[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3328 Introduced in Senate (IS)]
<DOC>
114th CONGRESS
2d Session
S. 3328
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
September 14, 2016
Mr. Blumenthal (for himself, Mr. Tester, Mr. King, Mr. Udall, Ms.
Baldwin, Mr. Casey, Ms. Hirono, Mr. Manchin, Mr. Leahy, Mrs. Murray,
Mr. Brown, and Mr. Sanders) 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 ``Department of Veterans Affairs
Appeals Modernization Act of 2016''.
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.''.
(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 reviewer identifies 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 reviewer 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 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.''.
(e) Decisions and Notices of Decisions.--Subsection (b) of section
5104 of such title 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 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) 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
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.--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.
``(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.
``(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 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 denies 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
appeal in connection with the 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.
``(b) More Than One Year After Decision.--In any case in which the
Secretary denies 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 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 decision on appeal.
``(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 Remanded
Claims.--Section 5109B of such title is amended to read as follows:
``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 agency of original
jurisdiction of any claim that is remanded by the Board of Veterans'
Appeals.''.
(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.
``(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)--
(i) 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.''; and
(ii) by striking ``hearing and'';
(B) by amending subsection (b) to read as follows:
``(b)(1)(A) Except in the case of simultaneously contested claims,
notice of disagreement shall be filed within one year from the date of
the mailing of notice of the decision of the agency of original
jurisdiction pursuant to section 5104, 5104B, or 5108 of this title.
``(B) A notice of disagreement postmarked before the expiration of
the 1-year period shall be accepted as timely filed.
``(C) A question as to timeliness or adequacy of the notice of
disagreement shall be decided by the Board.
``(2)(A) Notices of disagreement shall be in writing, shall 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.
``(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)(A) The notice of disagreement shall indicate whether the
claimant requests--
``(i) a hearing before the Board;
``(ii) an opportunity to submit additional evidence without
a hearing before the Board; or
``(iii) a review by the Board without a hearing or
submission of additional evidence.
``(B) If the claimant does not expressly request a hearing before
the Board in the notice of disagreement, no hearing before the Board
shall be held.'';
(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 allege specific error of fact or law in the decision being
appealed.'';
(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.--Section
7107 of such title is amended to read as follows:
``Sec. 7107. Appeals: dockets; hearings
``(a) Dockets.--(1) The Board shall maintain two separate dockets
as follows:
``(A) A non-hearing option docket shall be maintained for
cases in which no Board hearing is requested and no additional
evidence will be submitted.
``(B) 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.
``(2) 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.
``(b) Advancement on the Docket.--(1) 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.
``(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 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 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.''.
(u) Repeal of Certain Authority for Independent Medical Opinions.--
(1) In general.--Section 7109 of such title is hereby
repealed.
(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 7109.
(v) Clarification of Procedures for Review of Decisions on Grounds
of Clear and Unmistakable Error.--Section 7111(e) of title 38, United
States Code, 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 title 38, United States
Code, is amended by adding at the end the following new
section:
``Sec. 7113. Evidentiary record before the Board of Veterans' Appeals
``(a) Non-Hearing Option Docket.--For cases in which a hearing
before the Board of Veterans' Appeals 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 decision of the agency of
original jurisdiction on appeal.
``(b) Hearing Option Docket.--(1)(A) Except as provided in
subparagraph (B) of this paragraph, 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 decision of the agency of
original jurisdiction on appeal.
``(B) 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:
``(i) Evidence submitted by the appellant and his or her
representative, if any, at the Board hearing.
``(ii) Evidence submitted by the appellant and his or her
representative, if any, within 90 days following the Board
hearing.
``(2)(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.
``(ii) Evidence submitted by the appellant and his or her
representative, if any, within 90 days following receipt of the
notice of disagreement.''.
(2) 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.--The amendments made by this Act 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 on or after the
date that is 540 days after the date of the enactment of this Act.
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