advantages and disadvantages of
the pilot program.
(b)(3) Transfer jurisdiction of the FDA directly to the
Board. VA would not provide the claimant with a statement of
the case or require the claimant to file a substantive appeal.
Further, the bill would require the Board to: (1) maintain the
FDA on a separate docket; (2) decide FDAs in the order
received; (3) decide not more than one FDA for each four
traditional appeals decided, though this ratio may be adjusted
for fairness purposes beginning one year after the pilot
program begins; and, (4) decide, to the extent practicable,
each FDA within one year of a claimant's filing the NOD. The
claimant may not submit any new evidence related to a FDA,
unless the claimant reverts to the standard appeals process. If
a claimant does submit or identify new evidence, such
submission or identification would be deemed to be an election
to make a reversion to the standard appeals process.
If the Board determines that a FDA requires additional
evidence, H.R. 2288 provides the Board with the authority to
develop such evidence without remand to the AOJ. The Board
would consider any new evidence developed by the Board in the
first instance. Further, the Board must provide claimant and
the representative of record, if any, with a copy of such newly
developed evidence. Ninety days after the claimant received
such newly developed evidence, the claimant may provide the
Board with additional evidence, without requiring the claimant
to make a reversion to the standard appeals process. The Board
would be required to establish an office to develop evidence
needed to decide a FDA. The AOJ would transfer employees who
were responsible for processing claims remanded by the Board to
positions within the office of the Board in a number the
Secretary determines sufficient. The Board would be prohibited
from providing hearings for FDAs.
(b)(4) Establish that the Secretary shall carry out the
pilot program during such period as the Secretary considers
appropriate. This Section would apply only to FDAs that are
filed during such period.
(b)(5) Define the terms ``claimant,'' ``compensation,''
``fully developed appeal,'' and ``standard appeal.''
Sec. 5. Periodic publication of metrics relating to processing of
appeals by Department of Veterans Affairs
Section 5 would require, on the first business day of the
month, the Secretary to publish on certain information on VA's
website regarding the processing of legacy appeals and appeals
in the modernized appeals system
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 (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
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 (existing law
proposed to be omitted is enclosed in black brackets, 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 I--GENERAL PROVISIONS
* * * * * * *
CHAPTER 1--GENERAL
Sec. 101. Definitions
For the purposes of this title--
(1) The terms ``Secretary'' and ``Department'' mean the
Secretary of Veterans Affairs and the Department of Veterans
Affairs, respectively.
(2) The term ``veteran'' means a person who served in the
active military, naval, or air service, and who was discharged
or released therefrom under conditions other than dishonorable.
(3) The term ``surviving spouse'' means (except for purposes
of chapter 19 of this title) a person of the opposite sex who
was the spouse of a veteran at the time of the veteran's death,
and who lived with the veteran continuously from the date of
marriage to the date of the veteran's death (except where there
was a separation which was due to the misconduct of, or
procured by, the veteran without the fault of the spouse) and
who has not remarried or (in cases not involving remarriage)
has not since the death of the veteran, and after September 19,
1962, lived with another person and held himself or herself out
openly to the public to be the spouse of such other person.
(4)(A) The term ``child'' means (except for purposes of
chapter 19 of this title (other than with respect to a child
who is an insurable dependent under subparagraph (B) or (C) of
section 1965(10) of such chapter)and section 8502(b) of this
title) a person who is unmarried and--
(i) who is under the age of eighteen years;
(ii) who, before attaining the age of eighteen years,
became permanently incapable of self-support; or
(iii) who, after attaining the age of eighteen years
and until completion of education or training (but not
after attaining the age of twenty-three years), is
pursuing a course of instruction at an approved
educational institution;
and who is a legitimate child, a legally adopted child, a
stepchild who is a member of a veteran's household or was a
member at the time of the veteran's death, or an illegitimate
child but, as to the alleged father, only if acknowledged in
writing signed by him, or if he has been judicially ordered to
contribute to the child's support or has been, before his
death, judicially decreed to be the father of such child, or if
he is otherwise shown by evidence satisfactory to the Secretary
to be the father of such child. A person shall be deemed, as of
the date of death of a veteran, to be the legally adopted child
of such veteran if such person was at the time of the veteran's
death living in the veteran's household and was legally adopted
by the veteran's surviving spouse before August 26, 1961, or
within two years after the veteran's death; however, this
sentence shall not apply if at the time of the veteran's death,
such person was receiving regular contributions toward the
person's support from some individual other than the veteran or
the veteran's spouse, or from any public or private welfare
organization which furnishes services or assistance for
children. A person with respect to whom an interlocutory decree
of adoption has been issued by an appropriate adoption
authority shall be recognized thereafter as a legally adopted
child, unless and until that decree is rescinded, if the child
remains in the custody of the adopting parent or parents during
the interlocutory period. A person who has been placed for
adoption under an agreement entered into by the adopting parent
or parents with any agency authorized under law to so act shall
be recognized thereafter as a legally adopted child, unless and
until such agreement is terminated, if the child remains in the
custody of the adopting parent or parents during the period of
placement for adoption under such agreement. A person described
in clause (ii) of the first sentence of this subparagraph who
was a member of a veteran's household at the time the person
became 18 years of age and who is adopted by the veteran shall
be recognized as a legally adopted child of the veteran
regardless of the age of such person at the time of adoption.
(B) For the purposes of subparagraph (A) of this paragraph,
in the case of an adoption under the laws of any jurisdiction
other than a State (as defined in section 101(20) of this title
and including the Commonwealth of the Northern Mariana
Islands)--
(i) a person residing outside any of the States shall
not be considered to be a legally adopted child of a
veteran during the lifetime of such veteran (including
for purposes of this subparagraph a Commonwealth Army
veteran or new Philippine Scout, as defined in section
3566 of this title) unless such person--
(I) was less than eighteen years of age at
the time of adoption;
(II) is receiving one-half or more of such
person's annual support from such veteran;
(III) is not in the custody of such person's
natural parent, unless such natural parent is
such veteran's spouse; and
(IV) is residing with such veteran (or in the
case of divorce following adoption, with the
divorced spouse who is also an adoptive or
natural parent) except for periods during which
such person is residing apart from such veteran
(or such divorced spouse) for purposes of full-
time attendance at an educational institution
or during which such person or such veteran (or
such divorced spouse) is confined in a
hospital, nursing home, other health-care
facility, or other institution; and
(ii) a person shall not be considered to have been a
legally adopted child of a veteran as of the date of
such veteran's death and thereafter unless--
(I) at any time within the one-year period
immediately preceding such veteran's death,
such veteran was entitled to and was receiving
a dependent's allowance or similar monetary
benefit under this title for such person; or
(II) for a period of at least one year prior
to such veteran's death, such person met the
requirements of clause (i) of this
subparagraph.
(5) The term ``parent'' means (except for purposes of chapter
19 of this title) a father, a mother, a father through
adoption, a mother through adoption, or an individual who for a
period of not less than one year stood in the relationship of a
parent to a veteran at any time before the veteran's entry into
active military, naval, or air service or if two persons stood
in the relationship of a father or a mother for one year or
more, the person who last stood in the relationship of father
or mother before the veteran's last entry into active military,
naval, or air service.
(6) The term ``Spanish-American War'' (A) means the period
beginning on April 21, 1898, and ending on July 4, 1902, (B)
includes the Philippine Insurrection and the Boxer Rebellion,
and (C) in the case of a veteran who served with the United
States military forces engaged in hostilities in the Moro
Province, means the period beginning on April 21, 1898, and
ending on July 15, 1903.
(7) The term ``World War I'' (A) means the period beginning
on April 6, 1917, and ending on November 11, 1918, and (B) in
the case of a veteran who served with the United States
military forces in Russia, means the period beginning on April
6, 1917, and ending on April 1, 1920.
(8) The term ``World War II'' means (except for purposes of
chapters 31 and 37 of this title) the period beginning on
December 7, 1941, and ending on December 31, 1946.
(9) The term ``Korean conflict'' means the period beginning
on June 27, 1950, and ending on January 31, 1955.
(10) The term ``Armed Forces'' means the United States Army,
Navy, Marine Corps, Air Force, and Coast Guard, including the
reserve components thereof.
(11) The term ``period of war'' means the Spanish-American
War, the Mexican border period, World War I, World War II, the
Korean conflict, the Vietnam era, the Persian Gulf War, and the
period beginning on the date of any future declaration of war
by the Congress and ending on the date prescribed by
Presidential proclamation or concurrent resolution of the
Congress.
(12) The term ``veteran of any war'' means any veteran who
served in the active military, naval, or air service during a
period of war.
(13) The term ``compensation'' means a monthly payment made
by the Secretary to a veteran because of service-connected
disability, or to a surviving spouse, child, or parent of a
veteran because of the service-connected death of the veteran
occurring before January 1, 1957.
(14) The term ``dependency and indemnity compensation'' means
a monthly payment made by the Secretary to a surviving spouse,
child, or parent (A) because of a service-connected death
occurring after December 31, 1956, or (B) pursuant to the
election of a surviving spouse, child, or parent, in the case
of such a death occurring before January 1, 1957.
(15) The term ``pension'' means a monthly or other periodic
payment made by the Secretary to a veteran because of service,
age, or non-service-connected disability, or to a surviving
spouse or child of a veteran because of the non-service-
connected death of the veteran.
(16) The term ``service-connected'' means, with respect to
disability or death, that such disability was incurred or
aggravated, or that the death resulted from a disability
incurred or aggravated, in line of duty in the active military,
naval, or air service.
(17) The term ``non-service-connected'' means, with respect
to disability or death, that such disability was not incurred
or aggravated, or that the death did not result from a
disability incurred or aggravated, in line of duty in the
active military, naval, or air service.
(18) The term ``discharge or release'' includes (A)
retirement from the active military, naval, or air service, and
(B) the satisfactory completion of the period of active
military, naval, or air service for which a person was
obligated at the time of entry into such service in the case of
a person who, due to enlistment or reenlistment, was not
awarded a discharge or release from such period of service at
the time of such completion thereof and who, at such time,
would otherwise have been eligible for the award of a discharge
or release under conditions other than dishonorable.
(19) The term ``State home'' means a home established by a
State (other than a possession) for veterans disabled by age,
disease, or otherwise who by reason of such disability are
incapable of earning a living. Such term also includes such a
home which furnishes nursing home care for veterans.
(20) The term ``State'' means each of the several States,
Territories, and possessions of the United States, the District
of Columbia, and the Commonwealth of Puerto Rico. For the
purpose of section 2303 and chapters 34 and 35 of this title,
such term also includes the Canal Zone.
(21) The term ``active duty'' means--
(A) full-time duty in the Armed Forces, other than
active duty for training;
(B) full-time duty (other than for training purposes)
as a commissioned officer of the Regular or Reserve
Corps of the Public Health Service (i) on or after July
29, 1945, or (ii) before that date under circumstances
affording entitlement to ``full military benefits'' or
(iii) at any time, for the purposes of chapter 13 of
this title;
(C) full-time duty as a commissioned officer of the
National Oceanic and Atmospheric Administration or its
predecessor organization the Coast and Geodetic Survey
(i) on or after July 29, 1945, or (ii) before that date
(I) while on transfer to one of the Armed Forces, or
(II) while, in time of war or national emergency
declared by the President, assigned to duty on a
project for one of the Armed Forces in an area
determined by the Secretary of Defense to be of
immediate military hazard, or (III) in the Philippine
Islands on December 7, 1941, and continuously in such
islands thereafter, or (iii) at any time, for the
purposes of chapter 13 of this title;
(D) service as a cadet at the United States Military,
Air Force, or Coast Guard Academy, or as a midshipman
at the United States Naval Academy; and
(E) authorized travel to or from such duty or
service.
(22) The term ``active duty for training'' means--
(A) full-time duty in the Armed Forces performed by
Reserves for training purposes;
(B) full-time duty for training purposes performed as
a commissioned officer of the Reserve Corps of the
Public Health Service (i) on or after July 29, 1945, or
(ii) before that date under circumstances affording
entitlement to ``full military benefits'', or (iii) at
any time, for the purposes of chapter 13 of this title;
(C) in the case of members of the Army National Guard
or Air National Guard of any State, full-time duty
under section 316, 502, 503, 504, or 505 of title 32,
or the prior corresponding provisions of law;
(D) duty performed by a member of a Senior Reserve
Officers' Training Corps program when ordered to such
duty for the purpose of training or a practice cruise
under chapter 103 of title 10 for a period of not less
than four weeks and which must be completed by the
member before the member is commissioned; and
(E) authorized travel to or from such duty.
The term does not include duty performed as a temporary member
of the Coast Guard Reserve.
(23) The term ``inactive duty training'' means--
(A) duty (other than full-time duty) prescribed for
Reserves (including commissioned officers of the
Reserve Corps of the Public Health Service) by the
Secretary concerned under section 206 of title 37 or
any other provision of law;
(B) special additional duties authorized for Reserves
(including commissioned officers of the Reserve Corps
of the Public Health Service) by an authority
designated by the Secretary concerned and performed by
them on a voluntary basis in connection with the
prescribed training or maintenance activities of the
units to which they are assigned; and
(C) training (other than active duty for training) by
a member of, or applicant for membership (as defined in
section 8140(g) of title 5) in, the Senior Reserve
Officers' Training Corps prescribed under chapter 103
of title 10.
In the case of a member of the Army National Guard or Air
National Guard of any State, such term means duty (other than
full-time duty) under sections 316, 502, 503, 504, or 505 of
title 32, or the prior corresponding provisions of law. Such
term does not include (i) work or study performed in connection
with correspondence courses, (ii) attendance at an educational
institution in an inactive status, or (iii) duty performed as a
temporary member of the Coast Guard Reserve.
(24) The term ``active military, naval, or air service''
includes--
(A) active duty;
(B) any period of active duty for training during
which the individual concerned was disabled or died
from a disease or injury incurred or aggravated in line
of duty; and
(C) any period of inactive duty training during which
the individual concerned was disabled or died--
(i) from an injury incurred or aggravated in
line of duty; or
(ii) from an acute myocardial infarction, a
cardiac arrest, or a cerebrovascular accident
occurring during such training.
(25) The term ``Secretary concerned'' means--
(A) the Secretary of the Army, with respect to
matters concerning the Army;
(B) the Secretary of the Navy, with respect to
matters concerning the Navy or the Marine Corps;
(C) the Secretary of the Air Force, with respect to
matters concerning the Air Force;
(D) the Secretary of Homeland Security, with respect
to matters concerning the Coast Guard;
(E) the Secretary of Health and Human Services, with
respect to matters concerning the Public Health
Service; and
(F) the Secretary of Commerce, with respect to
matters concerning the National Oceanic and Atmospheric
Administration or its predecessor organization the
Coast and Geodetic Survey.
(26) The term ``Reserve'' means a member of a reserve
component of one of the Armed Forces.
(27) The term ``reserve component'' means, with respect to
the Armed Forces--
(A) the Army Reserve;
(B) the Navy Reserve;
(C) the Marine Corps Reserve;
(D) the Air Force Reserve;
(E) the Coast Guard Reserve;
(F) the Army National Guard of the United States; and
(G) the Air National Guard of the United States.
(28) The term ``nursing home care'' means the accommodation
of convalescents or other persons who are not acutely ill and
not in need of hospital care, but who require nursing care and
related medical services, if such nursing care and medical
services are prescribed by, or are performed under the general
direction of, persons duly licensed to provide such care. Such
term includes services furnished in skilled nursing care
facilities, in intermediate care facilities, and in combined
facilities. It does not include domiciliary care.
(29) The term ``Vietnam era'' means the following:
(A) The period beginning on February 28, 1961, and
ending on May 7, 1975, in the case of a veteran who
served in the Republic of Vietnam during that period.
(B) The period beginning on August 5, 1964, and
ending on May 7, 1975, in all other cases.
(30) The term ``Mexican border period'' means the period
beginning on May 9, 1916, and ending on April 5, 1917, in the
case of a veteran who during such period served in Mexico, on
the borders thereof, or in the waters adjacent thereto.
(31) The term ``spouse'' means a person of the opposite sex
who is a wife or husband.
(32) The term ``former prisoner of war'' means a person who,
while serving in the active military, naval or air service, was
forcibly detained or interned in line of duty--
(A) by an enemy government or its agents, or a
hostile force, during a period of war; or
(B) by a foreign government or its agents, or a
hostile force, under circumstances which the Secretary
finds to have been comparable to the circumstances
under which persons have generally been forcibly
detained or interned by enemy governments during
periods of war.
(33) The term ``Persian Gulf War'' means the period beginning
on August 2, 1990, and ending on the date thereafter prescribed
by Presidential proclamation or by law.
(34) The term ``agency of original jurisdiction'' means the
activity which entered the original determination with regard
to a claim for benefits under laws administered by the
Secretary.
(35) The term ``relevant evidence'' means evidence that tends
to prove or disprove a matter in issue.
(36) The term ``supplemental claim'' means any claim for
benefits under laws administered by the Secretary filed by a
claimant who had previously filed a claim for the same or
similar benefits on the same or similar basis.
* * * * * * *
PART IV--GENERAL ADMINISTRATIVE PROVISIONS
* * * * * * *
CHAPTER 51--CLAIMS, EFFECTIVE DATES, AND PAYMENTS
SUBCHAPTER I--CLAIMS
Sec.
5100. Definition of ``claimant''.
* * * * * * *
5104A. Binding nature of favorable findings.
5104B. Higher-level review by the agency of original jurisdiction.
5104C. Options following decision by agency of original jurisdiction.
* * * * * * *
[5108. Reopening disallowed claims.]
5108. Supplemental claims.
SUBCHAPTER I--CLAIMS
* * * * * * *
Sec. 5103. Notice to claimants of required information and evidence
(a) Required Information and Evidence.--(1) [The] Except as
provided in paragraph (3), the Secretary shall provide to the
claimant and the claimant's representative, if any, by the most
effective means available, including electronic communication
or notification in writing, notice of any information, and any
medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As part
of that notice, the Secretary shall indicate which portion of
that information and evidence, if any, is to be provided by the
claimant and which portion, if any, the Secretary, in
accordance with section 5103A of this title and any other
applicable provisions of law, will attempt to obtain on behalf
of the claimant.
(2)(A) The Secretary shall prescribe in regulations
requirements relating to the contents of notice to be provided
under this subsection.
(B) The regulations required by this paragraph--
(i) shall specify different contents for notice based
on whether the claim concerned is an original claim[, a
claim for reopening a prior decision on a claim, or a
claim for an increase in benefits;] or a supplemental
claim;
(ii) shall provide that the contents for such notice
be appropriate to the type of benefits or services
sought under the claim;
(iii) shall specify for each type of claim for
benefits the general information and evidence required
to substantiate the basic elements of such type of
claim; and
(iv) shall specify the time period limitations
required pursuant to subsection (b).
(3) The requirement to provide notice under paragraph (1)
shall not apply with respect to a supplemental claim that is
filed within the timeframe set forth in subparagraphs (B) and
(D) of section 5110(a)(2) of this title.
(b) Time Limitation.--(1) In the case of information or
evidence that the claimant is notified under subsection (a) is
to be provided by the claimant, such information or evidence
must be received by the Secretary within one year from the date
such notice is sent.
(2) This subsection shall not apply to any application or
claim for Government life insurance benefits.
(3) Nothing in paragraph (1) shall be construed to prohibit
the Secretary from making a decision on a claim before the
expiration of the period referred to in that subsection.
(4) Nothing in this section shall require the Secretary to
provide notice for a subsequent claim that is filed while a
previous claim is pending if the notice previously provided for
such pending claim--
(A) provides sufficient notice of the information and
evidence necessary to substantiate such subsequent
claim; and
(B) was sent within one year of the date on which the
subsequent claim was filed.
(5)(A) This section shall not apply to any claim or issue
where the Secretary may award the maximum benefit in accordance
with this title based on the evidence of record.
(B) For purposes of this paragraph, the term ``maximum
benefit'' means the highest evaluation assignable in accordance
with the evidence of record, as long as such evidence is
adequate for rating purposes and sufficient to grant the
earliest possible effective date in accordance with section
5110 of this title.
Sec. 5103A. Duty to assist claimants
(a) Duty To Assist.--(1) The Secretary shall make reasonable
efforts to assist a claimant in obtaining evidence necessary to
substantiate the claimant's claim for a benefit under a law
administered by the Secretary.
(2) The Secretary is not required to provide assistance to a
claimant under this section if no reasonable possibility exists
that such assistance would aid in substantiating the claim.
(3) The Secretary may defer providing assistance under this
section pending the submission by the claimant of essential
information missing from the claimant's application.
(b) Assistance in Obtaining Private Records.--(1) As part of
the assistance provided under subsection (a), the Secretary
shall make reasonable efforts to obtain relevant private
records that the claimant adequately identifies to the
Secretary.
(2)(A) Whenever the Secretary, after making such reasonable
efforts, is unable to obtain all of the relevant records
sought, the Secretary shall notify the claimant that the
Secretary is unable to obtain records with respect to the
claim. Such a notification shall--
(i) identify the records the Secretary is unable to
obtain;
(ii) briefly explain the efforts that the Secretary
made to obtain such records; and
(iii) explain that the Secretary will decide the
claim based on the evidence of record but that this
section does not prohibit the submission of records at
a later date if such submission is otherwise allowed.
(B) The Secretary shall make not less than two requests to a
custodian of a private record in order for an effort to obtain
relevant private records to be treated as reasonable under this
section, unless it is made evident by the first request that a
second request would be futile in obtaining such records.
(3)(A) This section shall not apply if the evidence of record
allows for the Secretary to award the maximum benefit in
accordance with this title based on the evidence of record.
(B) For purposes of this paragraph, the term ``maximum
benefit'' means the highest evaluation assignable in accordance
with the evidence of record, as long as such evidence is
adequate for rating purposes and sufficient to grant the
earliest possible effective date in accordance with section
5110 of this title.
(4) Under regulations prescribed by the Secretary, the
Secretary--
(A) shall encourage claimants to submit relevant
private medical records of the claimant to the
Secretary if such submission does not burden the
claimant; and
(B) in obtaining relevant private records under
paragraph (1), may require the claimant to authorize
the Secretary to obtain such records if such
authorization is required to comply with Federal,
State, or local law.
(c) Obtaining Records for Compensation Claims.--(1) In the
case of a claim for disability compensation, the assistance
provided by the Secretary under this section shall include
obtaining the following records if relevant to the claim:
(A) The claimant's service medical records and, if
the claimant has furnished the Secretary information
sufficient to locate such records, other relevant
records pertaining to the claimant's active military,
naval, or air service that are held or maintained by a
governmental entity.
(B) Records of relevant medical treatment or
examination of the claimant at Department health-care
facilities or at the expense of the Department, if the
claimant furnishes information sufficient to locate
those records.
(C) Any other relevant records held by any Federal
department or agency that the claimant adequately
identifies and authorizes the Secretary to obtain.
(2) Whenever the Secretary attempts to obtain records from a
Federal department or agency under this subsection, the efforts
to obtain those records shall continue until the records are
obtained unless it is reasonably certain that such records do
not exist or that further efforts to obtain those records would
be futile.
(d) Medical Examinations for Compensation Claims.--(1) In the
case of a claim for disability compensation, the assistance
provided by the Secretary under subsection (a) shall include
providing a medical examination or obtaining a medical opinion
when such an examination or opinion is necessary to make a
decision on the claim.
(2) The Secretary shall treat an examination or opinion as
being necessary to make a decision on a claim for purposes of
paragraph (1) if the evidence of record before the Secretary,
taking into consideration all information and lay or medical
evidence (including statements of the claimant)--
(A) contains competent evidence that the claimant has
a current disability, or persistent or recurrent
symptoms of disability; and
(B) indicates that the disability or symptoms may be
associated with the claimant's active military, naval,
or air service; but
(C) does not contain sufficient medical evidence for
the Secretary to make a decision on the claim.
(e) Applicability of Duty To Assist.--(1) The Secretary's
duty to assist under this section shall apply only to a claim,
or supplemental claim, for a benefit under a law administered
by the Secretary until the time that a claimant is provided
notice of the agency of original jurisdiction's decision with
respect to such claim, or supplemental claim, under section
5104 of this title.
(2) The Secretary's duty to assist under this section shall
not apply to higher-level review by the agency of original
jurisdiction, pursuant to section 5104B of this title, or to
review on appeal by the Board of Veterans' Appeals.
(f) Correction of Duty To Assist Errors.--(1) If, during
review of the agency of original jurisdiction decision under
section 5104B of this title, the higher-level adjudicator
identifies or learns of an error on the part of the agency of
original jurisdiction to satisfy its duties under this section,
and that error occurred prior to the agency of original
jurisdiction decision being reviewed, unless the claim can be
granted in full, the higher-level adjudicator shall return the
claim for correction of such error and readjudication.
(2)(A) If the Board of Veterans' Appeals, during review on
appeal of an agency of original jurisdiction decision,
identifies or learns of an error on the part of the agency of
original jurisdiction to satisfy its duties under this section,
and that error occurred prior to the agency of original
jurisdiction decision on appeal, unless the claim can be
granted in full, the Board shall remand the claim to the agency
of original jurisdiction for correction of such error and
readjudication.
(B) Remand for correction of such error may include directing
the agency of original jurisdiction to obtain an advisory
medical opinion under section 5109 of this title.
(3) Nothing in this subsection shall be construed to imply
that the Secretary, during the consideration of a claim, does
not have a duty to correct an error described in paragraph (1)
or (2) that was erroneously not identified during higher-level
review or during review on appeal with respect to the claim.
[(e)] (g) Regulations.--The Secretary shall prescribe
regulations to carry out this section.
[(f)] (h) Rule With Respect to Disallowed Claims.--Nothing in
this section shall be construed to require the Secretary to
[reopen] readjudicate a claim that has been disallowed except
when new and [material] relevant evidence is presented or
secured, as described in section 5108 of this title.
[(g)] (i) Other Assistance Not Precluded.--Nothing in this
section shall be construed as precluding the Secretary from
providing such other assistance under subsection (a) to a
claimant in substantiating a claim as the Secretary considers
appropriate.
Sec. 5104. Decisions and notices of decisions
(a) In the case of a decision by the Secretary under section
511 of this title affecting the provision of benefits to a
claimant, the Secretary shall, on a timely basis, provide to
the claimant (and to the claimant's representative) notice of
such decision. The notice shall include an explanation of the
procedure for obtaining review of the decision.
[(b) In any case where the Secretary denies a benefit sought,
the notice required by subsection (a) shall also include (1) a
statement of the reasons for the decision, and (2) a summary of
the evidence considered by the Secretary.]
(b) Each notice provided under subsection (a) shall also
include all of the following:
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered by the
Secretary.
(3) A summary of the applicable laws and regulations.
(4) Identification of findings favorable to the
claimant.
(5) In the case of a denial of a claim,
identification of elements not satisfied leading to the
denial.
(6) An explanation of how to obtain or access
evidence used in making the decision.
(7) If applicable, identification of the criteria
that must be satisfied to grant service connection or
the next higher level of compensation.
Sec. 5104A. Binding nature of favorable findings
Any finding favorable to the claimant as described in section
5104(b)(4) of this title shall be binding on all subsequent
adjudicators within the Department, unless clear and convincing
evidence is shown to the contrary to rebut such favorable
finding.
Sec. 5104B. Higher-level review by the agency of original jurisdiction
(a) In General.--(1) A claimant may request a review of the
decision of the agency of original jurisdiction by a higher-
level adjudicator within the agency of original jurisdiction.
(2) The Secretary shall approve each request for review under
paragraph (1).
(b) Time and Manner of Request.--(1) A request for higher-
level review by the agency of original jurisdiction shall be--
(A) in writing in such form as the Secretary may
prescribe; and
(B) made within one year of the notice of the agency
of original jurisdiction's decision.
(2) Such request may specifically indicate whether such
review is requested by a higher-level adjudicator at the same
office within the agency of original jurisdiction or by an
adjudicator at a different office of the agency of original
jurisdiction. The Secretary shall not deny such a request for
review by an adjudicator at a different office of the agency of
original jurisdiction without good cause.
(c) Decision.--Notice of a higher-level review decision under
this section shall be provided in writing and shall include a
general statement--
(1) reflecting whether evidence was not considered
pursuant to subsection (d); and
(2) noting the options available to the claimant to
have the evidence described in paragraph (1), if any,
considered by the Department.
(d) Evidentiary Record for Review.--The evidentiary record
before the higher-level adjudicator shall be limited to the
evidence of record in the agency of original jurisdiction
decision being reviewed.
(e) De Novo Review.--A review of the decision of the agency
of original jurisdiction by a higher-level adjudicator within
the agency of original jurisdiction shall be de novo.
Sec. 5104C. Options following decision by agency of original
jurisdiction
(a) Within One Year of Decision.--(1) Subject to paragraph
(2), in any case in which the Secretary renders a decision on a
claim, the claimant may take any of the following actions on or
before the date that is one year after the date on which the
agency of original jurisdiction issues a decision with respect
to that claim:
(A) File a request for higher-level review under
section 5104B of this title.
(B) File a supplemental claim under section 5108 of
this title.
(C) File a notice of disagreement under section 7105
of this title.
(2)(A) Once a claimant takes an action set forth in paragraph
(1), the claimant may not take another action set forth in that
paragraph with respect to such claim until--
(i) the higher-level review, supplemental claim, or
notice of disagreement is adjudicated; or
(ii) the request for higher-level review,
supplemental claim, or notice of disagreement is
withdrawn.
(B) Nothing in this subsection shall prohibit a claimant from
taking any of the actions set forth in paragraph (1) in
succession with respect to a claim.
(C) Nothing in this subsection shall prohibit a claimant from
taking different actions set forth in paragraph (1) with
respect to different claims.
(D) The Secretary may, as the Secretary considers
appropriate, develop and implement a policy for claimants who--
(i) take an action under paragraph (1);
(ii) wish to withdraw the action before the higher-
level review, supplemental claim, or notice of
disagreement is adjudicated; and
(iii) in lieu of such action take a different action
under paragraph (1).
(b) More Than One Year After Decision.--In any case in which
the Secretary renders a decision on a claim and more than one
year has passed since the date on which the agency of original
jurisdiction issues a decision with respect to that claim, the
claimant may file a supplemental claim under section 5108 of
this title.
(c) BVA and CAVC.--Nothing in subsection (a) or (b) may be
construed to limit the options available to a claimant pursuant
to chapters 71 or 72 of this title.
* * * * * * *
[Sec. 5108. Reopening disallowed claims
[If new and material evidence is presented or secured with
respect to a claim which has been disallowed, the Secretary
shall reopen the claim and review the former disposition of the
claim.]
Sec. 5108. Supplemental claims
If new and relevant evidence is presented or secured with
respect to a supplemental claim, the Secretary shall
readjudicate the claim taking into consideration any evidence
added to the record prior to the former disposition of the
claim.
Sec. 5109. Independent medical opinions
(a) When, in the judgment of the Secretary, expert medical
opinion, in addition to that available within the Department,
is warranted by the medical complexity or controversy involved
in a case being considered by the Department, the Secretary may
secure an advisory medical opinion from one or more independent
medical experts who are not employees of the Department.
(b) The Secretary shall make necessary arrangements with
recognized medical schools, universities, or clinics to furnish
such advisory medical opinions. Any such arrangement shall
provide that the actual selection of the expert or experts to
give the advisory opinion in an individual case shall be made
by an appropriate official of such institution.
(c) The Secretary shall furnish a claimant with notice that
an advisory medical opinion has been requested under this
section with respect to the claimant's case and shall furnish
the claimant with a copy of such opinion when it is received by
the Secretary.
(d)(1) The Board of Veterans' Appeals shall remand a claim to
direct the agency of original jurisdiction to obtain an
advisory medical opinion from an independent medical expert
under this section if the Board finds that the Veterans
Benefits Administration should have exercised its discretion to
obtain such an opinion.
(2) The Board's remand instructions shall include the
questions to be posed to the independent medical expert
providing the advisory medical opinion.
* * * * * * *
[Sec. 5109B. Expedited treatment of remanded claims
[The Secretary shall take such actions as may be necessary to
provide for the expeditious treatment by the appropriate
regional office of the Veterans Benefits Administration of any
claim that is remanded to a regional office of the Veterans
Benefits Administration by the Board of Veterans' Appeals.]
Sec. 5109B. Expedited treatment of remanded claims
The Secretary shall take such actions as may be necessary to
provide for the expeditious treatment by the Veterans Benefits
Administration of any claim that is returned by a higher level
adjudicator under section 5104B of this title or remanded by
the Board of Veterans' Appeals.
SUBCHAPTER II--EFFECTIVE DATES
Sec. 5110. Effective dates of awards
[(a) Unless specifically provided otherwise in this chapter,
the effective date of an award based on an original claim, a
claim reopened after final adjudication, or a claim for
increase, of compensation, dependency and indemnity
compensation, or pension, shall be fixed in accordance with the
facts found, but shall not be earlier than the date of receipt
of application therefor.]
(a)(1) Unless specifically provided otherwise in this
chapter, the effective date of an award based on an initial
claim, or a supplemental claim, of compensation, dependency and
indemnity compensation, or pension, shall be fixed in
accordance with the facts found, but shall not be earlier than
the date of receipt of application therefor.
(2) For purposes of determining the effective date of an
award under this section, the date of application shall be
considered the date of the filing of the initial application
for a benefit if the claim is continuously pursued by filing
any of the following, either alone or in succession:
(A) A request for higher-level review under section
5104B of this title on or before the date that is one
year after the date on which the agency of original
jurisdiction issues a decision.
(B) A supplemental claim under section 5108 of this
title on or before the date that is one year after the
date on which the agency of original jurisdiction
issues a decision.
(C) A notice of disagreement on or before the date
that is one year after the date on which the agency of
original jurisdiction issues a decision.
(D) A supplemental claim under section 5108 of this
title on or before the date that is one year after the
date on which the Board of Veterans' Appeals issues a
decision.
(E) A supplemental claim under section 5108 of this
title on or before the date that is one year after the
date on which the Court of Appeals for Veterans Claims
issues a decision.
(3) Except as otherwise provided in this section, for
supplemental claims received more than one year after the date
on which the agency of original jurisdiction issued a decision
or the Board of Veterans' Appeals issued a decision, the
effective date shall be fixed in accordance with the facts
found, but shall not be earlier than the date of receipt of the
supplemental claim.
(b)(1) The effective date of an award of disability
compensation to a veteran shall be the day following the date
of the veteran's discharge or release if application therefor
is received within one year from such date of discharge or
release.
(2)(A) The effective date of an award of disability
compensation to a veteran who submits an application therefor
that sets forth an original claim that is fully-developed (as
determined by the Secretary) as of the date of submittal shall
be fixed in accordance with the facts found, but shall not be
earlier than the date that is one year before the date of
receipt of the application.
(B) For purposes of this paragraph, an original claim is an
initial claim filed by a veteran for disability compensation.
(C) This paragraph shall take effect on the date that is one
year after the date of the enactment of the Honoring America's
Veterans and Caring for Camp Lejeune Families Act of 2012 and
shall not apply with respect to claims filed after the date
that is three years after the date of the enactment of such
Act.
(3) The effective date of an award of increased compensation
shall be the earliest date as of which it is ascertainable that
an increase in disability had occurred, if application is
received within one year from such date.
(4)(A) The effective date of an award of disability pension
to a veteran described in subparagraph (B) of this paragraph
shall be the date of application or the date on which the
veteran became permanently and totally disabled, if the veteran
applies for a retroactive award within one year from such date,
whichever is to the advantage of the veteran.
(B) A veteran referred to in subparagraph (A) of this
paragraph is a veteran who is permanently and totally disabled
and who is prevented by a disability from applying for
disability pension for a period of at least 30 days beginning
on the date on which the veteran became permanently and totally
disabled.
(c) The effective date of an award of disability compensation
by reason of section 1151 of this title shall be the date such
injury or aggravation was suffered if an application therefor
is received within one year from such date.
(d) The effective date of an award of death compensation,
dependency and indemnity compensation, or death pension for
which application is received within one year from the date of
death shall be the first day of the month in which the death
occurred.
(e)(1) Except as provided in paragraph (2) of this
subsection, the effective date of an award of dependency and
indemnity compensation to a child shall be the first day of the
month in which the child's entitlement arose if application
therefor is received within one year from such date.
(2) In the case of a child who is eighteen years of age or
over and who immediately before becoming eighteen years of age
was counted under section 1311(b) of this title in determining
the amount of the dependency and indemnity compensation of a
surviving spouse, the effective date of an award of dependency
and indemnity compensation to such child shall be the date the
child attains the age of eighteen years if application therefor
is received within one year from such date.
(f) An award of additional compensation on account of
dependents based on the establishment of a disability rating in
the percentage evaluation specified by law for the purpose
shall be payable from the effective date of such rating; but
only if proof of dependents is received within one year from
the date of notification of such rating action.
(g) Subject to the provisions of section 5101 of this title,
where compensation, dependency and indemnity compensation, or
pension is awarded or increased pursuant to any Act or
administrative issue, the effective date of such award or
increase shall be fixed in accordance with the facts found but
shall not be earlier than the effective date of the Act or
administrative issue. In no event shall such award or increase
be retroactive for more than one year from the date of
application therefor or the date of administrative
determination of entitlement, whichever is earlier.
(h) Where an award of pension has been deferred or pension
has been awarded at a rate based on anticipated income for a
year and the claimant later establishes that income for that
year was at a rate warranting entitlement or increased
entitlement, the effective date of such entitlement or increase
shall be fixed in accordance with the facts found if
satisfactory evidence is received before the expiration of the
next calendar year.
(i) Whenever any disallowed claim is [reopened] readjudicated
and thereafter allowed on the basis of new and [material]
relevant evidence resulting from the correction of the military
records of the proper service department under section 1552 of
title 10, or the change, correction, or modification of a
discharge or dismissal under section 1553 of title 10, or from
other corrective action by competent authority, the effective
date of commencement of the benefits so awarded shall be the
date on which an application was filed for correction of the
military record or for the change, modification, or correction
of a discharge or dismissal, as the case may be, or the date
such disallowed claim was filed, whichever date is the later,
but in no event shall such award of benefits be retroactive for
more than one year from the date of [reopening] readjudication
of such disallowed claim. This subsection shall not apply to
any application or claim for Government life insurance
benefits.
(j) Where a report or a finding of death of any person in the
active military, naval, or air service has been made by the
Secretary concerned, the effective date of an award of death
compensation, dependency and indemnity compensation, or death
pension, as applicable, shall be the first day of the month
fixed by that Secretary as the month of death in such report or
finding, if application therefor is received within one year
from the date such report or finding has been made; however,
such benefits shall not be payable to any person for any period
for which such person has received, or was entitled to receive,
an allowance, allotment, or service pay of the deceased.
(k) The effective date of the award of benefits to a
surviving spouse or of an award or increase of benefits based
on recognition of a child, upon annulment of a marriage shall
be the date the judicial decree of annulment becomes final if a
claim therefor is filed within one year from the date the
judicial decree of annulment becomes final; in all other cases
the effective date shall be the date the claim is filed.
(l) The effective date of an award of benefits to a surviving
spouse based upon a termination of a remarriage by death or
divorce, or of an award or increase of benefits based on
recognition of a child upon termination of the child's marriage
by death or divorce, shall be the date of death or the date the
judicial decree or divorce becomes final, if an application
therefor is received within one year from such termination.
(n) The effective date of the award of any benefit or any
increase therein by reason of marriage or the birth or adoption
of a child shall be the date of such event if proof of such
event is received by the Secretary within one year from the
date of the marriage, birth, or adoption.
Sec. 5111. Commencement of period of payment
(a)(1) Notwithstanding section 5110 of this title or any
other provision of law and except as provided in paragraph (2)
and subsection (c), payment of monetary benefits based on an
award or an increased award of compensation, dependency and
indemnity compensation, or pension may not be made to an
individual for any period before the first day of the calendar
month following the month in which the award or increased award
became effective as provided under section 5110 of this title
or such other provision of law.
(2)(A) In the case of a veteran who is retired or separated
from the active military, naval, or air service for a
catastrophic disability or disabilities, payment of monetary
benefits based on an award of compensation based on an original
claim shall be made as of the date on which such award becomes
effective as provided under section 5110 of this title or
another applicable provision of law.
(B) For the purposes of this paragraph, the term
``catastrophic disability'', with respect to a veteran, means a
permanent, severely disabling injury, disorder, or disease that
compromises the ability of the veteran to carry out the
activities of daily living to such a degree that the veteran
requires personal or mechanical assistance to leave home or
bed, or requires constant supervision to avoid physical harm to
self or others.
(b)(1) Except as provided in paragraph (2) of this
subsection, during the period between the effective date of an
award or increased award as provided under section 5110 of this
title or other provision of law and the commencement of the
period of payment based on such award as provided under
subsection (a) of this section, an individual entitled to
receive monetary benefits shall be deemed to be in receipt of
such benefits for the purpose of all laws administered by the
Secretary.
(2) If any person who is in receipt of retired or retirement
pay would also be eligible to receive compensation or pension
upon the filing of a waiver of such pay in accordance with
section 5305 of this title, such waiver shall not become
effective until the first day of the month following the month
in which such waiver is filed, and nothing in this section
shall prohibit the receipt of retired or retirement pay for any
period before such effective date.
(c)(1) This section shall not apply to payments made pursuant
to section 5310 of this title.
(2) In the case of a temporary increase in compensation for
hospitalization or treatment where such hospitalization or
treatment commences and terminates within the same calendar
month, the period of payment shall commence on the first day of
such month.
(d) For the purposes of this section, the term ``award or
increased award'' means--
(1) an original [or reopened award] award or award
based on a supplemental claim; or
(2) an award that is increased because of an added
dependent, increase in disability or disability rating,
or reduction in income.
* * * * * * *
CHAPTER 57--RECORDS AND INVESTIGATIONS
SUBCHAPTER I--RECORDS
Sec. 5701. Confidential nature of claims
(a) All files, records, reports, and other papers and
documents pertaining to any claim under any of the laws
administered by the Secretary and the names and addresses of
present or former members of the Armed Forces, and their
dependents, in the possession of the Department shall be
confidential and privileged, and no disclosure thereof shall be
made except as provided in this section.
(b) The Secretary shall make disclosure of such files,
records, reports, and other papers and documents as are
described in subsection (a) of this section as follows:
(1) To a claimant or duly authorized agent or
representative of a claimant as to matters concerning
the claimant alone when, in the judgment of the
Secretary, such disclosure would not be injurious to
the physical or mental health of the claimant and to an
independent medical expert or experts for an advisory
opinion pursuant to section 5109 [or 7109] of this
title.
(2) When required by process of a United States court
to be produced in any suit or proceeding therein
pending.
(3) When required by any department or other agency
of the United States Government.
(4) In all proceedings in the nature of an inquest
into the mental competency of a claimant.
(5) In any suit or other judicial proceeding when in
the judgment of the Secretary such disclosure is deemed
necessary and proper.
(6) In connection with any proceeding for the
collection of an amount owed to the United States by
virtue of a person's participation in any benefit
program administered by the Secretary when in the
judgment of the Secretary such disclosure is deemed
necessary and proper.
(c)(1) The amount of any payment made by the Secretary to any
person receiving benefits under a program administered by the
Secretary shall be made known to any person who applies for
such information.
(2) Any appraisal report or certificate of reasonable value
submitted to or prepared by the Secretary in connection with
any loan guaranteed, insured, or made under chapter 37 of this
title shall be made available to any person who applies for
such report or certificate.
(3) Subject to the approval of the President, the Secretary
may publish at any time and in any manner any or all
information of record pertaining to any claim filed with the
Secretary if the Secretary determines that the public interest
warrants or requires such publication.
(d) The Secretary as a matter of discretion may authorize an
inspection of Department records by duly authorized
representatives of recognized organizations.
(e) Except as otherwise specifically provided in this section
with respect to certain information, the Secretary may release
information, statistics, or reports to individuals or
organizations when in the Secretary's judgment such release
would serve a useful purpose.
(f) The Secretary may, pursuant to regulations the Secretary
shall prescribe, release the name or address, or both, of any
present or former member of the Armed Forces, or a dependent of
a present or former member of the Armed Forces, (1) to any
nonprofit organization if the release is directly connected
with the conduct of programs and the utilization of benefits
under this title, or (2) to any criminal or civil law
enforcement governmental agency or instrumentality charged
under applicable law with the protection of the public health
or safety if a qualified representative of such agency or
instrumentality has made a written request that such name or
address be provided for a purpose authorized by law. Any
organization or member thereof or other person who, knowing
that the use of any name or address released by the Secretary
pursuant to the preceding sentence is limited to the purpose
specified in such sentence, willfully uses such name or address
for a purpose other than those so specified, shall be guilty of
a misdemeanor and be fined not more than $5,000 in the case of
a first offense and not more than $20,000 in the case of any
subsequent offense.
(g)(1) Subject to the provisions of this subsection, and
under regulations which the Secretary shall prescribe, the
Secretary may release the name or address, or both, of any
person who is a present or former member of the Armed Forces,
or who is a dependent of a present or former member of the
Armed Forces, to a consumer reporting agency if the release of
such information is necessary for a purpose described in
paragraph (2) of this subsection.
(2) A release of information under paragraph (1) of this
subsection concerning a person described in such paragraph may
be made for the purpose of--
(A) locating such a person--
(i) who has been administratively determined
to be indebted to the United States by virtue
of the person's participation in a benefits
program administered by the Secretary; or
(ii) if the Secretary has determined under
such regulations that (I) it is necessary to
locate such person in order to conduct a study
pursuant to section 527 of this title or a
study required by any other provision of law,
and (II) all reasonable steps have been taken
to assure that the release of such information
to such reporting agency will not have an
adverse effect on such person; or
(B) Obtaining a consumer report in order to assess
the ability of a person described in subparagraph
(A)(i) of this paragraph to repay the indebtedness of
such person to the United States, but the Secretary may
release the name or address of such person for the
purpose stated in this clause only if the Secretary
determines under such regulations that such person has
failed to respond appropriately to administrative
efforts to collect such indebtedness.
(3) The Secretary may also release to a consumer reporting
agency, for the purposes specified in subparagraph (A) or (B)
of paragraph (2) of this subsection, such other information as
the Secretary determines under such regulations is reasonably
necessary to identify a person described in such paragraph,
except that the Secretary may not release to a consumer
reporting agency any information which indicates any
indebtedness on the part of such person to the United States or
any information which reflects adversely on such person. Before
releasing any information under this paragraph, the Secretary
shall, under such regulations, take reasonable steps to provide
for the protection of the personal privacy of persons about
whom information is proposed to be released under this
paragraph.
(4)(A) If the Secretary determines, under regulations which
the Secretary shall prescribe, that a person described in
paragraph (1) of this subsection has failed to respond
appropriately to reasonable administrative efforts to collect
an indebtedness of such person described in paragraph (2)(A)(i)
of this subsection, the Secretary may release information
concerning the indebtedness, including the name and address of
such person, to a consumer reporting agency for the purpose of
making such information available for inclusion in consumer
reports regarding such person and, if necessary, for the
purpose of locating such person, if--
(i) the Secretary has (I) made reasonable efforts to
notify such person of such person's right to dispute
through prescribed administrative processes the
existence or amount of such indebtedness and of such
person's right to request a waiver of such indebtedness
under section 5302 of this title, (II) afforded such
person a reasonable opportunity to exercise such
rights, and (III) made a determination with respect to
any such dispute or request; and
(ii) thirty calendar days have elapsed after the day
on which the Secretary has made a determination that
reasonable efforts have been made to notify such person
(I) that the Secretary intends to release such
information for such purpose or purposes, and (II)
that, upon the request of such person, the Secretary
shall inform such person of whether such information
has been so released and of the name and address of
each consumer reporting agency to which such
information was released by the Secretary and of the
specific information so released.
(B) After release of any information under subparagraph (A)
of this paragraph concerning the indebtedness of any person,
the Secretary shall promptly notify--
(i) each consumer reporting agency to which such
information has been released by the Secretary; and
(ii) each consumer reporting agency described in
subsection (i)(3)(B)(i) of this section to which such
information has been transmitted by the Secretary
through a consumer reporting agency described in
subsection (i)(3)(B)(ii)(I) of this section,
of any substantial change in the status or amount of such
indebtedness and, upon the request of any such consumer
reporting agency for verification of any or all information so
released, promptly verify or correct, as appropriate, such
information. The Secretary shall also, after the release of
such information, inform such person, upon the request of such
person, of the name and address of each consumer reporting
agency described in clause (i) or (ii) of this subparagraph to
which such information was released or transmitted by the
Secretary and of the specific information so released or
transmitted.
(h)(1) Under regulations which the Secretary shall prescribe,
the Secretary may release the name or address, or both, of any
person who is a present or former member of the Armed Forces,
or who is a dependent of a present or former member of the
Armed Forces (and other information relating to the identity of
such person), to any person in a category of persons described
in such regulations and specified in such regulations as a
category of persons to whom such information may be released,
if the release of such information is necessary for a purpose
described in paragraph (2) of this subsection.
(2) A release of information under paragraph (1) of this
subsection may be made for the purpose of--
(A) determining the creditworthiness, credit
capacity, income, or financial resources of a person
who has (i) applied for any benefit under chapter 37 of
this title, or (ii) submitted an offer to the Secretary
for the purchase of property acquired by the Secretary
under section 3720(a)(5) of this title;
(B) verifying, either before or after the Secretary
has approved a person's application for assistance in
the form of a loan guaranty or loan insurance under
chapter 37 of this title, information submitted by a
lender to the Secretary regarding the creditworthiness,
credit capacity, income, or financial resources of such
person;
(C) offering for sale or other disposition by the
Secretary, pursuant to section 3720 of this title, any
loan or installment sale contract owned or held by the
Secretary; or
(D) providing assistance to any applicant for
benefits under chapter 37 of this title or
administering such benefits if the Secretary promptly
records the fact of such release in appropriate records
pertaining to the person concerning whom such release
was made.
(i)(1) No contract entered into for any of the purposes of
subsection (g) or (h) of this section, and no action taken
pursuant to any such contract or either such subsection, shall
result in the application of section 552a of title 5 to any
consumer reporting agency or any employee of a consumer
reporting agency.
(2) The Secretary shall take reasonable steps to provide for
the protection of the personal privacy of persons about whom
information is disclosed under subsection (g) or (h) of this
section.
(3) For the purposes of this subsection and of subsection (g)
of this section--
(A) The term ``consumer report'' has the meaning
provided such term in subsection (d) of section 603 of
the Fair Credit Reporting Act (15 U.S.C. 1681a(d)).
(B) The term ``consumer reporting agency'' means--
(i) a consumer reporting agency as such term
is defined in subsection (f) of section 603 of
the Fair Credit Reporting Act (15 U.S.C.
1681a(f)), or
(ii) any person who, for monetary fees, dues,
or on a cooperative nonprofit basis, regularly
engages in whole or in part in the practice of
(I) obtaining credit or other information on
consumers for the purpose of furnishing such
information to consumer reporting agencies (as
defined in clause (i) of this paragraph), or
(II) serving as a marketing agent under
arrangements enabling third parties to obtain
such information from such reporting agencies.
(j) Except as provided in subsection (i)(1) of this section,
any disclosure made pursuant to this section shall be made in
accordance with the provisions of section 552a of title 5.
(k)(1)(A) Under regulations that the Secretary shall
prescribe, the Secretary may disclose the name and address of
any individual described in subparagraph (C) to an entity
described in subparagraph (B) in order to facilitate the
determination by such entity whether the individual is, or
after death will be, a suitable organ, tissue, or eye donor
if--
(i) the individual is near death (as determined by
the Secretary) or is deceased; and
(ii) the disclosure is permitted under regulations
promulgated pursuant to section 264 of the Health
Insurance Portability and Accountability Act of 1996
(42 U.S.C. 1320d-2 note).
(B) An entity described in this subparagraph is--
(i) an organ procurement organization, including eye
and tissue banks; or
(ii) an entity that the Secretary has determined--
(I) is substantially similar in function,
professionalism, and reliability to an organ
procurement organization; and
(II) should be treated for purposes of this
subsection in the same manner as an organ
procurement organization.
(C) An individual described in this subparagraph is--
(i) a veteran; or
(ii) a dependent of veteran.
(2) In this subsection, the term ``organ procurement
organization'' has the meaning given the term ``qualified organ
procurement organization'' in section 371(b) of the Public
Health Service Act (42 U.S.C. 273(b)).
(l) Under regulations the Secretary shall prescribe, the
Secretary shall disclose information about a veteran or the
dependent of a veteran to a State controlled substance
monitoring program, including a program approved by the
Secretary of Health and Human Services under section 399O of
the Public Health Service Act (42 U.S.C. 280g-3), to the extent
necessary to prevent misuse and diversion of prescription
medicines.
* * * * * * *
CHAPTER 59--AGENTS AND ATTORNEYS
* * * * * * *
Sec. 5904. Recognition of agents and attorneys generally
(a) Recognition.--(1) Except as provided in paragraph (4),
the Secretary may recognize any individual as an agent or
attorney for the preparation, presentation, and prosecution of
claims under laws administered by the Secretary.
(2) The Secretary shall prescribe in regulations (consistent
with the Model Rules of Professional Conduct of the American
Bar Association) qualifications and standards of conduct for
individuals recognized under this section, including a
requirement that, as a condition of being so recognized, an
individual must--
(A) show that such individual is of good moral
character and in good repute, is qualified to render
claimants valuable service, and is otherwise competent
to assist claimants in presenting claims;
(B) have such level of experience or specialized
training as the Secretary shall specify; and
(C) certify to the Secretary that the individual has
satisfied any qualifications and standards prescribed
by the Secretary under this section.
(3) The Secretary shall prescribe in regulations requirements
that each agent or attorney recognized under this section
provide annually to the Secretary information about any court,
bar, or Federal or State agency to which such agent or attorney
is admitted to practice or otherwise authorized to appear, any
relevant identification number or numbers, and a certification
by such agent or attorney that such agent or attorney is in
good standing in every jurisdiction where the agent or attorney
is admitted to practice or otherwise authorized to appear.
(4) The Secretary may not recognize an individual as an agent
or attorney under paragraph (1) if such individual has been
suspended or disbarred by any court, bar, or Federal or State
agency to which the individual was previously admitted to
practice and has not been subsequently reinstated.
(5) The Secretary may prescribe in regulations reasonable
restrictions on the amount of fees that an agent or attorney
may charge a claimant for services rendered in the preparation,
presentation, and prosecution of a claim before the Department.
A fee that does not exceed 20 percent of the past due amount of
benefits awarded on a claim shall be presumed to be reasonable.
(6)(A) The Secretary may charge and collect an assessment
from an individual recognized as an agent or attorney under
this section in any case in which the Secretary pays to the
agent or attorney, from past- due benefits owed to a claimant
represented by the agent or attorney, an amount as a fee in
accordance with a fee arrangement between the claimant and the
agent or attorney.
(B) The amount of an assessment under subparagraph (A) shall
be equal to five percent of the amount of the fee required to
be paid to the agent or attorney, except that the amount of
such an assessment may not exceed $100.
(C) The Secretary may collect an assessment under
subparagraph (A) by offsetting the amount of the fee otherwise
required to be paid to the agent or attorney from the past-due
benefits owed to the claimant represented by the agent or
attorney.
(D) An agent or attorney who is charged an assessment under
subparagraph (A) may not, directly or indirectly, request,
receive, or obtain reimbursement for such assessment from the
claimant represented by the agent or attorney.
(E) Amounts collected under this paragraph shall be deposited
in the account available for administrative expenses for
veterans' benefits programs. Amounts so deposited shall be
merged with amounts in such account and shall be available for
the same purpose, and subject to the same conditions and
limitations, as amounts otherwise in such account.
(b) Suspension of Agents and Attorneys.--The Secretary, after
notice and opportunity for a hearing, may suspend or exclude
from further practice before the Department any agent or
attorney recognized under this section if the Secretary finds
that such agent or attorney--
(1) has engaged in any unlawful, unprofessional, or
dishonest practice;
(2) has been guilty of disreputable conduct;
(3) is incompetent;
(4) has violated or refused to comply with any of the
laws administered by the Secretary, or with any of the
regulations or instructions governing practice before
the Department;
(5) has in any manner deceived, misled, or threatened
any actual or prospective claimant;
(6) has presented to the Secretary a frivolous claim,
issue, or argument, involving conduct inconsistent with
ethical standards for the practice of law;
(7) has been suspended or disbarred by any court or
bar to which such agent or attorney was previously
admitted to practice, or has been disqualified from
participating in or appearing before any Federal
agency, and has not been subsequently reinstated;
(8) has charged excessive or unreasonable fees, as
determined by the Secretary in accordance with
subsection (c)(3)(A); or
(9) has failed to comply with any other condition
specified in regulations prescribed by the Secretary
for purposes of this subsection.
(c)(1) Except as provided in paragraph (4), in connection
with a proceeding before the Department with respect to
benefits under laws administered by the Secretary, a fee may
not be charged, allowed, or paid for services of agents and
attorneys with respect to services provided before the date on
which a [notice of disagreement is filed] claimant is provided
notice of the agency of original jurisdiction's initial
decision under section 5104 of this title with respect to the
case. The limitation in the preceding sentence does not apply
to fees charged, allowed, or paid for services provided with
respect to proceedings before a court.
(2) A person who, acting as agent or attorney in a case
referred to in paragraph (1) of this subsection, represents a
person before the Department or the Board of Veterans' Appeals
after a [notice of disagreement is filed] claimant is provided
notice of the agency of original jurisdiction's initial
decision under section 5104 of this title with respect to the
case shall file a copy of any fee agreement between them with
the Secretary pursuant to regulations prescribed by the
Secretary.
(3)(A) The Secretary may, upon the Secretary's own motion or
at the request of the claimant, review a fee agreement filed
pursuant to paragraph (2) and may order a reduction in the fee
called for in the agreement if the Secretary finds that the fee
is excessive or unreasonable.
(B) A finding or order of the Secretary under subparagraph
(A) may be reviewed by the Board of Veterans' Appeals under
section 7104 of this title.
(C) If the Secretary under subsection (b) suspends or
excludes from further practice before the Department any agent
or attorney who collects or receives a fee in excess of the
amount authorized under this section, the suspension shall
continue until the agent or attorney makes full restitution to
each claimant from whom the agent or attorney collected or
received an excessive fee. If the agent or attorney makes such
restitution, the Secretary may reinstate such agent or attorney
under such rules as the Secretary may prescribe.
(4) A reasonable fee may be charged or paid in connection
with any proceeding before the Department in a case arising out
of a loan made, guaranteed, or insured under chapter 37 of this
title. A person who charges a fee under this paragraph shall
enter into a written agreement with the person represented and
shall file a copy of the fee agreement with the Secretary at
such time, and in such manner, as may be specified by the
Secretary.
(d) Payment of Fees Out of Past-Due Benefits.--(1) When a
claimant and an agent or attorney have entered into a fee
agreement described in paragraph (2), the total fee payable to
the agent or attorney may not exceed 20 percent of the total
amount of any past-due benefits awarded on the basis of the
claim.
(2)(A) A fee agreement referred to in paragraph (1) is one
under which the total amount of the fee payable to the agent or
attorney--
(i) is to be paid to the agent or attorney by the
Secretary directly from any past-due benefits awarded
on the basis of the claim; and
(ii) is contingent on whether or not the matter is
resolved in a manner favorable to the claimant.
(B) For purposes of subparagraph (A), a claim shall be
considered to have been resolved in a manner favorable to the
claimant if all or any part of the relief sought is granted.
(3) To the extent that past-due benefits are awarded in any
proceeding before the Secretary, the Board of Veterans'
Appeals, or the United States Court of Appeals for Veterans
Claims, the Secretary may direct that payment of any fee to an
agent or attorney under a fee arrangement described in
paragraph (1) be made out of such past-due benefits. In no
event may the Secretary withhold for the purpose of such
payment any portion of benefits payable for a period after the
date of the final decision of the Secretary, the Board of
Veterans' Appeals, or Court of Appeals for Veterans Claims
making (or ordering the making of) the award.
* * * * * * *
PART V--BOARDS, ADMINISTRATIONS, AND SERVICES
* * * * * * *
CHAPTER 71--BOARD OF VETERANS' APPEALS
Sec.
7101. Composition of Board of Veterans' Appeals.
* * * * * * *
[7105. Filing of notice of disagreement and appeal.]
7105. Filing of appeal.
* * * * * * *
[7106. Administrative appeals.]
* * * * * * *
[7109. Independent medical opinions.]
* * * * * * *
7113. Evidentiary record before the Board of Veterans' Appeals.
* * * * * * *
Sec. 7103. Reconsideration; correction of obvious errors
(a) The decision of the Board determining a matter under
section 7102 of this title is final unless the Chairman orders
reconsideration of the decision in accordance with subsection
(b). Such an order may be made on the Chairman's initiative or
upon motion of the claimant.
(b)(1) Upon the order of the Chairman for reconsideration of
the decision in a case, the case shall be referred--
(A) in the case of a matter originally [heard]
decided by a single member of the Board, to a panel of
not less than three members of the Board; or
(B) in the case of a matter originally [heard]
decided by a panel of members of the Board, to an
enlarged panel of the Board.
(2) A panel referred to in paragraph (1) may not include the
member, or any member of the panel, that made the decision
subject to reconsideration.
(3) A panel reconsidering a case under this subsection shall
render its decision after reviewing the entire record before
the Board. The decision of the panel shall be made by a
majority vote of the members of the panel. The decision of the
panel shall constitute the final decision of the Board.
(c) The Board on its own motion may correct an obvious error
in the record, without regard to whether there has been a
motion or order for reconsideration.
Sec. 7104. Jurisdiction of the Board
(a) All questions in a matter which under section 511(a) of
this title is subject to decision by the Secretary shall be
subject to one review on appeal to the Secretary. Final
decisions on such appeals shall be made by the Board. Decisions
of the Board shall be based on the entire record in the
proceeding and upon consideration of all evidence and material
of record and applicable provisions of law and regulation.
(b) Except as provided in section 5108 of this title, when a
claim is disallowed by the Board, the claim may not thereafter
be [reopened] readjudicated and allowed and a claim based upon
the same factual basis may not be considered.
(c) The Board shall be bound in its decisions by the
regulations of the Department, instructions of the Secretary,
and the precedent opinions of the chief legal officer of the
Department.
(d) Each decision of the Board shall include--
(1) a written statement of the Board's findings and
conclusions, and the reasons or bases for those
findings and conclusions, on all material issues of
fact and law presented on the record[; and];
(2) a general statement--
(A) reflecting whether evidence was not
considered in making the decision because the
evidence was received at a time when not
permitted under section 7113 of this title; and
(B) noting such options as may be available
for having the evidence considered by the
Department; and
[(2)] (3) an order granting appropriate relief or
denying relief.
(e)(1) After reaching a decision on a case, the Board shall
promptly mail a copy of its written decision to the claimant at
the last known address of the claimant.
(2) If the claimant has an authorized representative, the
Board shall--
(A) mail a copy of its written decision to the
authorized representative at the last known address of
the authorized representative; or
(B) send a copy of its written decision to the
authorized representative by any means reasonably
likely to provide the authorized representative with a
copy of the decision within the same time a copy would
be expected to reach the authorized representative if
sent by first-class mail.
Sec. 7105. Filing of [notice of disagreement and] appeal
(a) [Appellate review will be initiated by a notice of
disagreement and completed by a substantive appeal after a
statement of the case is furnished as prescribed in this
section.] Appellate review shall be initiated by the filing of
a notice of disagreement in the form prescribed by the
Secretary. Each appellant will be accorded hearing and
representation rights pursuant to the provisions of this
chapter and regulations of the Secretary.
[(b)(1) Except in the case of simultaneously contested
claims, notice of disagreement shall be filed within one year
from the date of mailing of notice of the result of initial
review or determination. Such notice, and appeals, must be in
writing and be filed with the activity which entered the
determination with which disagreement is expressed (hereinafter
referred to as the ``agency of original jurisdiction''). A
notice of disagreement postmarked before the expiration of the
one-year period will be accepted as timely filed.
[(2) Notices of disagreement, and appeals, must be in writing
and may be filed by the claimant, the claimant's legal
guardian, or such accredited representative, attorney, or
authorized agent as may be selected by the claimant or legal
guardian. Not more than one recognized organization, attorney,
or agent will be recognized at any one time in the prosecution
of a claim.
[(c) If no notice of disagreement is filed in accordance with
this chapter within the prescribed period, the action or
determination shall become final and the claim will not
thereafter be reopened or allowed, except as may otherwise be
provided by regulations not inconsistent with this title.
[(d)(1) Where the claimant, or the claimant's representative,
within the time specified in this chapter, files a notice of
disagreement with the decision of the agency of original
jurisdiction, such agency will take such development or review
action as it deems proper under the provisions of regulations
not inconsistent with this title. If such action does not
resolve the disagreement either by granting the benefit sought
or through withdrawal of the notice of disagreement, such
agency shall prepare a statement of the case. A statement of
the case shall include the following:
[(A) A summary of the evidence in the case pertinent
to the issue or issues with which disagreement has been
expressed.
[(B) A citation to pertinent laws and regulations and
a discussion of how such laws and regulations affect
the agency's decision.
[(C) The decision on each issue and a summary of the
reasons for such decision.
[(2) A statement of the case, as required by this subsection,
will not disclose matters that would be contrary to section
5701 of this title or otherwise contrary to the public
interest. Such matters may be disclosed to a designated
representative unless the relationship between the claimant and
the representative is such that disclosure to the
representative would be as harmful as if made to the claimant.
[(3) Copies of the ``statement of the case'' prescribed in
paragraph (1) of this subsection will be submitted to the
claimant and to the claimant's representative, if there is one.
The claimant will be afforded a period of sixty days from the
date the statement of the case is mailed to file the formal
appeal. This may be extended for a reasonable period on request
for good cause shown. The appeal should set out specific
allegations of error of fact or law, such allegations related
to specific items in the statement of the case. The benefits
sought on appeal must be clearly identified. The agency of
original jurisdiction may close the case for failure to respond
after receipt of the statement of the case, but questions as to
timeliness or adequacy of response shall be determined by the
Board of Veterans' Appeals.
[(4) The claimant in any case may not be presumed to agree
with any statement of fact contained in the statement of the
case to which the claimant does not specifically express
agreement.
[(5) The Board of Veterans' Appeals may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed.
[(e)(1) If, either at the time or after the agency of
original jurisdiction receives a substantive appeal, the
claimant or the claimant's representative, if any, submits
evidence to either the agency of original jurisdiction or the
Board of Veterans' Appeals for consideration in connection with
the issue or issues with which disagreement has been expressed,
such evidence shall be subject to initial review by the Board
unless the claimant or the claimant's representative, as the
case may be, requests in writing that the agency of original
jurisdiction initially review such evidence.
[(2) A request for review of evidence under paragraph (1)
shall accompany the submittal of the evidence.]
(b)(1)(A) Except in the case of simultaneously contested
claims, notice of disagreement shall be filed within one year
from the date of the mailing of notice of the decision of the
agency of original jurisdiction pursuant to section 5104,
5104B, or 5108 of this title.
(B) A notice of disagreement postmarked before the expiration
of the 1-year period shall be accepted as timely filed.
(C) A question as to timeliness or adequacy of the notice of
disagreement shall be decided by the Board.
(2)(A) Notices of disagreement shall be in writing, shall
identify the specific determination with which the claimant
disagrees, and may be filed by the claimant, the claimant's
legal guardian, or such accredited representative, attorney, or
authorized agent as may be selected by the claimant or legal
guardian.
(B) Not more than one recognized organization, attorney, or
agent may be recognized at any one time in the prosecution of a
claim.
(C) Notices of disagreement shall be filed with the Board.
(3) The notice of disagreement shall indicate whether the
claimant requests--
(A) a hearing before the Board, which shall include
an opportunity to submit evidence in accordance with
section 7113(b) of this title;
(B) an opportunity to submit additional evidence
without a hearing before the Board, which shall include
an opportunity to submit evidence in accordance with
section 7113(c) of this title; or
(C) a review by the Board without a hearing or the
submittal of additional evidence.
(4) The Secretary may develop a policy to permit a claimant
to modify the information identified in the notice of
disagreement after the notice of disagreement has been filed
under this section pursuant to such requirements as the
Secretary may prescribe.
(c) If no notice of disagreement is filed in accordance with
this chapter within the prescribed period, the action or
decision of the agency of original jurisdiction shall become
final and the claim shall not thereafter be readjudicated or
allowed, except as may otherwise be provided by section 5104B
or 5108 of this title or such regulations as are consistent
with this title.
(d) The Board of Veterans' Appeals may dismiss any appeal
which fails to identify the specific determination with which
the claimant disagrees.
Sec. 7105A. Simultaneously contested claims
(a) In simultaneously contested claims where one is allowed
and one rejected, the time allowed for the filing of a notice
of disagreement shall be sixty days from the date notice of the
adverse action is mailed. In such cases the agency of original
jurisdiction shall promptly notify all parties in interest at
the last known address of the action taken, expressly inviting
attention to the fact that notice of disagreement will not be
entertained unless filed within the sixty-day period prescribed
by this subsection.
[(b) Upon the filing of a notice of disagreement, all parties
in interest will be furnished with a statement of the case in
the same manner as is prescribed in section 7105. The party in
interest who filed a notice of disagreement will be allowed
thirty days from the date of mailing of such statement of the
case in which to file a formal appeal. Extension of time may be
granted for good cause shown but with consideration to the
interests of the other parties involved. The substance of the
appeal will be communicated to the other party or parties in
interest and a period of thirty days will be allowed for filing
a brief or argument in answer thereto. Such notice shall be
forwarded to the last known address of record of the parties
concerned, and such action shall constitute sufficient evidence
of notice.]
(b)(1) The substance of the notice of disagreement shall be
communicated to the other party or parties in interest and a
period of thirty days shall be allowed for filing a brief or
argument in response thereto.
(2) Such notice shall be forwarded to the last known address
of record of the parties concerned, and such action shall
constitute sufficient evidence of notice.
[Sec. 7106. Administrative appeals
[Application for review on appeal may be made within the one-
year period prescribed in section 7105 of this title by such
officials of the Department as may be designated by the
Secretary. An application entered under this paragraph shall
not operate to deprive the claimant of the right of review on
appeal as provided in this chapter.
[Sec. 7107. Appeals: dockets; hearings
[(a)(1) Except as provided in paragraphs (2) and (3) and in
subsection (f), each case received pursuant to application for
review on appeal shall be considered and decided in regular
order according to its place upon the docket.
[(2) A case referred to in paragraph (1) may, for cause
shown, be advanced on motion for earlier consideration and
determination. Any such motion shall set forth succinctly the
grounds upon which the motion is based. Such a motion may be
granted only--
[(A) if the case involves interpretation of law of
general application affecting other claims;
[(B) if the appellant is seriously ill or is under
severe financial hardship; or
[(C) for other sufficient cause shown.
[(3) A case referred to in paragraph (1) may be postponed for
later consideration and determination if such postponement is
necessary to afford the appellant a hearing.
[(b) The Board shall decide any appeal only after affording
the appellant an opportunity for a hearing.
[(c) A hearing docket shall be maintained and formal recorded
hearings shall be held by such member or members of the Board
as the Chairman may designate. Such member or members
designated by the Chairman to conduct the hearing shall, except
in the case of a reconsideration of a decision under section
7103 of this title, participate in making the final
determination of the claim.
[(d)(1)(A)(i) Upon request for a hearing, the Board shall
determine, for purposes of scheduling the hearing for the
earliest possible date, whether a hearing before the Board will
be held at its principal location or at a facility of the
Department or other appropriate Federal facility located within
the area served by a regional office of the Department.
[(ii) The Board shall also determine whether to provide a
hearing through the use of the facilities and equipment
described in subsection (e)(1) or by the appellant personally
appearing before a Board member or panel.
[(B)(i) The Board shall notify the appellant of the
determinations of the location and type of hearing made under
subparagraph (A).
[(ii) Upon notification, the appellant may request a
different location or type of hearing as described in such
subparagraph.
[(iii) If so requested, the Board shall grant such request
and ensure that the hearing is scheduled at the earliest
possible date without any undue delay or other prejudice to the
appellant.
[(2) A hearing to be held within an area served by a regional
office of the Department shall (except as provided in paragraph
(3)) be scheduled to be held in accordance with the place of
the case on the docket under subsection (a) relative to other
cases on the docket for which hearings are scheduled to be held
within that area.
[(3) A hearing to be held within an area served by a regional
office of the Department may, for cause shown, be advanced on
motion for an earlier hearing. Any such motion shall set forth
succinctly the grounds upon which the motion is based. Such a
motion may be granted only--
[(A) if the case involves interpretation of law of
general application affecting other claims;
[(B) if the appellant is seriously ill or is under
severe financial hardship; or
[(C) for other sufficient cause shown.
[(e)(1) At the request of the Chairman, the Secretary may
provide suitable facilities and equipment to the Board or other
components of the Department to enable an appellant located at
a facility within the area served by a regional office to
participate, through voice transmission or through picture and
voice transmission, by electronic or other means, in a hearing
with a Board member or members sitting at the Board's principal
location.
[(2) Any hearing provided through the use of the facilities
and equipment described in paragraph (1) shall be conducted in
the same manner as, and shall be considered the equivalent of,
a personal hearing.
[(f) Nothing in this section shall preclude the screening of
cases for purposes of--
[(1) determining the adequacy of the record for
decisional purposes; or
[(2) the development, or attempted development, of a
record found to be inadequate for decisional purposes.]
Sec. 7107. Appeals: dockets; hearings
(a) Dockets.--(1) Subject to paragraph (2), the Board shall
maintain at least two separate dockets.
(2) The Board may not maintain more than two separate dockets
unless the Board notifies the Committee on Veterans' Affairs of
the Senate and the Committee on Veterans' Affairs of the House
of Representatives of any additional docket, including a
justification for maintaining such additional docket.
(3)(A) The Board may assign to each docket maintained under
paragraph (1) such cases as the Board considers appropriate,
except that cases described in clause (i) of subparagraph (B)
may not be assigned to any docket to which cases described in
clause (ii) of such paragraph are assigned.
(B) Cases described in this subparagraph are the following:
(i) Cases in which no Board hearing is requested and
no additional evidence will be submitted.
(ii) Cases in which a Board hearing is requested in
the notice of disagreement.
(4) Except as provided in subsection (b), each case before
the Board will be decided in regular order according to its
respective place on the docket to which it is assigned by the
Board.
(b) Advancement on the Docket.--(1) A case on one of the
dockets of the Board maintained under subsection (a) may, for
cause shown, be advanced on motion for earlier consideration
and determination.
(2) Any such motion shall set forth succinctly the grounds
upon which the motion is based.
(3) Such a motion may be granted only--
(A) if the case involves interpretation of law of
general application affecting other claims;
(B) if the appellant is seriously ill or is under
severe financial hardship; or
(C) for other sufficient cause shown.
(c) Manner and Scheduling of Hearings for Cases on Docket
That May Include Hearing.--(1) For cases on a docket maintained
by the Board under subsection (a) that may include a hearing,
in which a hearing is requested in the notice of disagreement,
the Board shall notify the appellant whether a Board hearing
will be held--
(A) at its principal location; or
(B) by picture and voice transmission at a facility
of the Department where the Secretary has provided
suitable facilities and equipment to conduct such
hearings.
(2)(A) Upon notification of a Board hearing at the Board's
principal location as described in subparagraph (A) of
paragraph (1), the appellant may alternatively request a
hearing as described in subparagraph (B) of such paragraph. If
so requested, the Board shall grant such request.
(B) Upon notification of a Board hearing by picture and voice
transmission as described in subparagraph (B) of paragraph (1),
the appellant may alternatively request a hearing as described
in subparagraph (A) of such paragraph. If so requested, the
Board shall grant such request.
(d) Screening of Cases.--Nothing in this section shall be
construed to preclude the screening of cases for purposes of--
(1) determining the adequacy of the record for
decisional purposes; or
(2) the development, or attempted development, of a
record found to be inadequate for decisional purposes.
(e) Policy on Changing Dockets.--The Secretary may develop
and implement a policy allowing a claimant to move the
claimant's case from one docket to another docket.
* * * * * * *
[Sec. 7109. Independent medical opinions
[(a) When, in the judgment of the Board, expert medical
opinion, in addition to that available within the Department,
is warranted by the medical complexity or controversy involved
in an appeal case, the Board may secure an advisory medical
opinion from one or more independent medical experts who are
not employees of the Department.
[(b) The Secretary shall make necessary arrangements with
recognized medical schools, universities, or clinics to furnish
such advisory medical opinions at the request of the Chairman
of the Board. Any such arrangement shall provide that the
actual selection of the expert or experts to give the advisory
opinion in an individual case shall be made by an appropriate
official of such institution.
[(c) The Board shall furnish a claimant with notice that an
advisory medical opinion has been requested under this section
with respect to the claimant's case and shall furnish the
claimant with a copy of such opinion when it is received by the
Board.]
* * * * * * *
Sec. 7111. Revision of decisions on grounds of clear and unmistakable
error
(a) A decision by the Board is subject to revision on the
grounds of clear and unmistakable error. If evidence
establishes the error, the prior decision shall be reversed or
revised.
(b) For the purposes of authorizing benefits, a rating or
other adjudicative decision of the Board that constitutes a
reversal or revision of a prior decision of the Board on the
grounds of clear and unmistakable error has the same effect as
if the decision had been made on the date of the prior
decision.
(c) Review to determine whether clear and unmistakable error
exists in a case may be instituted by the Board on the Board's
own motion or upon request of the claimant.
(d) A request for revision of a decision of the Board based
on clear and unmistakable error may be made at any time after
that decision is made.
(e) Such a request shall be submitted directly to the Board
and shall be decided by the Board on the merits[, without
referral to any adjudicative or hearing official acting on
behalf of the Secretary].
(f) A claim filed with the Secretary that requests reversal
or revision of a previous Board decision due to clear and
unmistakable error shall be considered to be a request to the
Board under this section, and the Secretary shall promptly
transmit any such request to the Board for its consideration
under this section.
* * * * * * *
Sec. 7113. Evidentiary record before the Board of Veterans' Appeals
(a) Cases With No Request for a Hearing or Additional
Evidence.--For cases in which a hearing before the Board of
Veterans' Appeals is not requested in the notice of
disagreement and no request was made to submit evidence, the
evidentiary record before the Board shall be limited to the
evidence of record at the time of the decision of the agency of
original jurisdiction on appeal.
(b) Cases With a Request for Hearing.--(1) Except as provided
in paragraph (2), for cases in which a hearing is requested in
the notice of disagreement, the evidentiary record before the
Board shall be limited to the evidence of record at the time of
the decision of the agency of original jurisdiction on appeal.
(2) The evidentiary record before the Board for cases
described in paragraph (1) shall include each of the following,
which the Board shall consider in the first instance:
(A) Evidence submitted by the appellant and the
representative of the appellant, if any, at the Board
hearing.
(B) Evidence submitted by the appellant and the
representative of the appellant, if any, within 90 days
following the Board hearing.
(c) Cases With No Request for a Hearing and With a Request
for Additional Evidence.--(1) Except as provided in paragraph
(2), for cases in which a hearing is not requested in the
notice of disagreement but an opportunity to submit evidence is
requested, the evidentiary record before the Board shall be
limited to the evidence considered by the agency of original
jurisdiction in the decision on appeal.
(2) The evidentiary record before the Board for cases
described in paragraph (1) shall include each of the following,
which the Board shall consider in the first instance:
(A) Evidence submitted by the appellant and the
representative of the appellant, if any, with the
notice of disagreement.
(B) Evidence submitted by the appellant and the
representative of the appellant, if any, within 90 days
following receipt of the notice of disagreement.
* * * * * * *
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