[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5083 Introduced in House (IH)]
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114th CONGRESS
2d Session
H. R. 5083
To amend title 38, United States Code, to improve the appeals process
of the Department of Veterans Affairs.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 27, 2016
Ms. Titus introduced the following bill; which was referred to the
Committee on Veterans' Affairs
_______________________________________________________________________
A BILL
To amend title 38, United States Code, to improve the appeals process
of the Department of Veterans Affairs.
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 ``VA Appeals Modernization Act of
2016''.
SEC. 2. APPEALS REFORM.
(a) 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 this title.
``(35) The term `relevant evidence' means evidence that
tends to prove or disprove a matter in issue.''.
(b) Section 5103 of title 38, United States Code, is amended--
(1) in subsection (a)(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
(2) in subsection (b) by adding at the end the following
new paragraph:
``(6) Nothing in this section shall require notice to be
sent for a supplemental claim that is filed within the
timeframe set forth in subsections (a)(2)(B) and (a)(2)(D) of
section 5110 of this title.''.
(c) Section 5103A(f) of title 38, United States Code, is amended to
read as follows:
``(a) Rule With Respect to Disallowed Claims.--Nothing in this
section shall be construed to require the Secretary to readjudicate a
claim that has been disallowed except when new and relevant evidence is
presented or secured, as described in section 5108 of this title.''.
(d) Chapter 51 of title 38, United States Code, is amended by
adding the following new sections:
``Sec. 5103B. Applicability of duty to assist
``(a) The Secretary's duty to assist under section 5103A of this
title 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.
``(b) The Secretary's duty to assist under section 5103A of this
title 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.
``(c) Correction of Duty To Assist Errors.--
``(1) Higher-level review.--If, during review of the Agency
of Original Jurisdiction's decision under section 5104B of this
title, the higher-level reviewer identifies an error on the
part of the Agency of Original Jurisdiction to satisfy its
duties under section 5103A of this title, and that error
occurred prior to the Agency of Original Jurisdiction's
decision being reviewed, unless the claim can be granted in
full, the higher-level reviewer shall return the claim for
correction of such error and readjudication.
``(2) Board of veterans' appeals.--If the Board, during
review on appeal of an Agency of Original Jurisdiction
decision, identifies an error on the part of the Agency of
Original Jurisdiction to satisfy its duties under section 5103A
of this title, 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. 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.
``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.--The 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.
``(b) Time and Manner of Request.--A request for higher-level
review by the Agency of Original Jurisdiction must be in writing in the
form prescribed by the Secretary and made within one year of the notice
of the Agency of Original Jurisdiction's decision. 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.
``(c) Decision.--Notice of a higher-level review decision under
this section shall be provided in writing.
``(d) Evidentiary Record for Review.--The evidentiary record before
the higher-level reviewer shall be limited to the evidence of record in
the Agency of Original Jurisdiction's decision being reviewed.
``(e) De Novo Review.--Higher-level review under this section shall
be de novo.''.
(e) Section 5104(b) of title 38, United States Code, is amended to
read as follows:
``(b) In any case where the Secretary denies a benefit sought, the
notice required by subsection (a) shall also include--
``(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) identification of elements not satisfied leading to
the denial;
``(6) an explanation of how to obtain or access evidence
used in making the decision; and
``(7) if applicable, identification of the criteria that
must be satisfied to grant service connection or the next
higher level of compensation.''.
(f) Section 5108 of title 38, United States Code, 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.''.
(g) Section 5109 of title 38, United States Code, is amended by
adding at the end the following new subsection:
``(d) The Board of Veterans' Appeals may remand a claim to direct
the Agency of Original Jurisdiction to obtain an advisory medical
opinion under this section to correct an error on the part of the
Agency of Original Jurisdiction to satisfy its duties under section
5103A of this title when such error occurred prior to the Agency of
Original Jurisdiction's decision on appeal. The Board's remand
instructions shall include the questions to be posed to the independent
medical expert providing the advisory medical opinion.''.
(h) Section 5110 of title 38, United States Code, is amended--
(1) by amending subsection (a) to read as follows:
``(a)(1) In General.--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) Effect of Continuous Pursuit of a Claim on Effective Date of
Award.--For purposes of applying the effective date rules in this
section, the date of application shall be considered the date of the
filing of the initial application for a benefit provided that 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 within one year of an Agency of Original
Jurisdiction decision;
``(B) a supplemental claim under section 5108 of this title
within one year of an Agency of Original Jurisdiction decision;
``(C) a notice of disagreement within one year of an Agency
of Original Jurisdiction decision; or
``(D) a supplemental claim under section 5108 of this title
within one year of a decision of the Board of Veterans'
Appeals.
``(3) Supplemental Claims Received More Than One Year After an
Agency of Original Jurisdiction Decision or Decision by the Board of
Veterans' Appeals.--Except as otherwise provided in this section, for
supplemental claims received more than one year after an Agency of
Original Jurisdiction decision or a decision by the Board of Veterans'
Appeals, 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) by--
(A) striking ``reopened'' and replacing it with
``readjudicated'';
(B) striking ``material'' and replacing it with
``relevant''; and
(C) striking ``reopening'' and replacing it with
``readjudication''.
(i) Section 5111(d)(1) of title 38, United States Code, is amended
by striking ``or reopened award;'' and replacing it with ``award or
award based on a supplemental claim;''.
(j) Section 5904 of title 38, United States Code, is amended--
(1) in subsection (c)(1) by striking ``notice of
disagreement is filed'' and replacing it with ``claimant is
provided notice of the Agency of Original Jurisdiction's
initial decision under section 5104 of this title''; and
(2) in subsection (c)(2) by striking ``notice of
disagreement is filed'' and replacing it with ``claimant is
provided notice of the Agency of Original Jurisdiction's
initial decision under section 5104 of this title''.
(k) Section 7103 of title 38, United States Code, is amended--
(1) in subsection (b)(1)(A) by striking ``heard'' and
replacing it with ``decided''; and
(2) in subsection (b)(1)(B) by striking ``heard'' and
replacing it with ``decided''.
(l) Section 7104(b) of title 38, United States Code, is amended by
striking ``reopened'' and replacing it with ``readjudicated''.
(m) Section 7105 of title 38, United States Code, is amended--
(1) in subsection (a)--
(A) by striking the first sentence and replacing it
with ``Appellate review will be initiated by the filing
of a notice of disagreement in the form prescribed by
the Secretary.''; and
(B) by striking ``hearing and'';
(2) by amending subsection (b) to read as follows:
``(b)(1) Except in the case of simultaneously contested claims,
notice of disagreement shall be filed within one year from the date of
the mailing of notice of the Agency of Original Jurisdiction's decision
under section 5104, 5104B, or 5108. A notice of disagreement postmarked
before the expiration of the one-year period will be accepted as timely
filed. A question as to timeliness or adequacy of the notice of
disagreement shall be decided by the Board.
``(2) Notices of disagreement must be in writing, must set out
specific allegations of error of fact or law, 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. Notices of disagreement must be filed with the
Board.
``(3) The notice of disagreement shall indicate whether the
claimant requests a hearing before the Board, requests an opportunity
to submit additional evidence without a Board hearing, or requests
review by the Board without a hearing or submission of additional
evidence. If the claimant does not expressly request a Board hearing in
the notice of disagreement, no Board hearing will be held.'';
(3) 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 Agency of Original
Jurisdiction's action or decision shall become final and the claim will
not thereafter be readjudicated or allowed, except as may otherwise be
provided by section 5104B or 5108 of this title or regulations not
inconsistent with this title.'';
(4) by striking subsections (d)(1) through (d)(5);
(5) by adding a new subsection (d) to read as follows:
``(d) The Board of Veterans' Appeals may dismiss any appeal which
fails to allege specific error of fact or law in the decision being
appealed.''; and
(6) by striking subsection (e).
(n) Section 7105A(b) of title 38, United States Code, is amended to
read as follows:
``(b) The substance of the notice of disagreement 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 response
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.''.
(o) Strike section 7106 of title 38, United States Code.
(p) Section 7107 of title 38, United States Code, is amended--
(1) by amending subsection (a) to read as follows:
``(a) The Board shall maintain two separate dockets. A non-hearing
option docket shall be maintained for cases in which no Board hearing
is requested and no additional evidence will be submitted. A separate
and distinct hearing option docket shall be maintained for cases in
which a Board hearing is requested in the notice of disagreement or in
which no Board hearing is requested, but the appellant requests, in the
notice of disagreement, an opportunity to submit additional evidence.
Except as provided in subsection (b), each case before the Board will
be decided in regular order according to its respective place on the
Board's non-hearing option docket or the hearing option docket.'';
(2) by amending subsection (b) to read as follows:
``(b) Advancement on the Docket.--A case on either the Board's non-
hearing option docket or hearing option docket, 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--
``(1) if the case involves interpretation of law of general
application affecting other claims;
``(2) if the appellant is seriously ill or is under severe
financial hardship; or
``(3) for other sufficient cause shown.'';
(3) by amending subsection (c) to read as follows:
``(c) Manner and Scheduling of Hearings for Cases on Board Hearing
Option Docket.--(1) For cases on the Board hearing option docket 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 subsection (c)(1)(A) of this
section, the appellant may alternatively request a hearing as described
in subsection (c)(1)(B) of this section. If so requested, the Board
shall grant such request.
``(B) Upon notification of a Board hearing by picture and voice
transmission as described in subsection (c)(1)(B) of this section, the
appellant may alternatively request a hearing as described in
subsection (c)(1)(A) of this section. If so requested, the Board shall
grant such request.''; and
(4) by striking subsections (d) and (e) and redesignating
subsection (f) as subsection (d).
(q) Strike section 7109 of title 38, United States Code.
(r) Section 7111(e) of title 38, United States Code, is amended by
striking ``merits, without referral to any adjudicative or hearing
official acting on behalf of the Secretary.'' and replacing it with
``merits.''.
(s) Chapter 71 of title 38, United States Code, is amended by
adding the following new section:
``Sec. 7113. Evidentiary record before the board
``(a) Non-Hearing Option Docket.--For cases in which a Board
hearing is not 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 Agency of Original Jurisdiction decision on appeal.
``(b) Hearing Option Docket.--(1) Hearing Requested.--Except as
provided in paragraph (2) of this subsection, for cases on the hearing
option docket 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 Agency of Original
Jurisdiction decision on appeal.
``(2) Exceptions.--The evidentiary record before the Board for
cases on the hearing option docket in which a hearing is requested,
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; and
``(B) evidence submitted by the appellant and his or her
representative, if any, within 90 days following the Board
hearing.
``(3) Hearing Not Requested.--(A) Except as provided in
subparagraph (B) of this paragraph, for cases on the hearing option
docket in which a hearing is not requested in the notice of
disagreement, the evidentiary record before the Board shall be limited
to the evidence considered by the Agency of Original Jurisdiction in
the decision on appeal.
``(B) The evidentiary record before the Board for cases on the
hearing option docket in which a hearing is not requested, shall
include each of the following, which the Board shall consider in the
first instance--
``(i) evidence submitted by the appellant and his or her
representative, if any, with the notice of disagreement; and
``(ii) evidence submitted by the appellant and his or her
representative, if any, within 90 days following receipt of the
notice of disagreement.''.
(t) Conforming Amendment.--The heading of section 7105 is amended
by striking ``notice of disagreement and''.
(u) Clerical Amendments.--
(1) The table of sections at the beginning of chapter 51 of
title 38, United States Code, is amended--
(A) by inserting after the item relating to section
5103A the following new item:
``5103B. Applicability of duty to assist.'';
and
(B) by inserting after the item relating to section
5104 the following new items:
``5104A. Binding nature of favorable findings.
``5104B. Higher-level review by the Agency of Original Jurisdiction.''.
(2) The item relating to section 5108 in the table of
sections at the beginning of chapter 51 of title 38, United
States Code, is amended by striking ``Reopening disallowed
claims.'' and replacing it with ``Supplemental claims.''.
(3) The table of sections at the beginning of chapter 71 of
title 38, United States Code, is amended by--
(A) striking the item relating to section 7106;
(B) striking the item relating to section 7109; and
(C) adding at the end the following new item:
``7113. The evidentiary record before the Board.''.
(4) The item relating to section 7105 in the table of
sections at the beginning of chapter 71 of title 38, United
States Code, is amended by striking ``notice of disagreement
and''.
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