[Senate Report 115-126]
[From the U.S. Government Publishing Office]
Calendar No. 166
115th Congress } { Report
SENATE
1st Session } { 115-126
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VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017
_______
July 10, 2017.--Ordered to be printed
_______
Mr. Isakson, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany S. 1024]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs (hereinafter,
``Committee''), to which was referred the bill (S. 1024) to
amend title 38, United States Code (hereinafter, ``U.S.C.''),
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, reports favorably
thereon with an amendment in the nature of a substitute and
recommends that the bill, as amended, do pass.
Introduction
On May 3, 2017, Chairman Isakson introduced S. 1024, the
proposed Veterans Appeals Improvement and Modernization Act of
2017. S. 1024 would restructure the appeals process within the
Department of Veterans Affairs (hereinafter, ``VA'') consistent
with a proposal developed by VA and stakeholders; would require
VA to submit to Congress and the Government Accountability
Office (hereinafter, ``GAO'') a comprehensive plan for
processing appeals that are pending before the new appeals
system takes effect (hereinafter, ``legacy appeals'') and
implementing the new appeals system; would authorize VA to test
facets of the new system before it takes effect; and would
require VA periodically to publish on its website data
regarding processing legacy appeals and appeals in the new
system. Senators Baldwin, Blumenthal, Daines, Hassan, Kaine,
King, Tester, and Udall are original cosponsors. Senators
Brown, Capito, Cochran, Collins, Crapo, Durbin, Enzi, Hatch,
Heinrich, Heller, Hirono, Manchin, McCaskill, Nelson, Rounds,
Thune, and Warner were later added as cosponsors. The bill was
referred to the Committee.
On January 17, 2017, Senator Rubio introduced S. 152, the
proposed VA Accountability First and Appeals Modernization Act
of 2017. S. 152 would reform the appeals process within VA
consistent with a proposal developed by VA and stakeholders.
Senators McCain and Toomey are original cosponsors. Senators
Daines and Grassley were later added as cosponsors. The bill
was referred to the Committee.
On March 23, 2017, Senator Blumenthal introduced S. 712,
the proposed Department of Veterans Affairs Appeals
Modernization Act of 2017. S. 712 would reform the appeals
process within VA consistent with a proposal developed by VA
and stakeholders. Senators Baldwin, Brown, Casey, Durbin,
Feinstein, Hassan, Hirono, Kaine, King, Manchin, Murray,
Sanders, Shaheen, Tester, Udall, Van Hollen, and Warner are
original cosponsors. Senators Franken, Menendez, Merkley, and
Wyden were later added as cosponsors. The bill was referred to
the Committee.
On April 25, 2017, Senator Sullivan introduced S. 933, the
proposed Express Appeals Act of 2017. S. 933 would direct VA to
carry out a pilot program to provide veterans the option of
using an alternative appeals process to more quickly determine
claims for disability compensation. Senator Casey is an
original cosponsor. The bill was referred to the Committee.
Committee Hearing
On May 17, 2017, the Committee held a hearing on
legislation pending before the Committee, including S. 1024.
Testimony was received by Jennifer S. Lee, M.D., Deputy Under
Secretary for Health for Policy and Services, Veterans Health
Administration, U.S. Department of Veterans Affairs; Louis J.
Celli, Jr., Director, National Veterans Affairs and
Rehabilitation Division, The American Legion; Kayda Keleher,
Associate Director, National Legislative Service, Veterans of
Foreign Wars; Adrian Atizado, Deputy National Legislative
Director, Disabled American Veterans; Allison Jaslow, Executive
Director, Iraq and Afghanistan Veterans of America; and J.
David Cox, National President, American Federation of
Government Employees.
Committee Meeting
After reviewing the testimony from the foregoing hearing,
the Committee met in open session on June 28, 2017, to consider
an amended version of S. 1024. The Committee voted by voice
vote, without objection, to report favorably to the Senate
S. 1024 as amended.
Summary of the Committee Bill as Reported
S. 1024, as reported (hereinafter, ``the Committee bill''),
consists of six sections, summarized below.
Section 1 provides a short title.
Section 2 would restructure the appeals process within VA
consistent with a proposal developed by VA and stakeholders.
Section 3 would require VA to submit to Congress and GAO a
comprehensive plan for processing legacy appeals and
implementing the new appeals system and to provide periodic
reports on VA's progress in carrying out that plan.
Section 4 would authorize VA to test facets of the new
system before it takes effect, including carrying out the fully
developed appeals pilot program outlined in S. 933.
Section 5 would require VA periodically to publish on its
website data regarding processing legacy appeals and appeals in
the new system.
Section 6 would define several terms used in the Committee
bill.
Background and Discussion
Sec. 2. Reform of rights and processes relating to appeals of decisions
regarding claims for benefits under laws administered by
Secretary of Veterans Affairs.
In general, section 2 of the Committee bill, which is
derived from S. 152 and S. 712, includes a proposal to
restructure the VA appeals process. The proposal was developed
by VA in collaboration with stakeholders.
Background. In general, an individual who is dissatisfied
with VA's decision on a claim for VA benefits may appeal that
decision. There are a number of potential steps in the appeals
process at VA's Veterans Benefits Administration (hereinafter,
``VBA''), including review by a Decision Review Officer, VA
issuing a statement of the case, the appellant filing a
substantive appeal, VA issuing supplemental statements of the
case, and VA certifying the appeal to the Board of Veterans'
Appeals (hereinafter, ``Board'' or ``BVA''). At the Board, the
appellant may request an in-person hearing in Washington, DC,
an in-person hearing at a VA office in his or her locality, or
a video-conference hearing. Also, an individual generally may
submit evidence at any time during the appeals process and VA
has a duty to assist the individual in obtaining evidence
needed to prevail. Between January 2013 and January 2016, the
number of appeals pending agency-wide at VA rose from
approximately 325,000 appeals to over 441,000 appeals.
Beginning in 2016, VA conducted a series of meetings with a
range of stakeholders in order to develop a path forward on
reforming the appeals process. Based on those meetings, VA
submitted to Congress in April 2016 draft legislation to
restructure the VA appeals process in order to provide
claimants with several options if they are not satisfied with
VA's initial decision on their claims for benefits. Since that
time, the Committee has received further feedback from
stakeholders on the appeals reform proposal. The provisions in
section 2 of the Committee bill reflect the original VA
proposal along with technical changes and further improvements
based on that feedback from stakeholders.
Committee Bill. The specific changes made by section 2 of
the Committee bill are outlined below. The Committee expects
and intends that VA will operate under the new appeals
framework in a veteran-friendly manner.
Sec. 2(a). Definitions.
Section 2(a) of the Committee bill would define several
terms that would be utilized in title 38, U.S.C., if the
Committee bill is enacted.
Background. Section 101 of title 38, U.S.C., sets forth a
number of definitions of terms used in title 38, U.S.C.
Committee Bill. Section 2(a) of the Committee bill would
amend section 101 of title 38, U.S.C., to define ``agency of
original jurisdiction'' as ``the activity which entered the
original determination with regard to a claim for benefits
under laws administered by the Secretary''; to define
``relevant evidence'' as ``evidence that tends to prove or
disprove a matter in issue''; and to define ``supplemental
claim'' as ``a 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.''
Sec. 2(b). Notice regarding claims.
Section 2(b) of the Committee bill would modify VA's duty
to notify, so that VA would not need to notify a claimant of
the information or evidence necessary to substantiate his or
her claim for benefits, if the individual received a decision
on that claim within the past year by the agency of original
jurisdiction or the Board.
Background. Section 5103(a) of title 38, U.S.C., requires
VA to provide notice to a claimant of the information or
evidence necessary to substantiate the individual's claim for
benefits. VA is required to prescribe by regulation the content
of the notice that will be provided for an original claim, a
claim for reopening, or a claim for increase.
Committee Bill. Section 2(b) of the Committee bill would
amend section 5103(a) of title 38, U.S.C., to provide that VA
does not need to provide that notice with respect to a
supplemental claim that is filed on or before 1 year after the
agency of original jurisdiction issues a decision or on or
before 1 year after the Board issues a decision. Section 2(b)
of the Committee bill also would delete the references in
section 5103(a) of title 38, U.S.C., to a claim for reopening
and claim for an increase and instead add a reference to
supplemental claims, because all claims other than original
claims would be called supplemental claims under the new
appeals system.
Sec. 2(c). Modification of rule regarding disallowed claims.
Section 2(c) of the Committee bill would make conforming
changes to section 5103A of title 38, U.S.C.
Background. Under section 5108 of title 38, U.S.C., if a
claim has been disallowed, VA must reopen the claim and review
the prior disposition if the claimant submits new and material
evidence with respect to the claim. Also, under section 5103A
of title 38, U.S.C., VA has a duty to assist claimants in
obtaining evidence needed to substantiate a claim for VA
benefits. Under subsection 5103A(f) of title 38, U.S.C., that
duty does not require VA to reopen a previously disallowed
claim unless new and material evidence has been presented or
secured with respect to the claim.
Committee Bill. Section 2(c) of the Committee bill would
amend section 5103A(f) of title 38, U.S.C., to omit the
reference to reopening, because all claims other than original
claims would be called supplemental claims under the new
appeals system. It also would change the words ``new and
material'' to ``new and relevant'' to reflect the modifications
made by section 2(i) of the Committee bill, which specifies
that a supplemental claim would need new and relevant evidence,
rather than new and material evidence, to be readjudicated.
Sec. 2(d). Modification of duty to assist claimants.
Section 2(d) of the Committee bill would amend section
5103A of title 38, U.S.C., to provide that duty to assist
functions would be carried out by the agency of original
jurisdiction.
Background. Under section 5103A of title 38, U.S.C., VA has
a duty to assist claimants in obtaining evidence needed to
substantiate a claim for VA benefits. Generally, that duty
applies throughout the appeals process at VBA and the Board.
Committee Bill. Section 2(d) of the Committee bill would
amend section 5103A of title 38, U.S.C., to add a new
subsection (e)(1) providing that the duty to assist will apply
only to a claim or supplemental claim until the time a claimant
is provided notice of the decision of the agency of original
jurisdiction with respect to the claim. It would add a new
subsection (e)(2) specifying that the duty to assist would not
apply to higher-level review (as added by section 2(g) of the
Committee bill) or to review on appeal by the Board.
Section 2(d) of the Committee bill would amend section
5103A of title 38, U.S.C., to add a new subsection (f)(1)
specifying that, if a higher-level adjudicator identifies or
learns of an error on the part of the agency of original
jurisdiction to satisfy its duty to assist and that error
occurred prior to the agency of original jurisdiction decision,
the higher-level adjudicator must return the claim for
correction of the error and readjudication, unless the
Secretary may award the maximum benefit in accordance with
title 38, U.S.C., based on the evidence of record.
Section 2(d) of the Committee bill would amend section
5103A of title 38, U.S.C., to add a new subsection (f)(2)(A)
specifying that, if the Board identifies or learns of an error
on the part of the agency of original jurisdiction to satisfy
the duty to assist and that error occurred prior to the agency
of original jurisdiction decision on appeal, the Board must
remand the claim to the agency of original jurisdiction for
correction of the error, unless the Secretary may award the
maximum benefit in accordance with title 38, U.S.C., based on
the evidence of record.
Section 2(d) of the Committee bill would amend section
5103A of title 38, U.S.C., to add a new subsection (f)(2)(B)
specifying that remand for correction of a duty to assist error
may include directing the regional office to obtain an advisory
medical opinion.
Finally, section 2(d) of the Committee bill would amend
section 5103A of title 38, U.S.C., to include a new subsection
(f)(3) specifying that nothing in this modified portion of
section 5103A of title 38, U.S.C., shall be construed to imply
that VA does not have a duty to correct a duty to assist error
that was erroneously not identified during higher-level review
or during review on appeal to the Board.
Given that the bill would narrow the timeframe during which
the duty to assist would apply, it is the Committee's
expectation that VA will place greater emphasis on correctly
fulfilling the duty to assist at the regional offices and will
aggressively seek to detect and correct duty to assist errors
during later review.
Sec. 2(e). Decisions and notices of decisions.
Section 2(e) of the Committee bill would require VA to
enhance the information included in notifications of decisions
on claims for benefits.
Background. Under section 5104(a) of title 38, U.S.C., when
VA makes a decision affecting the provision of benefits to a
claimant, VA must provide the claimant and his or her
representative with notice of the decision. Under section
5104(b) of title 38, U.S.C., in any case where VA denies the
benefit sought, that notice must include a statement of the
reasons for the decision and a summary of the evidence
considered by VA.
Committee Bill. Section 2(e) of the Committee bill would
amend section 5104(b) of title 38, U.S.C., to specify that each
notice provided under section 5104(a) must include all of the
following: Identification of the issues adjudicated; a summary
of the evidence considered by VA; a summary of applicable laws
and regulations; identification of findings favorable to the
claimant; in the case of a denial, identification of elements
not satisfied leading to the denial; an explanation of how to
obtain or access evidence used in making the decision; and, if
applicable, identification of the criteria that must be
satisfied to grant service connection or the next higher level
of compensation.
Sec. 2(f). Binding nature of favorable findings.
Section 2(f) of the Committee bill would add a new section
to title 38, U.S.C., outlining the circumstances under which a
favorable finding by one VA adjudicator will be binding on
other VA adjudicators.
Background. Generally, if multiple VA adjudicators in
succession make decisions on a claim for benefits, they are not
bound by factual findings made by prior adjudicators.
Committee Bill. Section 2(f) of the Committee bill would
add a new section 5104A to title 38, U.S.C., providing that any
finding favorable to the claimant will be binding on all
subsequent adjudicators within VA, unless clear and convincing
evidence is shown to the contrary to rebut the favorable
finding.
Sec. 2(g). Higher-level review by agency of original jurisdiction.
Section 2(g) of the Committee bill would add a new section
5104B to title 38, U.S.C., outlining the new higher-level
review option for an individual who is not satisfied with VA's
initial decision on his or her claim for benefits.
Background. Under the new appeals system, one of the
options available to an individual who is dissatisfied with
VA's initial decision on a claim for benefits would be to seek
higher-level review by the agency of original jurisdiction.
Committee Bill. Section 2(g) of the Committee bill would
add a new section 5104B to title 38, U.S.C., outlining the new
higher-level review process.
New subsection 5104B(a) of title 38, U.S.C., would provide
that a claimant may request review of the decision of the
agency of original jurisdiction by a higher-level adjudicator
within the agency of original jurisdiction. VA would be
required to approve each request for review.
New subsection 5104B(b) of title 38, U.S.C., would provide
that a request for higher-level review must be in writing in
such form as the Secretary of Veterans Affairs may prescribe
and be made within 1 year of the notice of the agency of
original jurisdiction's decision. The claimant may request that
the review be conducted by a higher-level adjudicator at the
same office or by an adjudicator at a different office. VA
could not deny a request for review by an adjudicator at a
different office without good cause.
New subsection 5104B(c) of title 38, U.S.C., would provide
that notice of a higher-level review decision must be provided
in writing and must include a general statement reflecting
whether evidence was not considered because it was received
after the initial decision and noting the options available to
have the new evidence considered by VA.
New subsection 5104B(d) of title 38, U.S.C., would provide
that the evidentiary record before the higher-level adjudicator
will be limited to the evidence of record in the agency of
original jurisdiction decision being reviewed.
New subsection 5104B(e) of title 38, U.S.C., would provide
that review by the higher-level adjudicator will be de novo.
Sec. 2(h). Options following decision by agency of original
jurisdiction.
Section 2(h) of the Committee bill would outline the
options available under the new appeals system for an
individual who is not satisfied with VA's initial decision on
his or her claim for benefits.
Background. Under the new appeals system, individuals who
are dissatisfied with VA's initial decision on a claim would
have the option to seek higher-level review by the agency of
original jurisdiction; to file a supplemental claim with the
agency of original jurisdiction; or to appeal to the Board.
Committee Bill. Section 2(h) of the Committee bill would
add a new section 5104C to title 38, U.S.C., providing in
subsection (a)(1) that a claimant may take any of the following
actions within the year after the agency of original
jurisdiction issues a decision: File a request for higher-level
review, file a supplemental claim, or file a notice of
disagreement. New section 5104C(a)(2)(A) would provide that,
once a claimant takes one of those actions, the claimant may
not take another one of those actions with respect to that
claim or the same issue contained within the claim until the
higher-level review, supplemental claim, or notice of
disagreement is adjudicated or the claimant withdraws the
request for higher-level review, supplemental claim, or notice
of disagreement.
New section 5104C(a)(2)(B) and (C) of title 38, U.S.C.,
would provide that nothing in subsection (a) will prohibit a
claimant from taking any of the actions in succession with
respect to a claim or an issue contained within the claim and
that nothing in that subsection will prohibit a claimant from
taking different actions simultaneously with respect to
different claims or different issues contained within a claim.
New section 5104C(a)(2)(D) of title 38, U.S.C., would
provide that VA may develop and implement a policy for
claimants who take one of the above actions and want to
withdraw that action before it has been acted on by VA and to
instead take a different action.
Finally, new section 5104C(b) of title 38, U.S.C., would
provide that, if more than 1 year has passed since VA issued
its decision on a claim, the claimant may file a supplemental
claim.
Sec. 2(i). Supplemental claims.
Section 2(i) of the Committee bill would amend section 5108
of title 38, U.S.C., to lower the evidentiary threshold for
having a claim readjudicated after it has been disallowed by
VA.
Background. Under section 5108 of title 38, U.S.C., if a
claim has been disallowed, VA must reopen the claim and review
the prior disposition if the claimant submits new and material
evidence with respect to the claim. Pursuant to section
3.159(c) of title 38, Code of Federal Regulations, VA will
provide a limited duty to assist with respect to a claim to
reopen in order to help the claimant obtain new and material
evidence. That limited duty includes assisting the claimant in
obtaining from Federal agencies or from sources other than
Federal agencies existing records that are reasonably
identified by the claimant. See 66 Fed. Reg. 45,620, 45,628
(2001).
The draft legislation submitted to Congress by VA proposed
to change the ``new and material'' standard to ``new and
relevant.'' Several stakeholders have expressed concern that
the ``new and relevant'' standard could be construed as setting
a higher evidentiary threshold than the current ``new and
material'' standard. For example, in testimony provided for a
hearing before the House Committee on Veterans' Affairs
regarding the companion bill to S. 1024, Vietnam Veterans of
America stated that they have ``significant concern that VA is
intending to make this definition more restrictive than what
was promised to stakeholders during negotiations.'' In
addition, some stakeholders have expressed concern about the
timeframe for duty to assist ending after a decision by the
agency of original jurisdiction. For example, Military-Veterans
Advocacy provided this testimony for the Committee's May 17,
2017, legislative hearing:
S. 1024 continues to strip the duty to assist from the
veteran after the initial decision. As attorneys are
not able to provide paid representation until after the
initial decision, this measure effectively eliminates
any ability to supplement the record.
* * * While inadequate at best, the duty to assist
allows the attorney some latitude to obtain records to
prepare the case. Without the duty to assist, the
attorney will be required to rely upon the Freedom of
Information Act. This will not only result in costs
being attributed to the veteran but result in undue
delay.
Committee Bill. Section 2(i)(1) of the Committee bill would
amend section 5108 of title 38, U.S.C., to provide that, if new
and relevant evidence is presented or secured with respect to a
supplemental claim, VA must readjudicate the claim taking into
consideration all of the evidence of record. That would include
any evidence submitted prior to the former disposition of the
claim, as well as additional evidence received before the
readjudication occurs.
In light of feedback from stakeholders, section 2(i)(1) of
the Committee bill makes clear that, with respect to
supplemental claims, VA will have an obligation to assist a
claimant in obtaining existing records even if the claimant has
not yet submitted new and relevant evidence. Specifically,
section 2(i)(1) of the Committee bill would add a new
subsection (b) to section 5108 of title 38, U.S.C., providing
that if a claimant, in connection with a supplemental claim,
reasonably identifies existing records, whether or not the
records are in the custody of the Federal government, VA will
assist the claimant in obtaining those records in accordance
with the duty to assist provisions set forth in section 5103A
of title 38, U.S.C. This is intended to ensure that, even after
an initial decision on a claim, a claimant will have access to
VA's duty to assist in obtaining additional records.
In light of feedback from stakeholders, section 2(i)(2) of
the Committee bill includes a rule of construction specifying
that section 5108 of title 38, U.S.C., as amended by this bill,
shall not be construed to impose a higher evidentiary threshold
than the ``new and material'' evidentiary standard that was in
section 5108 prior to the changes made by this bill.
Sec. 2(j). Remand to obtain advisory medical opinion.
Section 2(j) of the Committee bill would require the Board
to remand a case to obtain an independent medical opinion if
the agency of original jurisdiction should have exercised its
discretion to obtain such an opinion.
Background. Under section 5109(a) of title 38, U.S.C., if,
in the judgment of the Secretary, expert medical opinion in
addition to that available within VA is warranted by the
medical complexity or controversy involved in a case, VA may
secure an advisory medical opinion from one or more independent
medical experts who are not employees of VA.
Committee Bill. Section 2(j) of the Committee bill would
add a new subsection (d) to section 5109 of title 38, U.S.C.,
providing that the Board shall remand a claim to direct the
agency of original jurisdiction to obtain an advisory medical
opinion from an independent medical expert if the Board finds
that VBA should have exercised its discretion to obtain such an
opinion. The Board's remand instructions must include the
questions to be posed to the independent medical expert.
Sec. 2(k). Restatement of requirement for expedited treatment of
returned or remanded claims.
Section 2(k) of the Committee bill, in order to reflect the
options under the new appeals system, would make technical
changes to the requirement that VA provide expedited treatment
of remanded claims.
Background. Under section 5109B of title 38, U.S.C., VA is
required to take such actions as may be necessary to provide
for the expeditious treatment by the appropriate regional
office of any claim that is remanded to a regional office by
the Board.
Committee Bill. Section 2(k) of the Committee bill would
amend section 5109B of title 38, U.S.C., to provide that VA
must take such actions as may be necessary to provide for the
expeditious treatment by VBA of any claim that is returned by a
higher-level adjudicator or remanded by the Board.
Sec. 2(l). Effective dates of awards.
Section 2(l) of the Committee bill would amend section 5110
of title 38, U.S.C., to establish the effective date of an
award of benefits.
Background. Under section 5110 of title 38, U.S.C., the
effective date of an award of benefits is generally no earlier
than the date of receipt of the application that resulted in
the award of benefits.
The draft legislation submitted to Congress by VA would
provide that the date of application would be considered the
date of filing the initial application for a benefit if an
individual who is dissatisfied with a decision, within 1 year
of a decision, seeks a higher-level review, files a
supplemental claim, files an appeal to the Board, or files a
supplemental claim after a Board decision. Further, the
effective date would be preserved if the individual
continuously pursues a new option to be reviewed at VA under
the new appeals system within 1 year of the latest decision.
Stakeholders have expressed concern that the draft language
did not preserve the effective date if a claimant files a
supplemental claim after a decision from the Court of Appeals
for Veterans Claims (hereinafter, ``CAVC'' or ``Court''). For
example, in testimony provided for a hearing before this
Committee on May 24, 2016, regarding a discussion draft bill
based on VA's draft, Veterans of Foreign Wars stated,
This proposal is designed to significantly reduce the
impact of the CAVC on claims processing with VA by
discouraging veterans from appealing to the Court. To
ensure that veterans are not discouraged from appealing
to the CAVC, we urge Congress to amend this proposal to
allow claimants to submit new evidence within 1 year of
a CAVC decision.
Committee Bill. Section 2(l) of the Committee bill would
amend section 5110 of title 38, U.S.C., to provide that the
date of application will be considered the date of filing the
initial application for a benefit if the claim is continuously
pursued by filing any of the following, either alone or in
succession: a request for higher-level review on or before the
date 1 year after the date on which the agency of original
jurisdiction issues a decision, a supplemental claim on or
before the date 1 year after the date on which the agency of
original jurisdiction issues a decision, a notice of
disagreement on or before the date 1 year after the date on
which the agency of original jurisdiction issues a decision, a
supplemental claim on or before the date 1 year after the date
on which the Board issues a decision, and a supplemental claim
on or before the date 1 year after the date on which the Court
of Appeals for Veterans Claims issues a decision.
Section 2(l) of the Committee bill would amend section 5110
to further provide that, for supplemental claims received more
than 1 year after the agency of original jurisdiction issued a
decision or the Board of Veterans' Appeals issued a decision,
the effective date will be fixed in accordance with facts found
but will not be earlier than the date of receipt of the
supplemental claim.
In light of stakeholder input and in an effort to preserve
judicial review, the Committee bill includes the protection of
the effective date if an individual files a supplemental claim
within 1 year after a decision from the Court.
Sec. 2(m). Definition of award or increased award for purposes of
provisions relating to commencement of period of payment.
Section 2(m) of the Committee bill would make a technical
conforming change to section 5111 of title 38, U.S.C.
Background. Section 5111 of title 38, U.S.C., sets forth
the criteria for when payment of monetary benefits will begin
based on a successful claim, including a reopened claim.
Committee Bill. Section 2(m) of the Committee bill would
make a technical change by inserting ``supplemental claim''
rather than ``reopened,'' because all claims other than
original claims would be called supplemental claims under the
new appeals system.
Sec. 2(n). Modification of limitation on fees allowable for
representation.
Section 2(n) of the Committee bill would amend section 5904
of title 38, U.S.C., to allow paid representation after VA's
initial decision on a claim for benefits.
Background. Under section 5904 of title 38, U.S.C., an
attorney generally may not charge a fee for services provided
in connection with a claim for VA benefits until the claimant
files a notice of disagreement appealing VA's decision on the
claim.
Committee Bill. Section 2(n) of the Committee bill would
amend section 5904 of title 38, U.S.C., to provide that a fee
could not be charged until after the claimant is provided
notice of the agency of original jurisdiction's initial
decision on the claim.
Sec. 2(o). Clarification of Board of Veterans' Appeals referral
requirements after order for reconsideration of decisions.
Section 2(o) of the Committee bill would make a technical
conforming change to section 7103 of title 38, U.S.C.
Background. Section 7103 of title 38, U.S.C., provides that
a decision of the Board is final unless the Chairman of the
Board orders reconsideration of the decision.
Committee Bill. Section 2(o) of the Committee bill would
make a technical conforming change to section 7103 of title 38,
U.S.C., by changing the word ``heard'' to ``decided'' in two
places.
Sec. 2(p). Conforming amendment relating to readjudication.
Section 2(p) of the Committee bill would make a technical
conforming change to section 7104 of title 38, U.S.C.
Background. Section 7104 of title 38, U.S.C., outlines the
jurisdiction of the Board.
Committee Bill. Section 2(p) of the Committee bill would
make a technical conforming change to section 7104(b) of title
38, U.S.C., by changing the word ``reopened'' to
``readjudicated.''
Sec. 2(q). Modification of procedures for appeals to Board of Veterans'
Appeals.
Section 2(q) of the Committee bill would amend section 7105
of title 38, U.S.C., to modify the procedures for appealing to
the Board, including eliminating several steps from the current
process.
Background. Under section 7105 of title 38, U.S.C.,
appellate review of an agency of original jurisdiction decision
is initiated by filing a notice of disagreement within 1 year
from mailing of notice of the initial determination and the
appeal is completed by filing a substantive appeal after VA
issues a statement of the case. The notice of disagreement must
be filed with the regional office. After the notice of
disagreement is filed, the agency of original jurisdiction is
required to take such development or review action as it deems
proper and, if those actions do not resolve the disagreement
(by granting the benefit or withdrawal of the appeal), the
regional office prepares the statement of the case. If any
evidence is submitted by the appellant with or after a
substantive appeal, the Board may review the evidence in the
first instance unless the appellant requests review by the
regional office. Section 7105 of title 38, U.S.C., further
provides that, if a notice of disagreement is not filed in
accordance with chapter 38, U.S.C., within the required
timeframe, the decision will become final and will not be
reopened or allowed except pursuant to regulations that are not
inconsistent with title 38, U.S.C.
The draft legislation submitted to Congress by VA would
require the appellant to identity in the notice of disagreement
the specific determination with which the appellant disagrees
and would authorize the Board to dismiss an appeal that fails
to do so, but the draft did not specify whether an appellant
would have an opportunity to clarify or correct the information
listed in the notice of disagreement after it has been filed.
Stakeholders have expressed concern that an appeal could be
dismissed without giving an appellant the opportunity to cure
any deficiency in the notice of disagreement. For example, in
testimony provided for a May 2, 2017, hearing before the House
Committee on Veterans' Affairs regarding the companion bill to
S. 1024, Vietnam Veterans of America stated:
If a veteran files a proper [notice of disagreement],
but VA needs additional clarification, VA should
request clarification and not ``dismiss'' the appeal.
By filing a [notice of disagreement], clearly the
veteran disagrees with something in the initial
decision; policies should be implemented to assist the
veteran in completing his appeal, not end it.
Committee Bill. Section 2(q) of the Committee bill would
rewrite section 7105 of title 38, U.S.C., to eliminate the
requirements for a substantive appeal and statement of the
case. It would also eliminate the requirement for the agency of
original jurisdiction to take development or review action
following the filing of a notice of disagreement and delete the
provision regarding the Board considering evidence in the first
instance.
Specifically, section 2(q) of the Committee bill would
strike from subsection 7105(a) of title 38, U.S.C., the
requirement that an appellant file a substantive appeal after a
statement of the case is furnished and would provide that
appellate review will be initiated by filing a notice of
disagreement in the form prescribed by the Secretary.
Section 7105(b) of title 38, U.S.C., as rewritten by
section 2(q) of the Committee bill, would provide that a notice
of disagreement shall be filed within 1 year from the date of
mailing of notice of the decision of the agency of original
jurisdiction pursuant to section 5104, new section 5104B, or
revised section 5108 of title 38, U.S.C.
Section 7105(b) of title 38, U.S.C., would further provide
that the notice of disagreement shall be in writing and shall
identify the specific determination with which the claimant
disagrees. The notice of disagreement must be filed with the
Board and must specify if the claimant requests a hearing
before the Board, which will include an opportunity to submit
evidence; an opportunity to submit additional evidence without
a hearing; or a review by the Board without a hearing and
without submission of evidence.
In light of stakeholder input, section 7105(b) of title 38,
U.S.C., as rewritten by section 2(q) of the Committee bill,
would provide that VA shall develop a policy to permit a
claimant to modify the information identified in the notice of
disagreement after it has been filed.
Section 7105(c) of title 38, U.S.C., as rewritten by
section 2(q) of the Committee bill, would provide that, if a
notice of disagreement is not filed in accordance with title
38, U.S.C., within the required time, the decision of the
agency of original jurisdiction will become final and the claim
will not thereafter be readjudicated or allowed except, in the
case of a readjudication or allowance pursuant to higher-level
review that was requested in accordance with section 5104B of
title 38, U.S.C., as added by section 2(g) of the Committee
bill; as may otherwise be provided in section 5108 of title 38,
U.S.C.; or as may otherwise be provided in regulations
consistent with title 38, U.S.C.
Section 7105(d) of title 38, U.S.C., as rewritten by
section 2(q) of the Committee bill, also would provide that the
Board may dismiss any appeal that fails to identify the
specific determination with which the claimant disagrees.
Sec. 2(r). Modification of procedures and requirements for
simultaneously contested claims.
Section 2(r) of the Committee bill would make conforming
changes to section 7105A of title 38, U.S.C.
Background. Section 7105A of title 38, U.S.C., outlines the
procedures for appeals with respect to simultaneously contested
claims.
Committee Bill. Section 2(r) of the Committee bill would
make conforming technical amendments to section 7105A of title
38, U.S.C., to reflect the steps of the appeals process that
would be eliminated by section 2(q) of the Committee bill.
Sec. 2(s). Repeal of procedures for administrative appeals.
Section 2(s) of the Committee bill would delete an obsolete
provision from title 38, U.S.C.
Background. Section 7106 of title 38, U.S.C., outlines the
process for an administrative appeal, a process that is not
currently utilized by VA.
Committee Bill. Section 2(s) of the Committee bill would
delete section 7106 of title 38, U.S.C., the obsolete provision
regarding administrative appeals.
Sec. 2(t). Modifications relating to appeals; dockets; hearings.
Section 2(t) of the Committee bill would amend section 7107
of title 38, U.S.C., to outline the dockets that would be used
by the Board under the new appeals system.
Background. Under section 7107 of title 38, U.S.C., each
case received at the Board is generally considered in docket
order. A hearing before the Board may be provided in-person at
the Board's principal office in Washington, DC; in-person at a
regional office; or through video conferencing at a regional
office.
The proposed legislation drafted by VA would create two
separate dockets to be used by the Board under the new appeals
system, one called the hearing option docket and the other the
non-hearing option docket. Under VA's proposal, the Board would
place on the hearing docket cases in which an appellant
requests a hearing, as well as cases in which the appellant
wishes to submit evidence and does not wish to have a hearing.
VA proposed to use the other docket for cases with no hearing
request and no new evidence, which according to VA would allow
the Board to provide feedback to the regional offices regarding
cases that were decided by the Board on the same evidentiary
record as the regional office decision.
However, testimony from the Committee's May 17, 2017,
hearing reflects that there is no support among stakeholders
for placing on the hearing option docket cases in which no
hearing is requested but the appellant wishes to submit
evidence. For example, Disabled American Veterans testified
that, under VA's proposal, ``veterans who submit new evidence,
but do not request a hearing, could be forced to wait months or
even years behind veterans who request a hearing.'' In
addition, Military Officers Association of America provided
this input:
The VA has expressed concerns that including claimants
with additional evidence amongst those without
additional evidence on the same docket would confuse
the ``feedback loop,'' but we believe this is
manageable. The feedback loop permits the [B]oard to
provide input to the [agency of original jurisdiction]
regarding errors the [agency of original jurisdiction]
committed in the original adjudication of the claim.
There appears to be no reason, however, the Board could
not simply exclude the claims with additional evidence
from the feedback loop and still provide very useful
feedback to the [agency of original jurisdiction] from
the remaining claims.
Additionally, in testimony provided for a May 2, 2017,
hearing before the House Committee on Veterans' Affairs
regarding the companion bill to S. 1024, Vietnam Veterans of
America stated:
[Vietnam Veterans of America] believes veterans that do
not want a hearing, but wish to submit additional
evidence should not be required to choose the hearing
docket. Again, the bill is penalizing a veteran for
exercising his right to add evidence to the record.
[Vietnam Veterans of America] believes veterans wishing
to only add additional evidence should be able to
choose the non-hearing docket.
Stakeholders also raised concerns that appellants should be
able to change dockets after the initial selection. For
example, the National Organization of Veterans' Advocates
provided this testimony for the Committee's May 17, 2017,
hearing:
It should be made clear that a veteran can move into
the non-hearing docket without penalty--with the same
or more favorable docket number--if he determines he no
longer wants a hearing after the initial request.
Committee Bill. In light of the feedback noted above, the
Committee bill would permit VA to create a third docket for
cases in which evidence is submitted but no hearing is
requested or to include these cases on a docket with cases in
which no evidence is submitted and no hearing takes place, but
it would not permit VA to include those cases on the hearing
docket. Specifically, section 2(t) of the Committee bill would
amend section 7107(a) of title 38, U.S.C., to provide that the
Board will maintain at least two separate dockets and may not
maintain more than two unless the Board notifies the Senate and
House Committees on Veterans' Affairs. The Board may assign to
each docket such cases as the Board considers appropriate,
except that the Board may not assign to the docket for cases in
which a Board hearing is requested any cases where there is no
request for a hearing. It is the view of the Committee that the
Board should separately track outcomes of cases in which no
hearing takes place and no evidence is submitted, in order to
provide appropriate feedback to the regional offices.
Section 2(t) of the Committee bill would further amend
section 7107(a) of title 38, U.S.C., to provide that each case
before the Board will be decided in regular order according to
its respective place on one of the dockets, unless it is
advanced on the docket under section 7107(b) of title 38,
U.S.C., as amended by this section of the Committee bill.
Section 2(t) of the Committee bill would amend section
7107(b) of title 38, U.S.C., to provide that, as under current
law, a case on any docket may be advanced for cause shown. A
motion to advance the case may be granted only if the case
involves interpretation of law of general application affecting
other veterans; the appellant is seriously ill or under severe
financial hardship; or other sufficient cause is shown.
Section 2(t) of the Committee bill would amend section
7107(c) of title 38, U.S.C., to provide that, if a Board
hearing is requested, it will be provided either at the Board's
principal location in Washington, DC, or through video
conferencing. In-person field hearings at the regional offices
would no longer be an option. Upon notification of a hearing in
Washington, DC, the appellant may request a video conference
hearing instead and the Board must grant that request. Upon
notification of a video conference hearing, the appellant may
request a hearing in Washington, DC, instead and the Board must
grant that request.
Section 2(t) of the Committee bill would amend section
7107(d) of title 38, U.S.C., to provide that nothing in revised
section 7107 of title 38, U.S.C., shall be construed to
preclude the screening of cases for purposes of determining the
adequacy of the record for decisional purposes or development
of a record found to be inadequate.
In light of stakeholder input, section 2(t) of the
Committee bill would amend section 7107(e) of title 38, U.S.C.,
to provide that VA shall develop and implement a policy
allowing an appellant to move his or her case from one docket
to another at the Board.
Sec. 2(u). Repeal of certain authority for independent medical
opinions.
Section 2(u) of the Committee bill would repeal section
7109 of title 38, U.S.C., which authorizes the Board to obtain
independent medical opinions.
Background. Under section 7109 of title 38, U.S.C., the
Board may obtain an independent medical opinion if warranted in
a particular case.
Committee Bill. Section 2(u) of the Committee bill would
delete section 7109 of title 38, U.S.C., removing the Board's
authority to request independent medical opinions, other than
as outlined in section 5109 of title 38, U.S.C., as amended by
section 2(j) of the Committee bill.
Sec. 2(v). Clarification of procedures for review of decisions on
grounds of clear and unmistakable error.
Section 2(v) of the Committee bill would make a technical
conforming change to section 7111 of title 38, U.S.C.
Background. Section 7111 of title 38, U.S.C., provides that
a decision of the Board is subject to revision based on clear
and unmistakable error.
Committee Bill. Section 2(v) of the Committee bill would
make a technical conforming change to section 7111 of title 38,
U.S.C.
Sec. 2(w). Evidentiary record before Board of Veterans' Appeals.
Section 2(w) of the Committee bill would add a new section
7113 to title 38, U.S.C., outlining the evidentiary record that
will be considered by the Board and would amend section 7104 of
title 38, U.S.C., to require the Board to note in its decision
if evidence was not considered as a result of new section 7113
of title 38, U.S.C.
Background. Generally, under section 20.1304 of title 38,
Code of Federal Regulations, an appellant is notified that he
or she may submit evidence to the Board during the 90-day
period following the appeal being certified to the Board. An
appellant also may submit evidence outside that window if good
cause is shown; may submit evidence during or in certain
circumstances after a hearing before the Board; and may submit
evidence in response to evidence obtained by the Board.
Under section 7104(d) of title 38, U.S.C., each decision of
the Board is required to include a written statement of the
Board's findings and conclusions as well as the reasons or
bases for the Board's findings and conclusions.
Committee Bill. Section 2(w) of the Committee bill would
add a new section 7113 to title 38, U.S.C., providing in
subsection (a) that, if a hearing before the Board is not
requested in the notice of disagreement and no request was made
to submit evidence, the evidentiary record before the Board
will be limited to the evidence of record at the time of the
decision of the agency of original jurisdiction on appeal.
Subsection (b) of new section 7113 of title 38, U.S.C.,
would provide that, for cases in which a hearing is requested
in the notice of disagreement, the evidentiary record before
the Board will be limited to the evidence of record at the time
of the decision of the agency of original jurisdiction on
appeal. However, the record will also include evidence
submitted by the appellant and his or her representative at the
Board hearing and evidence submitted by the appellant and his
or her representative within 90 days following the Board
hearing.
Subsection (c) of new section 7113 of title 38, U.S.C.,
would provide that, for cases in which a hearing is not
requested but the appellant requested an opportunity to submit
evidence, the evidentiary record before the Board will include
evidence submitted by the appellant and his or her
representative with the notice of disagreement and evidence
submitted by the appellant and his or her representative within
90 days following receipt of the notice of disagreement.
Section 2(w) of the Committee bill also would amend section
7104(d) of title 38, U.S.C., to provide that the Board in its
decision must include a general statement reflecting whether
evidence was not considered in making the decision because it
was received at a time not permitted under new section 7113 of
title 38, U.S.C., and noting the options available for having
the evidence considered by VA.
The Committee stresses that limiting the windows for
submitting evidence is in no way meant to alter the veteran-
friendly nature of the VA claims and appeals process. The
Committee intends and expects that VA will develop robust
policies for addressing evidence submitted during timeframes
not contemplated by the new appeals framework and will ensure
that appellants are made fully aware of what actions they would
need to take to have that evidence considered by VA
adjudicators. The Committee, in part through the reporting
requirements in section 5(1)(T) of the Committee bill, intends
to closely monitor VA's actions in response to evidence that
arrives during incorrect timeframes to determine if additional
changes to this law are required to ensure it is being
implemented in a veteran-friendly manner.
Sec. 2(x). Applicability.
Section 2(x) of the Committee bill outlines the timeline
and requirements in order for the new appeals system to go into
effect and which cases would be handled under the new appeals
system.
Background. On March 23, 2017, GAO released a report--
entitled VA Disability Benefits: Additional Planning Would
Enhance Efforts to Improve the Timeliness of Appeals
Decisions--on VA's efforts to improve timeliness for resolving
appeals relating to disability claims, including the proposal
put forward in 2016 to comprehensively reform the disability
claims appeals process and VA's plans to implement a new
appeals system if that proposal is enacted. GAO found that VA
does not have data to be able to identify the root cause of
delays under the current appeals process; it is not clear if VA
will be able to determine whether a new appeals process reduces
``churning'' of cases between different levels of review at VA,
which VA believes is a significant problem with the current
process; GAO believes pilot programs to test the concepts
involved in appeals reform would help detect and correct
problems with the new process before it is rolled out
nationally; there are inadequacies in VA's plans for
implementing a new appeals process, for upgrading information
technology systems, and for hiring more staff; and VA does not
have a good plan for how it would measure whether a new appeals
system is a success. Based on all of those findings, GAO
believes that VA risks undermining the efficiencies and goals
of the planned reforms.
Committee Bill. Section 2(x)(1) of the Committee bill, in a
freestanding provision, would provide that the changes made by
section 2 of the Committee bill shall apply to claims for which
a notice of decision is provided by VA on or after the later of
540 days after enactment and 30 days after VA submits to
Congress a certification that the Secretary confirms, without
delegation, that VA has the resources, personnel, office space,
procedures, and information technology required to carry out
the new appeals system and to timely address legacy appeals and
appeals under the new system. The certification must include a
summary of the expected performance outcomes with respect to
legacy appeals that the Secretary used in making that
certification and a comparison of those expected outcomes to
the performance outcomes prior to the new appeals system taking
effect.
Section 2(x)(2) of the Committee bill would provide that,
in determining whether and when to make that certification, VA
shall collaborate with, partner with, and give weight to the
advice of veterans organizations and such other stakeholders as
the Secretary considers appropriate.
Section 2(x)(3) of the Committee bill would provide that VA
may apply the new appeals system to claims that receive a
decision after enactment of the bill but before the effective
date of the new system, if the claimant elects to subject the
claim to the new system.
Section 2(x)(4) of the Committee bill would provide that VA
may begin implementation of the new appeals system in phases
beginning on the effective date of the new system.
Section 2(x)(5) of the Committee bill would provide that,
for legacy claims, claimants who receive a statement of the
case or supplemental statement of the case after the effective
date of the new system may elect to participate in the new
system.
Section 2(x)(6) of the Committee bill would provide that VA
would be required to publish in the Federal Register the
effective date of the new system.
By providing VA with the authority to phase in the new
appeals system and to delay the effective date of the new
system until VA is fully prepared to begin parallel processing
under the new and legacy systems, it is the Committee's intent
to provide VA with tools to ensure a smooth roll out of the new
system and to ensure that legacy appeals will not be negatively
impacted.
It is also the Committee's intent that, in making the
determination when and whether to submit the required
certification, VA collaborate with all of the veterans
organizations and other stakeholders that participated in
crafting the new appeals framework.
Sec. 2(y). Rule of construction.
Section 2(y) of the Committee bill would clarify that this
bill is not intended to limit the ability of individuals to
seek revision of a VA decision based on clear and unmistakable
error.
Background. Under sections 5109A and 7111 of title 38,
U.S.C., individuals may seek revision of a VA decision on the
grounds of clear and unmistakable error.
Committee Bill. Section 2(y) of the Committee bill would
provide that nothing in section 2 of the Committee bill shall
be construed to limit the ability of a claimant to request a
revision of a decision based on clear and unmistakable error
pursuant to section 5109A or 7111 of title 38, U.S.C.
Sec. 3. Comprehensive plan for processing of legacy appeals and
implementing new appeals system.
Section 3 of the Committee bill, in a freestanding
provision, would require VA to submit to Congress a
comprehensive plan for processing legacy appeals and
implementing the new appeals system and to provide periodic
reports on VA's progress in carrying out that plan.
Background. On March 23, 2017, GAO released a report--
entitled VA Disability Benefits: Additional Planning Would
Enhance Efforts to Improve the Timeliness of Appeals
Decisions--on VA's efforts to improve timeliness for resolving
appeals relating to disability claims, including the proposal
put forward in 2016 to comprehensively reform the disability
claims appeals process and VA's plans to implement a new
appeals system if that proposal is enacted. GAO found that VA
does not have data to be able to identify the root cause of
delays under the current appeals process; it is not clear if VA
will be able to determine whether a new appeals process reduces
``churning'' of cases between different levels of review at VA,
which VA believes is a significant problem with the current
process; GAO believes pilot programs to test the concepts
involved in appeals reform would help detect and correct
problems with the new process before it is rolled out
nationally; there are inadequacies in VA's plans for
implementing a new appeals process, for upgrading information
technology systems, and for hiring more staff; and VA does not
have an adequate plan for how it would measure whether a new
appeals system is a success. Based on all of those findings,
GAO believes that VA risks undermining the efficiencies and
goals of the planned reforms.
Consequently, GAO recommended that Congress require VA to
conduct pilot programs to test the concepts of appeals reform
before rolling out a new system; that VA should develop
detailed plans for recruiting, hiring, and training new
employees; that VA should develop a schedule for information
technology updates; that VA should conduct sensitivity analysis
on assumptions used in projecting productivity and staffing
needs under the proposed new appeals system; that VA should
develop a more detailed plan for monitoring implementation of a
new appeals system; and that VA should develop a plan to assess
whether the new appeals system is serving veterans better than
the existing appeals system.
Committee Bill. Section 3(a) of the Committee bill would
require VA, not later than 90 days after enactment, to submit
to Congress and GAO a comprehensive plan for processing legacy
appeals; implementing the new appeals system; timely
processing, under the new appeals system, supplemental claims,
requests for higher-level review, and appeals on any Board
docket and for monitoring the implementation of the new appeals
system, including metrics and goals to track the progress of
the implementation; to evaluate the efficiency and
effectiveness of the implementation; and to identify potential
issues relating to the implementation.
Section 3(b) of the Committee bill would require the plan
to, at a minimum, include:
1. Delineation of the total resource requirements of VBA
and the Board, disaggregated by resources required to implement
and administer the new appeals system and resources required to
address legacy appeals.
2. Delineation of the personnel requirements of VBA and the
Board, including staffing levels during the period in which VBA
and the Board are concurrently processing legacy appeals and
appeals under the new appeals system and the period during
which VBA and the Board are no longer processing any legacy
appeals.
3. Identification of the legal authorities under which VBA
or the Board may hire additional employees to conduct that
concurrent processing and remove employees who are no longer
required by VBA or the Board once VBA and the Board are no
longer processing any legacy appeals.
4. An estimate of the amount of time VBA and the Board will
require to hire additional employees once funding has been made
available, including a comparison of such estimate and the
historical average time required by VBA and the Board to hire
additional employees.
5. A description of the amount of training and experience
that will be required of individuals conducting higher-level
reviews.
6. An estimate of the percentage of higher-level
adjudicators who will be former Decision Review Officers or
have comparable experience to Decision Review Officers.
7. A description of the functions that would be performed
by Decision Review Officers with respect to the new appeals
system.
8. Identification of and a timeline for any training that
may be required as a result of hiring new employees to carry
out the new appeals system or to process legacy appeals and any
re-training of existing employees that may be required.
9. Identification of the costs to VA for the required
training and any additional training staff and any additional
training facilities that will be required.
10. A description of the modifications to the information
technology systems of VBA and the Board required to carry out
the new appeals system, including cost estimates and a timeline
for making the modifications.
11. An estimate of the office space VBA and the Board will
require during and after concurrent processing, including an
estimate of the amount of time VBA and the Board will require
to acquire any additional office space; the historical average
time required by VBA and the Board to acquire new office space;
and a plan for using telework to accommodate staff exceeding
available office space, including how VBA and the Board will
provide training and oversight with respect to such
teleworking.
12. Projections for the productivity of individual
employees at VBA and the Board in carrying out tasks relating
to the processing of legacy appeals and appeals under the new
appeals system, taking into account the experience level of new
employees and the enhanced notice required by this bill.
13. An outline of the outreach the Secretary expects to
conduct to inform veterans, families of veterans, survivors of
veterans, veterans service organizations, military service
organizations, Congressional caseworkers, advocates for
veterans, and such other stakeholders as the Secretary
considers appropriate about the new appeals system, including a
description of the resources required to conduct such outreach
and timelines for conducting such outreach.
14. Timelines for updating any policy guidance, websites,
and official forms that may be necessary to carry out the new
appeals system, including identification of which offices and
entities will be involved in efforts relating to such updating
and historical information about how long similar update
efforts have taken.
15. A timeline, including interim milestones, for
promulgating such regulations as may be necessary to carry out
the new appeals system and a comparison with historical
averages for time required to promulgate regulations of similar
complexity and scope.
16. An outline of the circumstances under which claimants
with pending legacy appeals would be authorized to have their
appeals reviewed under the new appeals system.
17. A delineation of the key goals and milestones for
reducing the number of legacy appeals, including the expected
number of appeals, remands, and hearing requests at VBA and the
Board each year until there are no longer any legacy appeals.
18. A description of each risk factor associated with each
element of the plan and a contingency plan to minimize each
such risk.
Section 3(c) of the Committee bill would require GAO, no
later than 90 days after receiving that plan, to assess the
plan and notify Congress of its findings, including an
assessment of whether the plan comports with sound planning
practices, identification of any gaps in the plan, and such
recommendations as considered appropriate.
Section 3(d) of the Committee bill would require VA, not
later than 90 days after submitting that plan and every 90 days
thereafter until the new system takes effect, and every 180
days thereafter for 7 years, to submit to Congress and GAO a
report on VA's progress in carrying out the plan and what steps
VA has taken to address any recommendations formulated by GAO.
Section 3(e) of the Committee bill would require VA to make
available on a VA website the comprehensive plan and the
periodic progress reports.
Sec. 4. Programs to test assumptions relied on in development of
comprehensive plan for processing of legacy appeals and
supporting new appeals system.
Section 4 of the Committee bill, in a freestanding
provision, would authorize VA to carry out programs to test any
assumptions relied upon in developing the comprehensive plan
and to test the feasibility and advisability of any facet of
the new appeals system.
Background. As outlined above, in its March 2017 report,
GAO recommended that Congress require VA to conduct pilot
programs to test the concepts of appeals reform before rolling
out an entirely new appeals system. For example, GAO stated
that ``VA's plans run counter to sound redesign practices that
suggest pilot testing the process changes in a more limited
fashion before full implementation, in order to manage risks
and help ensure successful implementation of significant
institutional change.'' GAO further stated that ``without pilot
testing VA may experience challenges and setbacks on a broader
scale, which could undermine planned efficiencies and other
intended outcomes.''
Committee Bill. Section 4(a) of the Committee bill would
provide that VA may carry out such programs as the Secretary
considers appropriate to test any assumptions relied upon in
developing the comprehensive plan and to test the feasibility
and advisability of any facet of the new appeals system. VA
would be required to notify Congress if changes to the new
appeals system are needed in light of any such program.
Section 4(b) of the Committee bill would provide that the
authority to carry out programs would include authority to
conduct the fully developed appeals program as outlined in
S. 933.
Section 4(c) of the Committee bill would provide that VA
may not carry out any such programs after the new appeals
system takes effect.
Sec. 5. Periodic publication of metrics relating to processing of
appeals by Department of Veterans Affairs.
Section 5 of the Committee bill, in a freestanding
provision, would require VA periodically to publish on its
website data regarding processing legacy appeals and appeals in
the new system.
Background. As outlined above, the March 2017 GAO report
outlined GAO's findings that VA does not have data to be able
to identify the root cause of delays under the current appeals
process and it is not clear if VA will be able to determine
whether a new appeals process reduces ``churning'' of cases
between different levels of review at VA, which VA believes is
a significant problem with the current process. GAO recommended
that VA should develop a more detailed plan for monitoring
implementation of a new appeals system and that VA should
develop a plan to assess whether the new appeals system is
serving veterans better than the existing appeals system.
Committee Bill. Section 5 of the Committee bill would
require VA to periodically publish on a VA website the
following:
With respect to appeals under the new appeals system:
1. For VBA and, to the extent practicable, each regional
office, the number of supplemental claims and requests for
higher-level review that are pending.
2. The number of appeals on any Board docket.
3. The average duration for processing claims and
supplemental claims, disaggregated by regional office.
4. The average duration for processing requests for higher-
level review, disaggregated by regional office.
5. The average number of days that appeals are pending on a
docket of the Board, disaggregated by appeals that include a
request for a hearing, appeals that do not include a request
for a hearing but do include submittal of evidence, and appeals
that do not include a request for a hearing and do not include
submittal of evidence.
6. With respect to the policy VA develops and implements to
allow appellants to switch Board dockets, the number of cases
moved from one docket to another; the average time cases were
pending prior to moving from one docket to another; and the
average time to adjudicate the cases after so moving.
7. The total number of remands to obtain advisory medical
opinions.
8. The average number of days between the date the Board
remands a claim to obtain an advisory medical opinion and the
advisory medical opinion is obtained.
9. The average number of days between the date the Board
remands a claim to obtain an advisory medical opinion and the
agency of original jurisdiction issues a decision taking that
advisory opinion into account.
10. The number of appeals that are granted, the number of
appeals that are remanded, and the number of appeals that are
denied by the Board disaggregated by docket.
11. The number of claimants each year that take action to
protect their effective date, disaggregated by the status of
the claimants taking the actions, such as whether the claimant
is represented by a veterans service organization, the claimant
is represented by an attorney, or the claimant is taking such
action pro se.
12. The total number of times on average each claimant
files to protect their effective date, disaggregated by the
action taken.
13. The average duration, from the filing of an initial
claim until the claim is resolved and claimants no longer take
any action to protect their effective date of claims under the
new appeals system, excluding legacy claims that opt in to the
new appeals system and of legacy claims that opt in to the new
appeals system.
14. How frequently an action taken within 1 year to protect
an effective date leads to additional grant of benefits,
disaggregated by action taken.
15. The average of how long it takes to complete each
segment of the claims process while claimants are protecting
the effective date, disaggregated by the time waiting for the
claimant to take an action and the time waiting for VA to take
an action.
16. The number and the average amount of retroactive awards
of benefits as a result of protected effective dates,
disaggregated by action taken.
17. The average number of times claimants submit claims
with respect to the same condition, such as an initial claim
and a supplemental claim.
18. The number of cases each year in which a claimant
inappropriately tried to take simultaneous actions, such as
filing a supplemental claim while a higher-level review is
pending, what actions VA took in response, and how long it took
on average to take those actions.
19. In the case that VA develops and implements a policy to
allow claimants to switch options, the number of actions
withdrawn and new actions taken pursuant to such policy.
20. The number of times VA received evidence relating to an
appeal or higher-level review at a time not authorized under
the new appeals system, disaggregated by actions taken by VA to
deal with the evidence and how long on average it took to take
those actions.
21. The number of errors committed by VA in carrying out
the duty to assist that were identified by higher-level review
and by the Board, disaggregated by type of error, such as
errors relating to private records and inadequate examinations,
and a comparison with errors committed by VA in carrying out
such duty with respect to legacy appeals.
22. An assessment of the productivity of employees at the
regional offices and at the Board, disaggregated by level of
experience of the employees.
23. The percentage of cases that are decided within the
goals set by VA, disaggregated by supplemental claims, higher-
level reviews, and each Board docket. If VA has not set a goal,
VA would report the number of cases decided within 1 year, 2
years, 3 years, and more than 3 years.
24. The percentage of decisions that are overturned in
whole or in part by a higher-level adjudicator, that are upheld
by a higher-level adjudicator, and that are returned by a
higher-level adjudicator for correction of an error.
25. How frequently VA readjudicates a claim pursuant to
section 5108 of title 38, U.S.C., as amended by this bill and
how frequently the readjudication results in an award of
benefits.
26. If the Board screens cases pursuant to section 7107(d)
of title 38, U.S.C., as rewritten by the bill, a description of
the way in which the cases are screened and the purpose for
which they are screened; a description of the effect screening
had on the timeliness of Board decisions and the inventory of
cases at the Board; and the type and frequency of development
errors detected through the screening.
With respect to the processing of legacy appeals:
1. The average duration of each segment of the appeals
process, disaggregated by periods in which VA is waiting for a
claimant to take an action and periods in which the claimant is
waiting for VA to take an action.
2. The frequency by which appeals lead to additional grant
of benefits, disaggregated by whether the additional benefits
are a result of additional evidence added after the initial
decision.
3. The number and average amount of retroactive awards of
benefits resulting from an appeal.
4. The average duration from filing a legacy claim until
all appeals and remands relating to such legacy claim are
completed.
5. The average number of times claimants submit different
claims with respect to the same condition, such as an initial
claim, new and material evidence, or a claim for an increase in
benefits.
6. An assessment of the productivity of employees at the
regional offices and at the Board, disaggregated by level of
experience of the employees.
7. The average number of days the duration of an appeal is
extended because VA secured or attempted to secure an advisory
medical opinion.
8. How frequently claims are reopened pursuant to section
5108 of title 38, U.S.C., as in effect prior to the effective
date of the new appeals system and how frequently reopening
results in an award of benefits.
With respect to the processing of legacy appeals that opt
in to the new appeals system:
1. The cumulative number of such legacy appeals.
2. The portion of work in the new appeals system
attributable to those legacy appeals.
3. The average period such legacy appeals were pending
before opting in to the new appeals system and the average
period required to adjudicate them after opting in with respect
to claims at a regional office, disaggregated by supplemental
claims and requests for higher-level review and with respect to
appeals, disaggregated by Board docket.
The Committee is of the opinion that this information will
be useful in gauging whether veterans, their families, and
their survivors are overall receiving satisfactory answers on
their cases in a more timely manner than under the legacy
appeals system. Also, this information should assist VA,
Congress, and stakeholders in identifying any refinements that
are necessary to the new system. With regard to legacy appeals,
the Committee recognizes that VA has not tracked this
information in the past. It is the Committee's intent that, in
processing the nearly 500,000 legacy appeals that are currently
pending and any additional legacy appeals that are filed prior
to the effective date of the new appeals system, VA will track
this data in order to allow for a reasonable comparison between
the performance of the new appeals system and the legacy
system. The Committee does not intend for VA to attempt to re-
create this data with regard to legacy appeals that previously
have been completed.
Sec. 6. Definitions.
Section 6 of the Committee bill, in a freestanding
provision, would define several terms for purposes of this
bill.
Background. The Committee bill uses several terms that are
not defined in title 38, U.S.C.
Committee Bill. Section 6 of the Committee bill would
define ``claimant'' as having the meaning given that term in
section 5100 of title 38, U.S.C.; would define ``legacy claim''
as a claim that was submitted to VA for a benefit under a law
administered by VA and for which notice of a decision was
provided before the applicability date set forth in section
2(x) of the Committee bill; and would define ``opt in'' as,
with respect to a legacy claim, that the claimant elects to
subject the claim to the new appeals system.
Committee Bill Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee, based on
information supplied by the Congressional Budget Office
(hereinafter, ``CBO''), estimates that enactment of the
Committee bill would, relative to current law, increase
discretionary spending by $2 million over 5 years. Enactment of
the Committee bill would not affect the budget of state, local,
or tribal governments.
The cost estimate provided by CBO, setting forth a detailed
breakdown of costs, follows:
Congressional Budget Office,
Washington, DC, July 5, 2017.
Hon. Johnny Isakson,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1024, 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,
Director.
Enclosure.
S. 1024--Veterans Appeals Improvement and Modernization Act of 2017
Summary: S. 1024 would modify the appeals process for
benefit claims at the Department of Veterans Affairs (VA) and
would require VA and the Government Accountability Office (GAO)
to produce several reports. CBO estimates that implementing
S. 1024 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 S. 1024 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
S. 1024 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA)
and would not affect the budgets of state, local, or tribal
governments.
Estimated cost to the Federal Government: The estimated
budgetary effect of S. 1024 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
S. 1024 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 3 years, with
some appeals taking more than 6 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 with 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 the
changes 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 S. 1024 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: S. 1024
contains no intergovernmental or private-sector mandates as
defined in UMRA and would not affect the budgets of state,
local, or tribal governments.
Previous CBO estimate: On May 19, 2017, CBO transmitted a
cost estimate for H.R. 2288, the Veterans Appeals Improvement
and Modernization Act of 2017, as ordered reported by the House
Committee on Veterans' Affairs on May 17, 2017. Each section of
S. 1024 is similar to the corresponding section of H.R. 2288
and the estimated costs of the two bills are identical.
Estimate prepared by: Federal Costs: Dwayne M. Wright;
Impact on State, Local, and Tribal Governments: Jon Sperl;
Impact on the Private Sector: Paige Piper/Bach.
Estimate approved by: Theresa Gullo, Assistant Director for
Budget Analysis.
Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee on Veterans'
Affairs has made an evaluation of the regulatory impact that
would be incurred in carrying out the Committee bill. The
Committee finds that the Committee bill would not entail any
regulation of individuals or businesses or result in any impact
on the personal privacy of any individuals and that the
paperwork resulting from enactment would be minimal.
Tabulation of Votes Cast in Committee
In compliance with paragraph 7(b) of rule XXVI of the
Standing Rules of the Senate, the following is a tabulation of
votes cast in person or by proxy by members of the Committee on
Veterans' Affairs at its June 28, 2017, meeting: The Committee
bill was ordered reported favorably by voice vote without
dissent.
Agency Report
On May 17, 2017, Jennifer S. Lee, M.D., Deputy Under
Secretary for Health for Policy and Services, Veterans Health
Administration, U.S. Department of Veterans Affairs, appeared
before the Committee on Veterans' Affairs and submitted
testimony on S. 1024 as well as other bills pending before the
Committee. An excerpt from that statement is reprinted below:
STATEMENT OF JENNIFER S. LEE, M.D., DEPUTY UNDER SECRETARY FOR HEALTH
FOR POLICY AND SERVICES, VETERANS HEALTH ADMINISTRATION, U.S.
DEPARTMENT OF VETERANS AFFAIRS
* * * * * * *
S. 1024, VETERANS APPEALS IMPROVEMENT AND MODERNIZATION
ACT OF 2017
Modernizing the appeals process is a top priority for VA.
It is more critical than ever that we continue to work together
to transform an appeals process that is failing Veterans. There
are currently over 470,000 appeals pending in VA, some 40
percent more than were pending only 5 years ago. Those Veterans
are waiting much too long for answers on their appeals.
Although Veterans wait an average of only 116 days for a
decision on VA disability compensation claims, they are waiting
an average of 3 years for their appeal to be resolved. Appeals
that go all the way to the Board of Veterans' Appeals (Board)
take even longer--an average of 6 years to resolve. A system
that can deliver an answer on an initial claim in 116 days, but
takes many years to resolve an appeal is a system that is not
working for Veterans. If appeals reform is not passed, these
already unacceptable wait times will only get worse.
S. 1024 would provide much-needed comprehensive reform for
the VA appeals process to ensure that Veterans receive a
timely, VA decision on their appeal. It would replace the
current, lengthy, complex, confusing VA appeals process with a
new appeals process that makes sense for Veterans, their
advocates, VA, and stakeholders. VA supports the intent of
S. 1024; however, we have some concerns with certain provisions
in S. 1024 as drafted, such as the provisions that would remove
finality from the process upon judicial review and require the
Secretary to certify that he has the resources necessary to
timely process appeals in the future. We look forward to
working with the Committee to address those concerns. The
Department stands committed to getting appeals reform
accomplished for Veterans this year.
The current VA appeal process, which is set in law, is
broken and provides Veterans a frustrating experience. In the
current process, appeals have no defined endpoint. Veterans and
VA adjudicators are instead engaged in continuous evidence
gathering and repeated re-adjudication of the same appeal. This
cycle of evidence gathering and re-adjudication means that
appeals often churn for years between the Board and the agency
of original jurisdiction (AOJ) to meet complex legal
requirements, with little to no benefit flowing to the Veteran.
The multiple layers of adjudication built into the current
appeals process exacerbate delays even more. Jurisdiction is
also split between the Board and the AOJ, meaning that Veterans
often don't fully understand where in VA their appeal is
located any given time. All of this has resulted in a system
that is complicated, inefficient, ineffective, and confusing.
Due to this complex and inefficient process, Veterans wait much
too long for final resolution of their appeal.
Without significant legislative reform, wait times and the
cost to taxpayers will only increase. It was this stark reality
that led to VA's unprecedented level of collaboration with
stakeholders to design a modernized appeals process. The new
appeals process contained in S. 1024 would provide Veterans an
appeals decision that is timely, transparent, and fair. The new
process is not just a VA idea. It is the product of over a year
of collaboration between the Board, Veteran Benefits
Administration, Veteran Service Organizations, the private bar,
and other stakeholders. The new appeals process we designed is
simpler and easier for Veterans to understand. It provides a
streamlined process focused on early resolution of appeals, and
generating long-term saving for taxpayers. VA is grateful to
all of the stakeholders for their contributions of time,
energy, and expertise in this effort.
S. 1024 would empower Veterans by providing them with the
ability to tailor the process to meet their individual needs--
choice that is not available in the current appeals process.
Veterans in the new process can pursue one of three different
lanes. One lane would be for review of the same evidence by a
higher-level claims adjudicator at the AOJ. One lane would be
for submitting new and relevant evidence with a supplemental
claim at the AOJ, and one lane would allow Veterans to take
their appeal directly to a Veterans Law Judge at the Board. In
this last lane, the intermediate and duplicative steps
currently required by statute to receive Board review, such as
the Statement of the Case and the Substantive Appeal, would be
eliminated. Furthermore, hearing and non-hearing options at the
Board would be handled on separate dockets so these distinctly
different types of work can be managed more efficiently.
As a result of this new design, the AOJ would be the claims
adjudication agency within VA and the Board would be the
appeals agency. This design would remove the confusion caused
by the current process, in which a Veteran initiates an appeal
in the AOJ, but the appeal is really a years-long continuation
of the claim development process. It would ensure that all
claim development occurs in the context of a supplemental claim
filed with the AOJ, which the AOJ can quickly adjudicate,
rather than in an appeal.
Currently, VA has a statutory duty to assist the Veteran in
the development of a claim for benefits. This duty includes
obtaining relevant Federal records, obtaining other records
identified by the claimant, and providing a medical examination
in certain circumstances. The new design contains a mechanism
to correct any duty to assist errors by the AOJ. If the higher-
level claims adjudicator or Board discovers an error in the
duty to assist that occurred before the AOJ decision being
reviewed, the claim/appeal would be returned to the AOJ for
correction unless the claim/appeal could be granted in full.
However, the Secretary's duty to assist would not apply to the
lane in which a Veteran requests higher-level review by the AOJ
or review on appeal to the Board. The duty to assist would,
however, continue to apply whenever the Veteran initiated a new
claim or supplemental claim. Moreover, S. 1024 would require VA
to modify its claims decision notices to ensure they are
clearer and more detailed. This notice would help Veterans and
their advocates make informed choices as to which a review
option makes the most sense.
The disentanglement of processes achieved by S. 1024 would
be enabled by one crucial innovation. In order to make sure
that the Veteran fully understands the process and can adapt to
changed circumstances, a Veteran who is not fully satisfied
with the result of any lane would have 1 year to seek further
review while preserving an effective date for benefits based
upon the original filing date of the claim. For example, a
Veteran could go straight from an initial AOJ decision to an
appeal to the Board. If the Board decision was not favorable,
but helped the Veteran understand what evidence was needed to
support the claim, then the Veteran would have 1 year to submit
new and relevant evidence to the AOJ in a supplemental claim
without fearing an effective-date penalty for choosing to go to
the Board first. The robust effective date protections built
into the draft bill enhance Veterans' rights and ensure that
Veterans and their advocates cannot make a wrong turn in
navigating the new appeals process.
Beyond stopping the flow of appeals into the existing
broken system, S. 1024 provides opt-ins to allow as many
Veterans as possible to benefit from the streamlined features
of the new process. A claimant who receives a decision after
enactment and prior to the applicability date of the law could
elect to participate in the new process, which would give VA
discretion regarding whether to apply the new process to the
claimant. However, while subsection (x)(3) envisions the
possibility of processing individual claimants who opt-in under
the new system prior to the applicability date, as a practical
matter, VA cannot realistically offer the new system on a
piecemeal basis before the entire new system is ready, which in
turn depends on the certification date. Therefore, in practice,
only Veterans who receive notice of decision within the 1 year
period prior to the effective date of the law would be able to
opt-in. Veterans who received an earlier notice of decision
would not be able to submit a timely appeal into the new
process within 1 year of their decision. Also, a claimant who
receives a statement of the case or supplemental statement of
the case in a legacy appeal could elect to participate in the
new appeals system.
While VA strongly supports the fundamental features of the
new process outlined in S. 1024, we have concerns with some
aspects of the proposed legislation as presently drafted, as
discussed below.
VA opposes a substantive change that would make the
effective date protection afforded by the filing of a
supplemental claim within 1 year of a decision applicable to
supplemental claims filed within 1 year of a decision by the
United States Court of Appeals for Veterans Claims (CAVC). This
provision goes against an essential construct of the new
process, which encourages Veterans to stay within VA to achieve
the earliest resolution possible. It would be unfortunate to
eliminate sources of unnecessary churn in VA, only to create
new incentives for endless appeal at the CAVC. To the greatest
extent possible, judicial review should be for substantive
legal disagreements between a claimant and VA, not for record
development questions that can easily be obviated simply by
pursuing additional development and assistance in the
supplemental claim lane.
With regard to applicability and the proposed certification
of the readiness to carry out the new system by the Secretary,
the requirement that the Secretary submit a statement to
Congress that he has the resources necessary to timely operate
the system is problematic, given the annual budget cycle. While
VA will be prepared to implement the new system at the end of
the 18-month period prescribed in S. 1024 and shut off the flow
of appeals to the broken process, the Secretary cannot predict
the outcome of future budget cycles. Therefore, the Secretary
will only be able to make a certification regarding resources
available at the time of the certification and not into the
future.
Moreover, if S. 1024 was enacted with this provision, it
would create significant uncertainty in implementing the opt-in
component of the law. We note that S. 1024 provides VA
discretion to apply the new process to claimants who elect to
participate in the modernized appeals system at any time after
enactment and before the applicability date. The applicability
date in S. 1024 is necessarily indeterminate because it depends
upon when the Secretary will be able to certify under
subsection (x)(1) that VA has the resources it needs to operate
the modernized system; it is not possible to know when the 1
year period allowing claimants the functional ability to elect
begins. As previously noted, although S. 1024 does not set the
1 year period for opt-ins, current law provides that claimants
must submit a notice of disagreement within 1 year of a
decision, and it will not be administratively feasible to
provide claimants with the new system on a piecemeal basis
before the administrative and regulatory work necessary to
stand up the new system is complete. In order to provide
Veterans with meaningful choice in how their appeal is handled,
we must be able to inform them as to whether they will have the
option of appealing into the new system. We would be happy to
continue working with the Committee to discuss alternative
approaches to the applicability date of the law.
S. 1024 also adds notice requirements to higher-level
review and Board decisions, for the purpose of explaining
whether the claimant submitted evidence that was not
considered, and if so, what the claimant or appellant can do to
have that evidence considered. VA views this addition as
unnecessary, as a claimant who had elected either a higher-
level review or an appeal to the Board would have already
received notice addressing all lane options in the new process,
including restrictions on the submission of new evidence. They
would also be aware of the option to file a supplemental claim,
where they would have the opportunity to submit new evidence
for consideration by the AOJ. Additionally, the issue of how to
handle improperly submitted evidence is an administrative
matter that would best be determined by VA.
S. 1024 also includes reporting requirements that we
believe could be adjusted to be less onerous but still provide
valuable information to the Congress. We look forward to
working with the Committee to better shape these provisions in
a manner that achieves adequate protection for Veterans and
robust information for Congressional oversight, while at the
same time using administrative resources wisely.
VA stands ready to provide additional technical assistance
on several other aspects of the proposed legislation. We
appreciate any opportunity to work with Congress to further
refine this legislation.
Changes in Existing Law
In compliance with paragraph 12 of Rule XXVI of the
Standing Rules of the Senate, 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).
Title 38. Veterans' Benefits
* * * * * * *
Part I. General Provisions
* * * * * * *
Chapter 1. General
* * * * * * *
SEC. 101. DEFINITIONS
* * * * * * *
(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 a 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.
* * * * * * *
5104. Decisions and notices of decisions.
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.
5105. Joint applications for social security and dependency and
indemnity compensation.
* * * * * * *
[5108. Reopening disallowed claims.]
5108. Supplemental claims.
5109A. Revision of decisions on grounds of clear and unmistakable
error.
[5109B. Expedited treatment of remanded claims.]
5109B. Expedited treatment of returned and remanded 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) * * *
(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;
* * * * * * *
(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.
* * * * * * *
SEC. 5103A. DUTY TO ASSIST CLAIMANTS
* * * * * * *
(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 Secretary may
award the maximum benefit in accordance with this title based
on the evidence of record, 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 Secretary may award
the maximum benefit in accordance with this title based on the
evidence of record, 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.
(g) [(e)] Regulations.--The Secretary shall prescribe
regulations to carry out this section.
(h) [(f)] 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.
(i) [(g)] 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) * * *
[(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, 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 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 the same claim or same
issue contained within the 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 or an issue contained within
the claim.
(C) Nothing in this subsection shall prohibit a claimant
from taking different actions set forth in paragraph (1) with
respect to different claims or different issues contained
within a claim.
(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.
* * * * * * *
[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
(a) In General.--If new and relevant evidence is presented
or secured with respect to a supplemental claim, the Secretary
shall readjudicate the claim taking into consideration all of
the evidence of record.
(b) Duty to Assist.--(1) If a claimant, in connection with
a supplemental claim, reasonably identifies existing records,
whether or not in the custody of a Federal department or
agency, the Secretary shall assist the claimant in obtaining
the records in accordance with section 5103A of this title.
(2) Assistance under paragraph (1) shall not be predicated
upon a finding that new and relevant evidence has been
presented or secured.
SEC. 5109. INDEPENDENT MEDICAL OPINIONS
* * * * * * *
(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 RETURNED AND 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.
* * * * * * *
(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.
* * * * * * *
SEC. 5111. COMMENCEMENT OF PERIOD OF PAYMENT
* * * * * * *
(d) * * *
(1) an original [or reopened award] award or award
based on a supplemental claim; or
* * * * * * *
Chapter 57. Records and Investigations
* * * * * * *
Subchapter I. Records
SEC. 5701. CONFIDENTIAL NATURE OF CLAIMS
* * * * * * *
(b) * * *
(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.
* * * * * * *
Chapter 59. Agents and Attorneys
* * * * * * *
SEC. 5904. RECOGNITION OF AGENTS AND ATTORNEYS GENERALLY
* * * * * * *
(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.
* * * * * * *
Part V. Boards, Administrations, and Services
* * * * * * *
Chapter 71. Board of Veterans' Appeals
Sec.
7101. Composition of Board of Veterans' Appeals.
7101A. Members of Board: appointment; pay; performance review.
7102. Assignment of members of Board.
7103. Reconsideration; correction of obvious errors.
7104. Jurisdiction of the Board.
[7105. Filing of notice of disagreement and appeal.]
7105. Filing of appeal.
7105A. Simultaneously contested claims.
[7106. Administrative appeals.]
7107. Appeals: dockets; hearings.
7108. Rejection of applications.
[7109. Independent medical opinions.]
[7110. Repealed.]
7111. Revision of decisions on grounds of clear and unmistakable
error.
7112. Expedited treatment of remanded claims.
7113. Evidentiary record before the Board of Veterans' Appeals.
* * * * * * *
SEC. 7103. RECONSIDERATION; CORRECTION OF OBVIOUS ERRORS
* * * * * * *
(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.
* * * * * * *
SEC. 7104. JURISDICTION OF THE BOARD
* * * * * * *
(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.
* * * * * * *
(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
(3) [(2)] an order granting appropriate relief or
denying relief.
* * * * * * *
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.]
(b)(1)(A) Except in the case of simultaneously contested
claims, a 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 one-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 shall 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
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.]
(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--
(1) in the case of a readjudication or allowance
pursuant to a higher-level review that was requested in
accordance with section 5104B of this title;
(2) as may otherwise be provided by section 5108 of
this title; or
(3) as may otherwise be provided in such regulations
as are consistent 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.]
(d) The Board may dismiss any appeal which fails to
identify the specific determination with which the claimant
disagrees.
[(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.]
SEC. 7105A. SIMULTANEOUSLY CONTESTED CLAIMS
(a) * * *
[(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 paragraph are the following:
(i) Cases in which no Board hearing is requested.
(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 a Docket
That May Include a 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 shall
develop and implement a policy allowing an appellant to move
the appellant'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
* * * * * * *
(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].
* * * * * * *
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 a 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 his or
her representative, if any, at the Board hearing.
(B) Evidence submitted by the appellant and his or
her representative, 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 his or
her representative, if any, with the notice of
disagreement.
(B) Evidence submitted by the appellant and his or
her representative, if any, within 90 days following
receipt of the notice of disagreement.
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