[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 1024 Introduced in Senate (IS)]
<DOC>
115th CONGRESS
1st Session
S. 1024
To amend title 38, United States Code, to reform the rights and
processes relating to appeals of decisions regarding claims for
benefits under the laws administered by the Secretary of Veterans
Affairs, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 3, 2017
Mr. Isakson (for himself, Mr. Blumenthal, Mr. Tester, Mr. Daines, Ms.
Hassan, Mr. Udall, Mr. King, Ms. Baldwin, and Mr. Kaine) introduced the
following bill; which was read twice and referred to the Committee on
Veterans' Affairs
_______________________________________________________________________
A BILL
To amend title 38, United States Code, to reform the rights and
processes relating to appeals of decisions regarding claims for
benefits under the laws administered by the Secretary of Veterans
Affairs, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veterans Appeals Improvement and
Modernization Act of 2017''.
SEC. 2. REFORM OF RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS
REGARDING CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY
SECRETARY OF VETERANS AFFAIRS.
(a) Definitions.--Section 101 of title 38, United States Code, is
amended by adding at the end the following new paragraphs:
``(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.''.
(b) Notice Regarding Claims.--Section 5103(a) of such title is
amended--
(1) in paragraph (1), in the first sentence, by striking
``The'' and inserting ``Except as provided in paragraph (3),
the'';
(2) in paragraph (2)(B)(i) by striking ``, a claim for
reopening a prior decision on a claim, or a claim for an
increase in benefits;'' and inserting ``or a supplemental
claim;''; and
(3) by adding at the end the following new paragraph:
``(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.''.
(c) Modification of Rule Regarding Disallowed Claims.--Section
5103A(f) of such title is amended--
(1) by striking ``reopen'' and inserting ``readjudicate'';
and
(2) by striking ``material'' and inserting ``relevant''.
(d) Modification of Duty To Assist Claimants.--Section 5103A of
such title is amended--
(1) by redesignating subsections (e) through (g) as
subsections (g) through (i), respectively; and
(2) by inserting after subsection (d) the following new
subsections:
``(e) Applicability of Duty To Assist.--(1) The Secretary's duty to
assist under this section shall apply only to a claim, or supplemental
claim, for a benefit under a law administered by the Secretary until
the time that a claimant is provided notice of the agency of original
jurisdiction's decision with respect to such claim, or supplemental
claim, under section 5104 of this title.
``(2) The Secretary's duty to assist under this section shall not
apply to higher-level review by the agency of original jurisdiction,
pursuant to section 5104B of this title, or to review on appeal by the
Board of Veterans' Appeals.
``(f) Correction of Duty To Assist Errors.--(1) If, during review
of the agency of original jurisdiction decision under section 5104B of
this title, the higher-level adjudicator identifies or learns of an
error on the part of the agency of original jurisdiction to satisfy its
duties under this section, and that error occurred prior to the agency
of original jurisdiction decision being reviewed, unless the claim can
be granted in full, the higher-level adjudicator shall return the claim
for correction of such error and readjudication.
``(2)(A) If the Board of Veterans' Appeals, during review on appeal
of an agency of original jurisdiction decision, identifies or learns of
an error on the part of the agency of original jurisdiction to satisfy
its duties under this section, and that error occurred prior to the
agency of original jurisdiction decision on appeal, unless the claim
can be granted in full, the Board shall remand the claim to the agency
of original jurisdiction for correction of such error and
readjudication.
``(B) Remand for correction of such error may include directing the
agency of original jurisdiction to obtain an advisory medical opinion
under section 5109 of this title.
``(3) Nothing in this subsection shall be construed to imply that
the Secretary, during the consideration of a claim, does not have a
duty to correct an error described in paragraph (1) or (2) that was
erroneously not identified during higher-level review or during review
on appeal with respect to the claim.''.
(e) Decisions and Notices of Decisions.--Subsection (b) of section
5104 of such title is amended to read as follows:
``(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.''.
(f) Binding Nature of Favorable Findings.--
(1) In general.--Chapter 51 of such title is amended by
inserting after section 5104 the following new section:
``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.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 51 of such title is amended by inserting
after the item relating to section 5104 the following new item:
``5104A. Binding nature of favorable findings.''.
(g) Higher-Level Review by Agency of Original Jurisdiction.--
(1) In general.--Chapter 51 of such title, as amended by
subsection (f), is further amended by inserting after section
5104A, as added by such subsection, the following new section:
``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.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 51 of such title, as amended by subsection
(f), is further amended by inserting after the item relating to
section 5104A, as added by such subsection, the following new
item:
``5104B. Higher-level review by the agency of original jurisdiction.''.
(h) Options Following Decision by Agency of Original
Jurisdiction.--
(1) In general.--Chapter 51 of such title, as amended by
subsection (g), is further amended by inserting after section
5104B, as added by such subsection, the following new section:
``Sec. 5104C. Options following decision by agency of original
jurisdiction
``(a) Within One Year of Decision.--(1) Subject to paragraph (2),
in any case in which the Secretary renders a decision on a claim, the
claimant may take any of the following actions on or before the date
that is one year after the date on which the agency of original
jurisdiction issues a decision with respect to that claim:
``(A) File a request for higher-level review under section
5104B of this title.
``(B) File a supplemental claim under section 5108 of this
title.
``(C) File a notice of disagreement under section 7105 of
this title.
``(2)(A) Once a claimant takes an action set forth in paragraph
(1), the claimant may not take another action set forth in that
paragraph with respect to such claim until--
``(i) the higher-level review, supplemental claim, or
notice of disagreement is adjudicated; or
``(ii) the request for higher-level review, supplemental
claim, or notice of disagreement is withdrawn.
``(B) Nothing in this subsection shall prohibit a claimant from
taking any of the actions set forth in paragraph (1) in succession with
respect to a claim.
``(C) Nothing in this subsection shall prohibit a claimant from
taking different actions set forth in paragraph (1) with respect to
different claims.
``(D) The Secretary may, as the Secretary considers appropriate,
develop and implement a policy for claimants who--
``(i) take an action under paragraph (1);
``(ii) wish to withdraw the action before the higher-level
review, supplemental claim, or notice of disagreement is
adjudicated; and
``(iii) in lieu of such action take a different action
under paragraph (1).
``(b) More Than One Year After Decision.--In any case in which the
Secretary renders a decision on a claim and more than one year has
passed since the date on which the agency of original jurisdiction
issues a decision with respect to that claim, the claimant may file a
supplemental claim under section 5108 of this title.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 51 of such title, as amended by subsection
(g), is further amended by inserting after the item relating to
section 5104B, as added by such subsection, the following new
item:
``5104C. Options following decision by agency of original
jurisdiction.''.
(i) Supplemental Claims.--
(1) In general.--Section 5108 of such title is amended to
read as follows:
``Sec. 5108. Supplemental claims
``If new and relevant evidence is presented or secured with respect
to a supplemental claim, the Secretary shall readjudicate the claim
taking into consideration any evidence added to the record prior to the
former disposition of the claim.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 51 of such title is amended by striking
the item relating to section 5108 and inserting the following
new item:
``5108. Supplemental claims.''.
(j) Remand To Obtain Advisory Medical Opinion.--Section 5109 of
such title is amended by adding at the end the following new
subsection:
``(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.''.
(k) Restatement of Requirement for Expedited Treatment of Returned
and Remanded Claims.--
(1) In general.--Section 5109B of such title is amended to
read as follows:
``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.''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 51 of such title is amended by striking
the item relating to section 5109B and inserting the following
new item:
``5109B. Expedited treatment of returned and remanded claims.''.
(l) Effective Dates of Awards.--Section 5110 of title 38, United
States Code, is amended--
(1) by amending subsection (a) to read as follows:
``(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.''; and
(2) in subsection (i), in the first sentence--
(A) by striking ``reopened'' and inserting
``readjudicated'';
(B) by striking ``material'' and inserting
``relevant''; and
(C) by striking ``reopening'' and inserting
``readjudication''.
(m) Definition of Award or Increased Award for Purposes of
Provisions Relating to Commencement of Period of Payment.--Section
5111(d)(1) of such title is amended by striking ``or reopened award''
and inserting ``award or award based on a supplemental claim''.
(n) Modification on Limitation on Fees Allowable for
Representation.--Section 5904(c) of such title is amended, in
paragraphs (1) and (2), by striking ``notice of disagreement is filed''
both places it appears and inserting ``claimant is provided notice of
the agency of original jurisdiction's initial decision under section
5104 of this title''.
(o) Clarification of Board of Veterans' Appeals Referral
Requirements After Order for Reconsideration of Decisions.--Section
7103(b)(1) of title 38, United States Code, is amended by striking
``heard'' both places it appears and inserting ``decided''.
(p) Conforming Amendment Relating to Readjudication.--Section
7104(b) of such title is amended by striking ``reopened'' and inserting
``readjudicated''.
(q) Modification of Procedures for Appeals to Board of Veterans'
Appeals.--
(1) In general.--Section 7105 of title 38, United States
Code, is amended--
(A) in subsection (a), by striking the first
sentence and inserting ``Appellate review shall be
initiated by the filing of a notice of disagreement in
the form prescribed by the Secretary.'';
(B) by amending subsection (b) to read as follows:
``(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 may develop a policy to permit a claimant to
modify the information identified in the notice of disagreement after
the notice of disagreement has been filed under this section pursuant
to such requirements as the Secretary may prescribe.'';
(C) by amending subsection (c) to read as follows:
``(c) If no notice of disagreement is filed in accordance with this
chapter within the prescribed period, the action or decision of the
agency of original jurisdiction shall become final and the claim shall
not thereafter be readjudicated or allowed, except as may otherwise be
provided by section 5104B or 5108 of this title or such regulations as
are consistent with this title.'';
(D) by striking subsection (d) and inserting the
following new subsection (d):
``(d) The Board of Veterans' Appeals may dismiss any appeal which
fails to identify the specific determination with which the claimant
disagrees.'';
(E) by striking subsection (e); and
(F) in the section heading, by striking ``notice of
disagreement and''.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 71 of such title is amended by striking
the item relating to section 7105 and inserting the following
new item:
``7105. Filing of appeal.''.
(r) Modification of Procedures and Requirements for Simultaneously
Contested Claims.--Subsection (b) of section 7105A of such title is
amended to read as follows:
``(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.''.
(s) Repeal of Procedures for Administrative Appeals.--
(1) In general.--Chapter 71 of such title is amended by
striking section 7106.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 71 of such title is amended by striking
the item relating to section 7106.
(t) Modifications Relating to Appeals: Dockets; Hearings.--
(1) In general.--Section 7107 of such title is amended to
read as follows:
``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 and no
additional evidence will be submitted.
``(ii) Cases in which a Board hearing is requested in the
notice of disagreement.
``(4) Except as provided in subsection (b), each case before the
Board will be decided in regular order according to its respective
place on the docket to which it is assigned by the Board.
``(b) Advancement on the Docket.--(1) A case on one of the dockets
of the Board maintained under subsection (a) may, for cause shown, be
advanced on motion for earlier consideration and determination.
``(2) Any such motion shall set forth succinctly the grounds upon
which the motion is based.
``(3) Such a motion may be granted only--
``(A) if the case involves interpretation of law of general
application affecting other claims;
``(B) if the appellant is seriously ill or is under severe
financial hardship; or
``(C) for other sufficient cause shown.
``(c) Manner and Scheduling of Hearings for Cases on 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 may develop and
implement a policy allowing a claimant to move the claimant's case from
one docket to another docket.''.
(2) Report.--Not later than the date that is 90 days before
the date set forth in subsection (x), the Secretary shall
submit to the Committee on Veterans' Affairs of the Senate and
the Committee on Veterans' Affairs of the House of
Representatives a report setting forth a description of the
docket that will be maintained under section 7107 of title 38,
United States Code, as amended by paragraph (1), for cases in
which no hearing before the Board of Veterans' Appeals is
requested in the notice of disagreement but the appellant
requests, in the notice of disagreement, an opportunity to
submit additional evidence.
(u) Repeal of Certain Authority for Independent Medical Opinions.--
(1) In general.--Section 7109 of such title is repealed.
(2) Conforming amendment.--Section 5701(b)(1) of such title
is amended by striking ``or 7109''.
(3) Clerical amendment.--The table of sections at the
beginning of chapter 71 of such title is amended by striking
the item relating to section 7109.
(v) Clarification of Procedures for Review of Decisions on Grounds
of Clear and Unmistakable Error.--Section 7111(e) of such title is
amended by striking ``, without referral to any adjudicative or hearing
official acting on behalf of the Secretary''.
(w) Evidentiary Record Before Board of Veterans' Appeals.--
(1) In general.--Chapter 71 of such title is amended by
adding at the end the following new section:
``Sec. 7113. Evidentiary record before the Board of Veterans' Appeals
``(a) Cases With No Request for a Hearing or Additional Evidence.--
For cases in which a hearing before the Board of Veterans' Appeals is
not requested in the notice of disagreement and no request was made to
submit evidence, the evidentiary record before the Board shall be
limited to the evidence of record at the time of the decision of the
agency of original jurisdiction on appeal.
``(b) Cases With a Request for 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.''.
(2) Notification when evidence not considered.--Section
7104(d) of such title is amended--
(A) in paragraph (1), by striking ``; and'' and
inserting a semicolon;
(B) by redesignating paragraph (2) as paragraph
(3); and
(C) by inserting after paragraph (1) the following
new paragraph (2):
``(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) Clerical amendment.--The table of sections at the
beginning of chapter 71 of such title is amended by inserting
after the item relating to section 7112 the following new item:
``7113. Evidentiary record before the Board of Veterans' Appeals.''.
(x) Applicability.--
(1) In general.--Except as otherwise provided in this
subsection, the amendments made by this section shall apply to
all claims for which notice of a decision under section 5104 of
title 38, United States Code, is provided by the Secretary of
Veterans Affairs on or after the later of--
(A) the date that is 540 days after the date of the
enactment of this Act; and
(B) the date that is 30 days after the date on
which the Secretary of Veterans Affairs submits to the
appropriate committees of Congress a certification that
the Secretary confirms, without delegation, that the
Department of Veterans Affairs has the resources,
personnel, office space, procedures, and information
technology required--
(i) to carry out the new appeals system;
and
(ii) to timely address both appeals of
decisions on legacy claims and appeals under
the new appeals system.
(2) Collaboration.--In determining whether and when to make
a certification under paragraph (1)(B), the Secretary shall
collaborate with, partner with, and give weight to the advice
of veterans service organizations and such other stakeholders
as the Secretary considers appropriate.
(3) Early applicability.--The Secretary may apply the new
appeals system to a claim with respect to which the claimant--
(A) receives a notice of a decision under section
5104 of such title after the date of the enactment of
this Act and before the applicability date set forth in
paragraph (1); and
(B) elects to subject the claim to the new appeals
system.
(4) Phased rollout.--The Secretary may begin implementation
of the new appeals system in phases, with the first phase of
such phased implementation beginning on the applicability date
set forth in paragraph (1).
(5) Treatment of legacy claims.--With respect to legacy
claims, upon the issuance to a claimant of a statement of the
case or supplemental statement of the case occurring on or
after the applicability date specified in paragraph (1), a
claimant may elect to participate in the new appeals system.
(6) Publication of applicability date.--Not later than the
date on which the new appeals system goes into effect (or the
first phase of the new appeals system goes into effect under
paragraph (4), as the case may be), the Secretary shall publish
in the Federal Register such date.
(7) Definitions.--In this subsection:
(A) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(i) the Committee on Veterans' Affairs and
the Committee on Appropriations of the Senate;
and
(ii) the Committee on Veterans' Affairs and
the Committee on Appropriations of the House of
Representatives.
(B) Veterans service organization.--The term
``veterans service organization'' means any
organization recognized by the Secretary for the
representation of veterans under section 5902 of title
38, United States Code.
(y) Rule of Construction.--Nothing in this section or any of the
amendments made by this section shall be construed to limit the ability
of a claimant to request a revision of a decision under section 5109A
or 7111 of title 38, United States Code.
SEC. 3. COMPREHENSIVE PLAN FOR PROCESSING OF LEGACY APPEALS AND
IMPLEMENTING NEW APPEALS SYSTEM.
(a) Plan Required.--Not later than 90 days after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall submit
to the appropriate committees of Congress and the Comptroller General
of the United States a comprehensive plan for--
(1) the processing of appeals of decisions on legacy claims
that the Secretary considers pending;
(2) implementing the new appeals system;
(3) timely processing, under the new appeals system, of--
(A) supplemental claims under section 5108 of title
38, United States Code, as amended by section 2(i);
(B) requests for higher-level review under section
5104B of such title, as added by section 2(g); and
(C) appeals on any docket maintained under section
7107 of such title, as amended by section 2(t); and
(4) monitoring the implementation of the new appeals
system, including metrics and goals--
(A) to track the progress of the implementation;
(B) to evaluate the efficiency and effectiveness of
the implementation; and
(C) to identify potential issues relating to the
implementation.
(b) Elements.--The plan required by subsection (a) shall include,
at a minimum, the following:
(1) Delineation of the total resource requirements of the
Veterans Benefits Administration and the Board of Veterans'
Appeals, disaggregated by resources required to implement and
administer the new appeals system and resources required to
address the appeals of decisions on legacy claims.
(2) Delineation of the personnel requirements of the
Administration and the Board, including staffing levels during
the--
(A) period in which the Administration and the
Board are concurrently processing--
(i) appeals of decisions on legacy claims;
and
(ii) appeals of decisions on non-legacy
claims under the new appeals system; and
(B) the period during which the Administration and
the Board are no longer processing any appeals of
decisions on legacy claims.
(3) Identification of the legal authorities under which the
Administration or the Board may--
(A) hire additional employees to conduct the
concurrent processing described in paragraph (2)(A);
and
(B) remove employees who are no longer required by
the Administration or the Board once the Administration
and the Board are no longer processing any appeals of
decisions on legacy claims.
(4) An estimate of the amount of time the Administration
and the Board will require to hire additional employees as
described in paragraph (3)(A) once funding has been made
available for such purpose, including a comparison of such
estimate and the historical average time required by the
Administration and the Board to hire additional employees.
(5) A description of the modifications to the information
technology systems of the Administration and the Board that the
Administration and the Board require to carry out the new
appeals system, including cost estimates and a timeline for
making the modifications.
(6) An estimate of the office space the Administration and
the Board will require during each of the periods described in
paragraph (2), including--
(A) an estimate of the amount of time the
Administration and the Board will require to acquire
any additional office space to carry out processing of
appeals of decisions on legacy claims and processing of
appeals under the new appeals system;
(B) a comparison of the estimate under subparagraph
(A) and the historical average time required by the
Administration and the Board to acquire new office
space; and
(C) a plan for using telework to accommodate staff
exceeding available office space, including how the
Administration and the Board will provide training and
oversight with respect to such teleworking.
(7) Projections for the productivity of individual
employees at the Administration and the Board in carrying out
tasks relating to the processing of appeals of decisions on
legacy claims and appeals under the new appeals system, taking
into account the experience level of new employees and the
enhanced notice requirements under section 5104(b) of title 38,
United States Code, as amended by section 2(e).
(8) 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) a description of the resources required to
conduct such outreach; and
(B) timelines for completing such outreach.
(9) Identification of and a timeline for--
(A) any training that may be required as a result
of hiring new employees to carry out the new appeals
system or to process appeals of decisions on legacy
claims; and
(B) any retraining of existing employees that may
be required to carry out such system or to process such
claims.
(10) Identification of the costs to the Department of the
training identified under paragraph (9) and any additional
training staff and any additional training facilities that will
be required to provide such training.
(11) Timelines for updating any policy guidance, Internet
websites, and official forms that may be necessary to carry out
the new appeals system, including--
(A) identification of which offices and entities
will be involved in efforts relating to such updating;
and
(B) historical information about how long similar
update efforts have taken.
(12) 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.
(13) An outline of the circumstances under which claimants
with pending appeals of decisions on legacy claims would be
authorized to have their appeals reviewed under the new appeals
system.
(14) A delineation of the key goals and milestones for
reducing the number of pending appeals that are not processed
under the new appeals system, including the expected number of
appeals, remands, and hearing requests at the Administration
and the Board each year, beginning with the one year period
beginning on the date of the enactment of this Act, until there
are no longer any appeals pending before the Administration or
the Board for a decision on a legacy claim.
(15) A description of each risk factor associated with each
element of the plan and a contingency plan to minimize each
such risk.
(c) Review by Comptroller General of the United States.--
(1) In general.--Not later than 90 days after the
Comptroller General of the United States receives the plan
required by subsection (a), the Comptroller General shall--
(A) assess such plan; and
(B) notify the appropriate committees of Congress
of the findings of the Comptroller General with respect
to the assessment conducted under subparagraph (A).
(2) Elements.--The assessment conducted under paragraph
(1)(A) shall include the following:
(A) An assessment of whether the plan comports with
sound planning practices.
(B) Identification of any gaps in the plan.
(C) Formulation of such recommendations as the
Comptroller General considers appropriate.
(d) Periodic Progress Reports.--Not later than 90 days after the
date on which the Secretary submits the plan under subsection (a), not
less frequently than once every 90 days thereafter until the
applicability date set forth in section 2(x)(1), and not less
frequently than once every 180 days thereafter for the 10-year period
following such applicability date, the Secretary shall submit to the
appropriate committees of Congress and the Comptroller General a report
on the progress of the Secretary in carrying out the plan.
(e) Appropriate Committees of Congress Defined.--In this section,
the term ``appropriate committees of Congress'' means--
(1) the Committee on Veterans' Affairs and the Committee on
Appropriations of the Senate; and
(2) the Committee on Veterans' Affairs and the Committee on
Appropriations of the House of Representatives.
SEC. 4. PROGRAMS TO TEST ASSUMPTIONS RELIED ON IN DEVELOPMENT OF
COMPREHENSIVE PLAN FOR PROCESSING OF LEGACY APPEALS AND
SUPPORTING NEW APPEALS SYSTEM.
(a) Authorization.--
(1) In general.--The Secretary of Veterans Affairs may
carry out such programs as the Secretary considers appropriate
to test any assumptions relied upon in developing the
comprehensive plan required by section 3(a) and to test the
feasibility and advisability of any facet of the new appeals
system.
(2) Reporting required.--Whenever the Secretary determines,
based on the conduct of a program under paragraph (1), that
legislative changes to the new appeals system are necessary,
the Secretary shall submit to the Committee on Veterans'
Affairs of the Senate and the Committee on Veterans' Affairs of
the House of Representatives notice of such determination.
(b) Department of Veterans Affairs Program on Fully Developed
Appeals.--
(1) In general.--The Secretary of Veterans Affairs may,
under subsection (a)(1), carry out a program to provide the
option of an alternative appeals process that shall more
quickly determine such appeals in accordance with this
subsection.
(2) Election.--
(A) Filing.--In accordance with subparagraph (B), a
claimant may elect to file a fully developed appeal
under the program by filing with the Secretary all of
the following:
(i) The notice of disagreement under
chapter 71 of title 38, United States Code,
along with the written election of the claimant
to have the appeal determined under the
program.
(ii) All evidence that the claimant
believes is needed for the appeal as of the
date of the filing.
(iii) A statement of the argument in
support of the claim, if any.
(B) Timing.--A claimant shall make an election
under subparagraph (A) as part of the notice of
disagreement filed by the claimant in accordance with
subparagraph (A)(i).
(C) Triage.--The Secretary shall, upon expiration
of the period specified in paragraph (3)(C)(iii),
ensure that an assessment is undertaken of whether an
appeal filed under subparagraph (A) of this paragraph
satisfies the requirements for appeal under the program
and provide appropriate notification to the claimant of
the results of that assessment.
(D) Reversion.--
(i) Elected reversion.--At any time, a
claimant who makes an election under
subparagraph (A) may elect to revert to the
standard appeals process. Such a reversion
shall be final.
(ii) Automatic reversion.--A claimant
described in clause (i), or a claimant who
makes an election under subparagraph (A) but is
later determined to be ineligible for the
program under paragraph (1), shall revert to
the standard appeals process without any
penalty to the claimant other than the loss of
the docket number associated with the fully
developed appeal.
(E) Outreach.--In providing claimants with notices
of the determination of a claim during the period in
which the program under paragraph (1) is carried out,
the Secretary shall conduct outreach as follows:
(i) The Secretary shall provide to the
claimant (and to the representative of record
of the claimant, if any) information
regarding--
(I) the program, including the
advantages and disadvantages of the
program;
(II) how to make an election under
subparagraph (A);
(III) the limitation on the use of
new evidence described in subparagraph
(C) of paragraph (3) and the
development of information under
subparagraph (D) of such paragraph;
(IV) the ability of the claimant to
seek advice and education regarding
such process from veterans service
organizations, attorneys, and claims
agents recognized under chapter 59 of
title 38, United States Code; and
(V) the circumstances under which
the appeal will automatically revert to
the standard appeals process, including
by making a request for a hearing.
(ii) The Secretary shall collaborate,
partner with, and give weight to the advice of
the three veterans service organizations with
the most members and such other stakeholders as
the Secretary considers appropriate to publish
on the Internet website of the Department of
Veterans Affairs an online tutorial explaining
the advantages and disadvantages of the
program.
(3) Treatment by department and board.--
(A) Process.--Upon the election of a claimant to
file a fully developed appeal pursuant to paragraph
(2)(A), the Secretary shall--
(i) not provide the claimant with a
statement of the case nor require the claimant
to file a substantive appeal; and
(ii) transfer jurisdiction over the fully
developed appeal directly to the Board of
Veterans' Appeals.
(B) Docket.--
(i) In general.--The Board of Veterans'
Appeals shall--
(I) maintain fully developed
appeals on a separate docket than
standard appeals;
(II) decide fully developed appeals
in the order that the fully developed
appeals are received on the fully
developed appeal docket;
(III) except as provided by clause
(ii), decide not more than one fully
developed appeal for each four standard
appeals decided; and
(IV) to the extent practicable,
decide each fully developed appeal by
the date that is one year following the
date on which the claimant files the
notice of disagreement.
(ii) Adjustment.--Beginning one year after
the date on which the program commences, the
Board may adjust the number of standard appeals
decided for each fully developed appeal under
clause (i)(III) if the Board determines that
such adjustment is fair for both standard
appeals and fully developed appeals.
(C) Limitation on use of new evidence.--
(i) In general.--Except as provided by
clauses (ii) and (iii)--
(I) a claimant may not submit or
identify to the Board of Veterans'
Appeals any new evidence relating to a
fully developed appeal after filing
such appeal unless the claimant reverts
to the standard appeals process
pursuant to paragraph (2)(D); and
(II) if a claimant submits or
identifies any such new evidence, such
submission or identification shall be
deemed to be an election to make such a
reversion pursuant to paragraph (2)(D).
(ii) Evidence gathered by board.--Clause
(i) shall not apply to evidence developed
pursuant to subparagraphs (D) and (E). The
Board shall consider such evidence in the first
instance without consideration by the Veterans
Benefits Administration.
(iii) Representative of record.--The
representative of record of a claimant for
appeals purposes, if any, shall be provided an
opportunity to review the fully developed
appeal of the claimant and submit any
additional arguments or evidence that the
representative determines necessary during a
period specified by the Board for purposes of
this subparagraph.
(D) Prohibition on remand for additional
development.--If the Board of Veterans' Appeals
determines that a fully developed appeal requires
Federal records, independent medical opinions, or new
medical examinations, the Board shall--
(i) in accordance with subparagraph (E),
take such actions as may be necessary to
develop such records, opinions, or examinations
in accordance with section 5103A of title 38,
United States Code;
(ii) retain jurisdiction of the fully
developed appeal without requiring a
determination by the Veterans Benefits
Administration based on such records, opinions,
or examinations;
(iii) ensure the claimant, and the
representative of record of a claimant, if any,
receives a copy of such records, opinions, or
examinations; and
(iv) provide the claimant a period of 90
days after the date of mailing such records,
opinions, or examinations during which the
claimant may provide the Board any additional
evidence without requiring the claimant to make
a reversion pursuant to paragraph (2)(D).
(E) Development unit.--
(i) Establishment.--The Board of Veterans'
Appeals shall establish an office to develop
Federal records, independent medical opinions,
and new medical examinations pursuant to
subparagraph (D)(i) that the Board determines
necessary to decide a fully developed appeal.
(ii) Requirements.--The Secretary shall--
(I) ensure that the Veterans
Benefits Administration cooperates with
the Board of Veterans' Appeals in
carrying out clause (i); and
(II) transfer employees of the
Veterans Benefits Administration who,
prior to the enactment of this Act,
were responsible for processing claims
remanded by the Board of Veterans'
Appeals to positions within the office
of the Board established under clause
(i) in a number the Secretary
determines sufficient to carry out such
subparagraph.
(F) Hearings.--Notwithstanding section 7107 of
title 38, United States Code, the Secretary may not
provide hearings with respect to fully developed
appeals under the program. If a claimant requests to
hold a hearing pursuant to such section 7107, such
request shall be deemed to be an election to revert to
the standard appeals process pursuant to paragraph
(2)(D).
(4) Duration; applicability.--
(A) Duration.--Subject to subsection (c), the
Secretary may carry out the program during such period
as the Secretary considers appropriate.
(B) Applicability.--This section shall apply only
to fully developed appeals that are filed during the
period in which the program is carried out pursuant to
subparagraph (A).
(5) Definitions.--In this subsection:
(A) Compensation.--The term ``compensation'' has
the meaning given that term in section 101 of title 38,
United States Code.
(B) Fully developed appeal.--The term ``fully
developed appeal'' means an appeal of a claim for
disability compensation that is--
(i) filed by a claimant in accordance with
paragraph (2)(A); and
(ii) considered in accordance with this
subsection.
(C) Standard appeal.--The term ``standard appeal''
means an appeal of a claim for disability compensation
that is not a fully developed appeal.
(c) Termination of Authority.--The Secretary of Veterans Affairs
may not carry out a program under this section after the applicability
date set forth in section 2(x)(1).
SEC. 5. PERIODIC PUBLICATION OF METRICS RELATING TO PROCESSING OF
APPEALS BY DEPARTMENT OF VETERANS AFFAIRS.
The Secretary of Veterans Affairs shall periodically publish on an
Internet website of the Department of Veterans Affairs the following:
(1) With respect to the processing by the Secretary of
appeals under the new appeals system of decisions regarding
claims for benefits under laws administered by the Secretary,
the following:
(A) For the Veterans Benefits Administration and,
to the extent practicable, each regional office of the
Department of Veterans Affairs, the number of--
(i) supplemental claims under section 5108
of title 38, United States Code, as amended by
section 2(i), that are pending; and
(ii) requests for higher-level review under
section 5104B of such title, as added by
section 2(g), that are pending.
(B) The number of appeals on any docket maintained
under section 7107 of such title, as amended by section
2(t), that are pending.
(C) The average duration for processing claims and
supplemental claims, disaggregated by regional office.
(D) The average duration for processing requests
for higher-level review under section 5104B of such
title, as added by section 2(g), disaggregated by
regional office.
(E) The average number of days that appeals are
pending on a non-hearing option docket of the Board of
Veterans' Appeals maintained pursuant to section 7107
of such title, as amended by section 2(t), and any
other docket maintained by the Board under such section
that prohibits the submittal of additional evidence.
(F) The average number of days that appeals are
pending on dockets maintained under such section in
which hearings are requested or submittal of additional
evidence is allowed.
(G) The average number of days that an appeal is
pending on any other docket maintained by the Board
under such section.
(H) In the case that the Secretary develops and
implements a policy under section 7107(e) of such
title, as amended by section 2(t)--
(i) the number of cases moved from one
docket to another pursuant to such policy;
(ii) the average time cases were pending
prior to moving from one docket to another; and
(iii) the average time to adjudicate the
cases after so moving.
(I) The total number of remands to obtain advisory
medical opinions under section 5109(d) of title 38,
United States Code, as added by section 2(j).
(J) The average number of days between the date on
which the Board remands a claim to obtain an advisory
medical opinion under section 5109(d) of such title, as
so added, and the date on which the advisory medical
opinion is obtained.
(K) The average number of days between the date on
which the Board remands a claim to obtain an advisory
medical opinion under section 5109(d) of such title, as
so added, and the date on which the agency of original
jurisdiction issues a decision taking that advisory
opinion into account.
(L) 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.
(M) The number of claimants each year that take
action within the period set forth in section
5110(a)(2) of such title, as added by section 2(l), to
protect their effective date under such section
5110(a)(2), 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.
(N) The total number of times on average each
claimant files under section 5110(a)(2) of such title,
as so added, to protect their effective date under such
section, disaggregated by the subparagraph of such
section under which they file.
(O) 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 under section 5110(a)(2) of such title, as so
added--
(i) of claims under the new appeals system,
excluding legacy claims that opt in to the new
appeals system; and
(ii) of legacy claims that opt in to the
new appeals system.
(P) How frequently an action taken within one year
to protect an effective date under section 5110(a)(2)
of such title, as so added, leads to additional grant
of benefits, disaggregated by action taken.
(Q) The average of how long it takes to complete
each segment of the claims process while claimants are
protecting the effective date under such section,
disaggregated by the time waiting for the claimant to
take an action and the time waiting for the Secretary
to take an action.
(R) The number and the average amount of
retroactive awards of benefits from the Secretary as a
result of protected effective dates under such section,
disaggregated by action taken.
(S) The average number of times claimants submit to
the Secretary different claims with respect to same
condition, such as an initial claim and a supplemental
claim.
(T) 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 the
Secretary took in response, and how long it took on
average to take those actions.
(U) In the case that the Secretary develops and
implements a policy under section 5104C(a)(2)(D) of
such title, as amended by section 2(h)(1), the number
of actions withdrawn and new actions taken pursuant to
such policy.
(V) The number of times the Secretary 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 the Secretary to deal
with the evidence and how long on average it took to
take those actions.
(W) The number of errors committed by the Secretary
in carrying out the Secretary's duty to assist under
section 5103A of title 38, United States Code, 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
the Secretary in carrying out such duty with respect to
appeals of decisions on legacy claims.
(X) An assessment of the productivity of employees
at the regional offices and at the Board, disaggregated
by level of experience of the employees.
(2) With respect to the processing by the Secretary of
appeals of decisions on legacy claims, the following:
(A) The average duration of each segment of the
appeals process, disaggregated by periods in which the
Secretary is waiting for a claimant to take an action
and periods in which the claimant is waiting for the
Secretary to take an action.
(B) The frequency by which appeals lead to
additional grant of benefits by the Secretary,
disaggregated by whether the additional benefits are a
result of additional evidence added after the initial
decision.
(C) The number and average amount of retroactive
awards of benefits resulting from an appeal.
(D) The average duration from filing a legacy claim
with the Secretary until all appeals and remands
relating to such legacy claim are completed.
(E) The average number of times claimants submit to
the Secretary different claims with respect to same
condition, such as an initial claim, new and material
evidence, or a claim for an increase in benefits.
(F) An assessment of the productivity of employees
at the regional offices and at the Board, disaggregated
by level of experience of the employees.
(G) The average number of days the duration of an
appeal is extended because the Secretary secured or
attempted to secure an advisory medical opinion under
section 5109 of title 38, United States Code, or
section 7109 of such title (as in effect on the day
before the date of the enactment of this Act).
(3) With respect to the processing by the Secretary of
appeals of decisions on legacy claims that opt in to the new
appeals system, the following:
(A) The cumulative number of such legacy claims.
(B) The portion of work in the new appeals system
attributable to appeals of decisions on such legacy
claims.
(C) The average period such legacy claims were
pending before opting in to the new appeals system and
the average period required to adjudicate such legacy
claims on average after opting in--
(i) with respect to claims at a regional
office of the Department of Veterans Affairs,
disaggregated by--
(I) supplemental claims under
section 5108 of title 38, United States
Code, as amended by section 2(i); and
(II) requests for higher-level
review under section 5104B of such
title, as added by section 2(g); and
(ii) with respect to appeals, disaggregated
by docket of the Board maintained under section
7107 of such title, as amended by section 2(t).
SEC. 6. DEFINITIONS.
In this Act:
(1) Claimant.--The term ``claimant'' has the meaning given
such term in section 5100 of title 38, United States Code.
(2) Legacy claims.--The term ``legacy claim'' means a
claim--
(A) that was submitted to the Secretary of Veterans
Affairs for a benefit under a law administered by the
Secretary; and
(B) for which notice of a decision under section
5104 of title 38, United States Code, was provided by
the Secretary before the date set forth in section
2(x).
(3) Opt in.--The term ``opt in'' means, with respect to a
legacy claim of a claimant, that the claimant elects to subject
the claim to the new appeals system pursuant to--
(A) section 2(x)(3); or
(B) such other mechanism as the Secretary may
prescribe for purposes of carrying out this Act and the
amendments made by this Act.
(4) New appeals system.--The term ``new appeals system''
means the set of processes and mechanisms by which the
Secretary processes, pursuant to the authorities and
requirements modified by section 2, claims for benefits under
laws administered by the Secretary.
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