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                                                     Calendar No. 166
115th Congress     }                                    {      Report
                                 SENATE
 1st Session       }                                    {     115-126

======================================================================



 
       VETERANS APPEALS IMPROVEMENT AND MODERNIZATION ACT OF 2017

                                _______
                                

                 July 10, 2017.--Ordered to be printed

                                _______
                                

         Mr. Isakson, from the Committee on Veterans' Affairs,
                        submitted the following

                              R E P O R T

                         [To accompany S. 1024]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs (hereinafter, 
``Committee''), to which was referred the bill (S. 1024) to 
amend title 38, United States Code (hereinafter, ``U.S.C.''), 
to reform the rights and processes relating to appeals of 
decisions regarding claims for benefits under the laws 
administered by the Secretary of Veterans Affairs, and for 
other purposes, having considered the same, reports favorably 
thereon with an amendment in the nature of a substitute and 
recommends that the bill, as amended, do pass.

                              Introduction

    On May 3, 2017, Chairman Isakson introduced S. 1024, the 
proposed Veterans Appeals Improvement and Modernization Act of 
2017. S. 1024 would restructure the appeals process within the 
Department of Veterans Affairs (hereinafter, ``VA'') consistent 
with a proposal developed by VA and stakeholders; would require 
VA to submit to Congress and the Government Accountability 
Office (hereinafter, ``GAO'') a comprehensive plan for 
processing appeals that are pending before the new appeals 
system takes effect (hereinafter, ``legacy appeals'') and 
implementing the new appeals system; would authorize VA to test 
facets of the new system before it takes effect; and would 
require VA periodically to publish on its website data 
regarding processing legacy appeals and appeals in the new 
system. Senators Baldwin, Blumenthal, Daines, Hassan, Kaine, 
King, Tester, and Udall are original cosponsors. Senators 
Brown, Capito, Cochran, Collins, Crapo, Durbin, Enzi, Hatch, 
Heinrich, Heller, Hirono, Manchin, McCaskill, Nelson, Rounds, 
Thune, and Warner were later added as cosponsors. The bill was 
referred to the Committee.
    On January 17, 2017, Senator Rubio introduced S. 152, the 
proposed VA Accountability First and Appeals Modernization Act 
of 2017. S. 152 would reform the appeals process within VA 
consistent with a proposal developed by VA and stakeholders. 
Senators McCain and Toomey are original cosponsors. Senators 
Daines and Grassley were later added as cosponsors. The bill 
was referred to the Committee.
    On March 23, 2017, Senator Blumenthal introduced S. 712, 
the proposed Department of Veterans Affairs Appeals 
Modernization Act of 2017. S. 712 would reform the appeals 
process within VA consistent with a proposal developed by VA 
and stakeholders. Senators Baldwin, Brown, Casey, Durbin, 
Feinstein, Hassan, Hirono, Kaine, King, Manchin, Murray, 
Sanders, Shaheen, Tester, Udall, Van Hollen, and Warner are 
original cosponsors. Senators Franken, Menendez, Merkley, and 
Wyden were later added as cosponsors. The bill was referred to 
the Committee.
    On April 25, 2017, Senator Sullivan introduced S. 933, the 
proposed Express Appeals Act of 2017. S. 933 would direct VA to 
carry out a pilot program to provide veterans the option of 
using an alternative appeals process to more quickly determine 
claims for disability compensation. Senator Casey is an 
original cosponsor. The bill was referred to the Committee.

                           Committee Hearing

    On May 17, 2017, the Committee held a hearing on 
legislation pending before the Committee, including S. 1024. 
Testimony was received by Jennifer S. Lee, M.D., Deputy Under 
Secretary for Health for Policy and Services, Veterans Health 
Administration, U.S. Department of Veterans Affairs; Louis J. 
Celli, Jr., Director, National Veterans Affairs and 
Rehabilitation Division, The American Legion; Kayda Keleher, 
Associate Director, National Legislative Service, Veterans of 
Foreign Wars; Adrian Atizado, Deputy National Legislative 
Director, Disabled American Veterans; Allison Jaslow, Executive 
Director, Iraq and Afghanistan Veterans of America; and J. 
David Cox, National President, American Federation of 
Government Employees.

                           Committee Meeting

    After reviewing the testimony from the foregoing hearing, 
the Committee met in open session on June 28, 2017, to consider 
an amended version of S. 1024. The Committee voted by voice 
vote, without objection, to report favorably to the Senate 
S. 1024 as amended.

               Summary of the Committee Bill as Reported

    S. 1024, as reported (hereinafter, ``the Committee bill''), 
consists of six sections, summarized below.
    Section 1 provides a short title.
    Section 2 would restructure the appeals process within VA 
consistent with a proposal developed by VA and stakeholders.
    Section 3 would require VA to submit to Congress and GAO a 
comprehensive plan for processing legacy appeals and 
implementing the new appeals system and to provide periodic 
reports on VA's progress in carrying out that plan.
    Section 4 would authorize VA to test facets of the new 
system before it takes effect, including carrying out the fully 
developed appeals pilot program outlined in S. 933.
    Section 5 would require VA periodically to publish on its 
website data regarding processing legacy appeals and appeals in 
the new system.
    Section 6 would define several terms used in the Committee 
bill.

                       Background and Discussion


Sec. 2. Reform of rights and processes relating to appeals of decisions 
        regarding claims for benefits under laws administered by 
        Secretary of Veterans Affairs.

    In general, section 2 of the Committee bill, which is 
derived from S. 152 and S. 712, includes a proposal to 
restructure the VA appeals process. The proposal was developed 
by VA in collaboration with stakeholders.
    Background. In general, an individual who is dissatisfied 
with VA's decision on a claim for VA benefits may appeal that 
decision. There are a number of potential steps in the appeals 
process at VA's Veterans Benefits Administration (hereinafter, 
``VBA''), including review by a Decision Review Officer, VA 
issuing a statement of the case, the appellant filing a 
substantive appeal, VA issuing supplemental statements of the 
case, and VA certifying the appeal to the Board of Veterans' 
Appeals (hereinafter, ``Board'' or ``BVA''). At the Board, the 
appellant may request an in-person hearing in Washington, DC, 
an in-person hearing at a VA office in his or her locality, or 
a video-conference hearing. Also, an individual generally may 
submit evidence at any time during the appeals process and VA 
has a duty to assist the individual in obtaining evidence 
needed to prevail. Between January 2013 and January 2016, the 
number of appeals pending agency-wide at VA rose from 
approximately 325,000 appeals to over 441,000 appeals.
    Beginning in 2016, VA conducted a series of meetings with a 
range of stakeholders in order to develop a path forward on 
reforming the appeals process. Based on those meetings, VA 
submitted to Congress in April 2016 draft legislation to 
restructure the VA appeals process in order to provide 
claimants with several options if they are not satisfied with 
VA's initial decision on their claims for benefits. Since that 
time, the Committee has received further feedback from 
stakeholders on the appeals reform proposal. The provisions in 
section 2 of the Committee bill reflect the original VA 
proposal along with technical changes and further improvements 
based on that feedback from stakeholders.
    Committee Bill. The specific changes made by section 2 of 
the Committee bill are outlined below. The Committee expects 
and intends that VA will operate under the new appeals 
framework in a veteran-friendly manner.

Sec. 2(a). Definitions.

    Section 2(a) of the Committee bill would define several 
terms that would be utilized in title 38, U.S.C., if the 
Committee bill is enacted.
    Background. Section 101 of title 38, U.S.C., sets forth a 
number of definitions of terms used in title 38, U.S.C.
    Committee Bill. Section 2(a) of the Committee bill would 
amend section 101 of title 38, U.S.C., to define ``agency of 
original jurisdiction'' as ``the activity which entered the 
original determination with regard to a claim for benefits 
under laws administered by the Secretary''; to define 
``relevant evidence'' as ``evidence that tends to prove or 
disprove a matter in issue''; and to define ``supplemental 
claim'' as ``a claim for benefits under laws administered by 
the Secretary filed by a claimant who had previously filed a 
claim for the same or similar benefits on the same or similar 
basis.''

Sec. 2(b). Notice regarding claims.

    Section 2(b) of the Committee bill would modify VA's duty 
to notify, so that VA would not need to notify a claimant of 
the information or evidence necessary to substantiate his or 
her claim for benefits, if the individual received a decision 
on that claim within the past year by the agency of original 
jurisdiction or the Board.
    Background. Section 5103(a) of title 38, U.S.C., requires 
VA to provide notice to a claimant of the information or 
evidence necessary to substantiate the individual's claim for 
benefits. VA is required to prescribe by regulation the content 
of the notice that will be provided for an original claim, a 
claim for reopening, or a claim for increase.
    Committee Bill. Section 2(b) of the Committee bill would 
amend section 5103(a) of title 38, U.S.C., to provide that VA 
does not need to provide that notice with respect to a 
supplemental claim that is filed on or before 1 year after the 
agency of original jurisdiction issues a decision or on or 
before 1 year after the Board issues a decision. Section 2(b) 
of the Committee bill also would delete the references in 
section 5103(a) of title 38, U.S.C., to a claim for reopening 
and claim for an increase and instead add a reference to 
supplemental claims, because all claims other than original 
claims would be called supplemental claims under the new 
appeals system.

Sec. 2(c). Modification of rule regarding disallowed claims.

    Section 2(c) of the Committee bill would make conforming 
changes to section 5103A of title 38, U.S.C.
    Background. Under section 5108 of title 38, U.S.C., if a 
claim has been disallowed, VA must reopen the claim and review 
the prior disposition if the claimant submits new and material 
evidence with respect to the claim. Also, under section 5103A 
of title 38, U.S.C., VA has a duty to assist claimants in 
obtaining evidence needed to substantiate a claim for VA 
benefits. Under subsection 5103A(f) of title 38, U.S.C., that 
duty does not require VA to reopen a previously disallowed 
claim unless new and material evidence has been presented or 
secured with respect to the claim.
    Committee Bill. Section 2(c) of the Committee bill would 
amend section 5103A(f) of title 38, U.S.C., to omit the 
reference to reopening, because all claims other than original 
claims would be called supplemental claims under the new 
appeals system. It also would change the words ``new and 
material'' to ``new and relevant'' to reflect the modifications 
made by section 2(i) of the Committee bill, which specifies 
that a supplemental claim would need new and relevant evidence, 
rather than new and material evidence, to be readjudicated.

Sec. 2(d). Modification of duty to assist claimants.

    Section 2(d) of the Committee bill would amend section 
5103A of title 38, U.S.C., to provide that duty to assist 
functions would be carried out by the agency of original 
jurisdiction.
    Background. Under section 5103A of title 38, U.S.C., VA has 
a duty to assist claimants in obtaining evidence needed to 
substantiate a claim for VA benefits. Generally, that duty 
applies throughout the appeals process at VBA and the Board.
    Committee Bill. Section 2(d) of the Committee bill would 
amend section 5103A of title 38, U.S.C., to add a new 
subsection (e)(1) providing that the duty to assist will apply 
only to a claim or supplemental claim until the time a claimant 
is provided notice of the decision of the agency of original 
jurisdiction with respect to the claim. It would add a new 
subsection (e)(2) specifying that the duty to assist would not 
apply to higher-level review (as added by section 2(g) of the 
Committee bill) or to review on appeal by the Board.
    Section 2(d) of the Committee bill would amend section 
5103A of title 38, U.S.C., to add a new subsection (f)(1) 
specifying that, if a higher-level adjudicator identifies or 
learns of an error on the part of the agency of original 
jurisdiction to satisfy its duty to assist and that error 
occurred prior to the agency of original jurisdiction decision, 
the higher-level adjudicator must return the claim for 
correction of the error and readjudication, unless the 
Secretary may award the maximum benefit in accordance with 
title 38, U.S.C., based on the evidence of record.
    Section 2(d) of the Committee bill would amend section 
5103A of title 38, U.S.C., to add a new subsection (f)(2)(A) 
specifying that, if the Board identifies or learns of an error 
on the part of the agency of original jurisdiction to satisfy 
the duty to assist and that error occurred prior to the agency 
of original jurisdiction decision on appeal, the Board must 
remand the claim to the agency of original jurisdiction for 
correction of the error, unless the Secretary may award the 
maximum benefit in accordance with title 38, U.S.C., based on 
the evidence of record.
    Section 2(d) of the Committee bill would amend section 
5103A of title 38, U.S.C., to add a new subsection (f)(2)(B) 
specifying that remand for correction of a duty to assist error 
may include directing the regional office to obtain an advisory 
medical opinion.
    Finally, section 2(d) of the Committee bill would amend 
section 5103A of title 38, U.S.C., to include a new subsection 
(f)(3) specifying that nothing in this modified portion of 
section 5103A of title 38, U.S.C., shall be construed to imply 
that VA does not have a duty to correct a duty to assist error 
that was erroneously not identified during higher-level review 
or during review on appeal to the Board.
    Given that the bill would narrow the timeframe during which 
the duty to assist would apply, it is the Committee's 
expectation that VA will place greater emphasis on correctly 
fulfilling the duty to assist at the regional offices and will 
aggressively seek to detect and correct duty to assist errors 
during later review.

Sec. 2(e). Decisions and notices of decisions.

    Section 2(e) of the Committee bill would require VA to 
enhance the information included in notifications of decisions 
on claims for benefits.
    Background. Under section 5104(a) of title 38, U.S.C., when 
VA makes a decision affecting the provision of benefits to a 
claimant, VA must provide the claimant and his or her 
representative with notice of the decision. Under section 
5104(b) of title 38, U.S.C., in any case where VA denies the 
benefit sought, that notice must include a statement of the 
reasons for the decision and a summary of the evidence 
considered by VA.
    Committee Bill. Section 2(e) of the Committee bill would 
amend section 5104(b) of title 38, U.S.C., to specify that each 
notice provided under section 5104(a) must include all of the 
following: Identification of the issues adjudicated; a summary 
of the evidence considered by VA; a summary of applicable laws 
and regulations; identification of findings favorable to the 
claimant; in the case of a denial, identification of elements 
not satisfied leading to the denial; an explanation of how to 
obtain or access evidence used in making the decision; and, if 
applicable, identification of the criteria that must be 
satisfied to grant service connection or the next higher level 
of compensation.

Sec. 2(f). Binding nature of favorable findings.

    Section 2(f) of the Committee bill would add a new section 
to title 38, U.S.C., outlining the circumstances under which a 
favorable finding by one VA adjudicator will be binding on 
other VA adjudicators.
    Background. Generally, if multiple VA adjudicators in 
succession make decisions on a claim for benefits, they are not 
bound by factual findings made by prior adjudicators.
    Committee Bill. Section 2(f) of the Committee bill would 
add a new section 5104A to title 38, U.S.C., providing that any 
finding favorable to the claimant will be binding on all 
subsequent adjudicators within VA, unless clear and convincing 
evidence is shown to the contrary to rebut the favorable 
finding.

Sec. 2(g). Higher-level review by agency of original jurisdiction.

    Section 2(g) of the Committee bill would add a new section 
5104B to title 38, U.S.C., outlining the new higher-level 
review option for an individual who is not satisfied with VA's 
initial decision on his or her claim for benefits.
    Background. Under the new appeals system, one of the 
options available to an individual who is dissatisfied with 
VA's initial decision on a claim for benefits would be to seek 
higher-level review by the agency of original jurisdiction.
    Committee Bill. Section 2(g) of the Committee bill would 
add a new section 5104B to title 38, U.S.C., outlining the new 
higher-level review process.
    New subsection 5104B(a) of title 38, U.S.C., would provide 
that a claimant may request review of the decision of the 
agency of original jurisdiction by a higher-level adjudicator 
within the agency of original jurisdiction. VA would be 
required to approve each request for review.
    New subsection 5104B(b) of title 38, U.S.C., would provide 
that a request for higher-level review must be in writing in 
such form as the Secretary of Veterans Affairs may prescribe 
and be made within 1 year of the notice of the agency of 
original jurisdiction's decision. The claimant may request that 
the review be conducted by a higher-level adjudicator at the 
same office or by an adjudicator at a different office. VA 
could not deny a request for review by an adjudicator at a 
different office without good cause.
    New subsection 5104B(c) of title 38, U.S.C., would provide 
that notice of a higher-level review decision must be provided 
in writing and must include a general statement reflecting 
whether evidence was not considered because it was received 
after the initial decision and noting the options available to 
have the new evidence considered by VA.
    New subsection 5104B(d) of title 38, U.S.C., would provide 
that the evidentiary record before the higher-level adjudicator 
will be limited to the evidence of record in the agency of 
original jurisdiction decision being reviewed.
    New subsection 5104B(e) of title 38, U.S.C., would provide 
that review by the higher-level adjudicator will be de novo.

Sec. 2(h). Options following decision by agency of original 
        jurisdiction.

    Section 2(h) of the Committee bill would outline the 
options available under the new appeals system for an 
individual who is not satisfied with VA's initial decision on 
his or her claim for benefits.
    Background. Under the new appeals system, individuals who 
are dissatisfied with VA's initial decision on a claim would 
have the option to seek higher-level review by the agency of 
original jurisdiction; to file a supplemental claim with the 
agency of original jurisdiction; or to appeal to the Board.
    Committee Bill. Section 2(h) of the Committee bill would 
add a new section 5104C to title 38, U.S.C., providing in 
subsection (a)(1) that a claimant may take any of the following 
actions within the year after the agency of original 
jurisdiction issues a decision: File a request for higher-level 
review, file a supplemental claim, or file a notice of 
disagreement. New section 5104C(a)(2)(A) would provide that, 
once a claimant takes one of those actions, the claimant may 
not take another one of those actions with respect to that 
claim or the same issue contained within the claim until the 
higher-level review, supplemental claim, or notice of 
disagreement is adjudicated or the claimant withdraws the 
request for higher-level review, supplemental claim, or notice 
of disagreement.
    New section 5104C(a)(2)(B) and (C) of title 38, U.S.C., 
would provide that nothing in subsection (a) will prohibit a 
claimant from taking any of the actions in succession with 
respect to a claim or an issue contained within the claim and 
that nothing in that subsection will prohibit a claimant from 
taking different actions simultaneously with respect to 
different claims or different issues contained within a claim.
    New section 5104C(a)(2)(D) of title 38, U.S.C., would 
provide that VA may develop and implement a policy for 
claimants who take one of the above actions and want to 
withdraw that action before it has been acted on by VA and to 
instead take a different action.
    Finally, new section 5104C(b) of title 38, U.S.C., would 
provide that, if more than 1 year has passed since VA issued 
its decision on a claim, the claimant may file a supplemental 
claim.

Sec. 2(i). Supplemental claims.

    Section 2(i) of the Committee bill would amend section 5108 
of title 38, U.S.C., to lower the evidentiary threshold for 
having a claim readjudicated after it has been disallowed by 
VA.
    Background. Under section 5108 of title 38, U.S.C., if a 
claim has been disallowed, VA must reopen the claim and review 
the prior disposition if the claimant submits new and material 
evidence with respect to the claim. Pursuant to section 
3.159(c) of title 38, Code of Federal Regulations, VA will 
provide a limited duty to assist with respect to a claim to 
reopen in order to help the claimant obtain new and material 
evidence. That limited duty includes assisting the claimant in 
obtaining from Federal agencies or from sources other than 
Federal agencies existing records that are reasonably 
identified by the claimant. See 66 Fed. Reg. 45,620, 45,628 
(2001).
    The draft legislation submitted to Congress by VA proposed 
to change the ``new and material'' standard to ``new and 
relevant.'' Several stakeholders have expressed concern that 
the ``new and relevant'' standard could be construed as setting 
a higher evidentiary threshold than the current ``new and 
material'' standard. For example, in testimony provided for a 
hearing before the House Committee on Veterans' Affairs 
regarding the companion bill to S. 1024, Vietnam Veterans of 
America stated that they have ``significant concern that VA is 
intending to make this definition more restrictive than what 
was promised to stakeholders during negotiations.'' In 
addition, some stakeholders have expressed concern about the 
timeframe for duty to assist ending after a decision by the 
agency of original jurisdiction. For example, Military-Veterans 
Advocacy provided this testimony for the Committee's May 17, 
2017, legislative hearing:

        S. 1024 continues to strip the duty to assist from the 
        veteran after the initial decision. As attorneys are 
        not able to provide paid representation until after the 
        initial decision, this measure effectively eliminates 
        any ability to supplement the record.
        * * * While inadequate at best, the duty to assist 
        allows the attorney some latitude to obtain records to 
        prepare the case. Without the duty to assist, the 
        attorney will be required to rely upon the Freedom of 
        Information Act. This will not only result in costs 
        being attributed to the veteran but result in undue 
        delay.

    Committee Bill. Section 2(i)(1) of the Committee bill would 
amend section 5108 of title 38, U.S.C., to provide that, if new 
and relevant evidence is presented or secured with respect to a 
supplemental claim, VA must readjudicate the claim taking into 
consideration all of the evidence of record. That would include 
any evidence submitted prior to the former disposition of the 
claim, as well as additional evidence received before the 
readjudication occurs.
    In light of feedback from stakeholders, section 2(i)(1) of 
the Committee bill makes clear that, with respect to 
supplemental claims, VA will have an obligation to assist a 
claimant in obtaining existing records even if the claimant has 
not yet submitted new and relevant evidence. Specifically, 
section 2(i)(1) of the Committee bill would add a new 
subsection (b) to section 5108 of title 38, U.S.C., providing 
that if a claimant, in connection with a supplemental claim, 
reasonably identifies existing records, whether or not the 
records are in the custody of the Federal government, VA will 
assist the claimant in obtaining those records in accordance 
with the duty to assist provisions set forth in section 5103A 
of title 38, U.S.C. This is intended to ensure that, even after 
an initial decision on a claim, a claimant will have access to 
VA's duty to assist in obtaining additional records.
    In light of feedback from stakeholders, section 2(i)(2) of 
the Committee bill includes a rule of construction specifying 
that section 5108 of title 38, U.S.C., as amended by this bill, 
shall not be construed to impose a higher evidentiary threshold 
than the ``new and material'' evidentiary standard that was in 
section 5108 prior to the changes made by this bill.

Sec. 2(j). Remand to obtain advisory medical opinion.

    Section 2(j) of the Committee bill would require the Board 
to remand a case to obtain an independent medical opinion if 
the agency of original jurisdiction should have exercised its 
discretion to obtain such an opinion.
    Background. Under section 5109(a) of title 38, U.S.C., if, 
in the judgment of the Secretary, expert medical opinion in 
addition to that available within VA is warranted by the 
medical complexity or controversy involved in a case, VA may 
secure an advisory medical opinion from one or more independent 
medical experts who are not employees of VA.
    Committee Bill. Section 2(j) of the Committee bill would 
add a new subsection (d) to section 5109 of title 38, U.S.C., 
providing that the Board shall remand a claim to direct the 
agency of original jurisdiction to obtain an advisory medical 
opinion from an independent medical expert if the Board finds 
that VBA should have exercised its discretion to obtain such an 
opinion. The Board's remand instructions must include the 
questions to be posed to the independent medical expert.

Sec. 2(k). Restatement of requirement for expedited treatment of 
        returned or remanded claims.

    Section 2(k) of the Committee bill, in order to reflect the 
options under the new appeals system, would make technical 
changes to the requirement that VA provide expedited treatment 
of remanded claims.
    Background. Under section 5109B of title 38, U.S.C., VA is 
required to take such actions as may be necessary to provide 
for the expeditious treatment by the appropriate regional 
office of any claim that is remanded to a regional office by 
the Board.
    Committee Bill. Section 2(k) of the Committee bill would 
amend section 5109B of title 38, U.S.C., to provide that VA 
must take such actions as may be necessary to provide for the 
expeditious treatment by VBA of any claim that is returned by a 
higher-level adjudicator or remanded by the Board.

Sec. 2(l). Effective dates of awards.

    Section 2(l) of the Committee bill would amend section 5110 
of title 38, U.S.C., to establish the effective date of an 
award of benefits.
    Background. Under section 5110 of title 38, U.S.C., the 
effective date of an award of benefits is generally no earlier 
than the date of receipt of the application that resulted in 
the award of benefits.
    The draft legislation submitted to Congress by VA would 
provide that the date of application would be considered the 
date of filing the initial application for a benefit if an 
individual who is dissatisfied with a decision, within 1 year 
of a decision, seeks a higher-level review, files a 
supplemental claim, files an appeal to the Board, or files a 
supplemental claim after a Board decision. Further, the 
effective date would be preserved if the individual 
continuously pursues a new option to be reviewed at VA under 
the new appeals system within 1 year of the latest decision.
    Stakeholders have expressed concern that the draft language 
did not preserve the effective date if a claimant files a 
supplemental claim after a decision from the Court of Appeals 
for Veterans Claims (hereinafter, ``CAVC'' or ``Court''). For 
example, in testimony provided for a hearing before this 
Committee on May 24, 2016, regarding a discussion draft bill 
based on VA's draft, Veterans of Foreign Wars stated,

        This proposal is designed to significantly reduce the 
        impact of the CAVC on claims processing with VA by 
        discouraging veterans from appealing to the Court. To 
        ensure that veterans are not discouraged from appealing 
        to the CAVC, we urge Congress to amend this proposal to 
        allow claimants to submit new evidence within 1 year of 
        a CAVC decision.

    Committee Bill. Section 2(l) of the Committee bill would 
amend section 5110 of title 38, U.S.C., to provide that the 
date of application will be considered the date of filing the 
initial application for a benefit if the claim is continuously 
pursued by filing any of the following, either alone or in 
succession: a request for higher-level review on or before the 
date 1 year after the date on which the agency of original 
jurisdiction issues a decision, a supplemental claim on or 
before the date 1 year after the date on which the agency of 
original jurisdiction issues a decision, a notice of 
disagreement on or before the date 1 year after the date on 
which the agency of original jurisdiction issues a decision, a 
supplemental claim on or before the date 1 year after the date 
on which the Board issues a decision, and a supplemental claim 
on or before the date 1 year after the date on which the Court 
of Appeals for Veterans Claims issues a decision.
    Section 2(l) of the Committee bill would amend section 5110 
to further provide that, for supplemental claims received more 
than 1 year after the agency of original jurisdiction issued a 
decision or the Board of Veterans' Appeals issued a decision, 
the effective date will be fixed in accordance with facts found 
but will not be earlier than the date of receipt of the 
supplemental claim.
    In light of stakeholder input and in an effort to preserve 
judicial review, the Committee bill includes the protection of 
the effective date if an individual files a supplemental claim 
within 1 year after a decision from the Court.

Sec. 2(m). Definition of award or increased award for purposes of 
        provisions relating to commencement of period of payment.

    Section 2(m) of the Committee bill would make a technical 
conforming change to section 5111 of title 38, U.S.C.
    Background. Section 5111 of title 38, U.S.C., sets forth 
the criteria for when payment of monetary benefits will begin 
based on a successful claim, including a reopened claim.
    Committee Bill. Section 2(m) of the Committee bill would 
make a technical change by inserting ``supplemental claim'' 
rather than ``reopened,'' because all claims other than 
original claims would be called supplemental claims under the 
new appeals system.

Sec. 2(n). Modification of limitation on fees allowable for 
        representation.

    Section 2(n) of the Committee bill would amend section 5904 
of title 38, U.S.C., to allow paid representation after VA's 
initial decision on a claim for benefits.
    Background. Under section 5904 of title 38, U.S.C., an 
attorney generally may not charge a fee for services provided 
in connection with a claim for VA benefits until the claimant 
files a notice of disagreement appealing VA's decision on the 
claim.
    Committee Bill. Section 2(n) of the Committee bill would 
amend section 5904 of title 38, U.S.C., to provide that a fee 
could not be charged until after the claimant is provided 
notice of the agency of original jurisdiction's initial 
decision on the claim.

Sec. 2(o). Clarification of Board of Veterans' Appeals referral 
        requirements after order for reconsideration of decisions.

    Section 2(o) of the Committee bill would make a technical 
conforming change to section 7103 of title 38, U.S.C.
    Background. Section 7103 of title 38, U.S.C., provides that 
a decision of the Board is final unless the Chairman of the 
Board orders reconsideration of the decision.
    Committee Bill. Section 2(o) of the Committee bill would 
make a technical conforming change to section 7103 of title 38, 
U.S.C., by changing the word ``heard'' to ``decided'' in two 
places.

Sec. 2(p). Conforming amendment relating to readjudication.

    Section 2(p) of the Committee bill would make a technical 
conforming change to section 7104 of title 38, U.S.C.
    Background. Section 7104 of title 38, U.S.C., outlines the 
jurisdiction of the Board.
    Committee Bill. Section 2(p) of the Committee bill would 
make a technical conforming change to section 7104(b) of title 
38, U.S.C., by changing the word ``reopened'' to 
``readjudicated.''

Sec. 2(q). Modification of procedures for appeals to Board of Veterans' 
        Appeals.

    Section 2(q) of the Committee bill would amend section 7105 
of title 38, U.S.C., to modify the procedures for appealing to 
the Board, including eliminating several steps from the current 
process.
    Background. Under section 7105 of title 38, U.S.C., 
appellate review of an agency of original jurisdiction decision 
is initiated by filing a notice of disagreement within 1 year 
from mailing of notice of the initial determination and the 
appeal is completed by filing a substantive appeal after VA 
issues a statement of the case. The notice of disagreement must 
be filed with the regional office. After the notice of 
disagreement is filed, the agency of original jurisdiction is 
required to take such development or review action as it deems 
proper and, if those actions do not resolve the disagreement 
(by granting the benefit or withdrawal of the appeal), the 
regional office prepares the statement of the case. If any 
evidence is submitted by the appellant with or after a 
substantive appeal, the Board may review the evidence in the 
first instance unless the appellant requests review by the 
regional office. Section 7105 of title 38, U.S.C., further 
provides that, if a notice of disagreement is not filed in 
accordance with chapter 38, U.S.C., within the required 
timeframe, the decision will become final and will not be 
reopened or allowed except pursuant to regulations that are not 
inconsistent with title 38, U.S.C.
    The draft legislation submitted to Congress by VA would 
require the appellant to identity in the notice of disagreement 
the specific determination with which the appellant disagrees 
and would authorize the Board to dismiss an appeal that fails 
to do so, but the draft did not specify whether an appellant 
would have an opportunity to clarify or correct the information 
listed in the notice of disagreement after it has been filed. 
Stakeholders have expressed concern that an appeal could be 
dismissed without giving an appellant the opportunity to cure 
any deficiency in the notice of disagreement. For example, in 
testimony provided for a May 2, 2017, hearing before the House 
Committee on Veterans' Affairs regarding the companion bill to 
S. 1024, Vietnam Veterans of America stated:

        If a veteran files a proper [notice of disagreement], 
        but VA needs additional clarification, VA should 
        request clarification and not ``dismiss'' the appeal. 
        By filing a [notice of disagreement], clearly the 
        veteran disagrees with something in the initial 
        decision; policies should be implemented to assist the 
        veteran in completing his appeal, not end it.

    Committee Bill. Section 2(q) of the Committee bill would 
rewrite section 7105 of title 38, U.S.C., to eliminate the 
requirements for a substantive appeal and statement of the 
case. It would also eliminate the requirement for the agency of 
original jurisdiction to take development or review action 
following the filing of a notice of disagreement and delete the 
provision regarding the Board considering evidence in the first 
instance.
    Specifically, section 2(q) of the Committee bill would 
strike from subsection 7105(a) of title 38, U.S.C., the 
requirement that an appellant file a substantive appeal after a 
statement of the case is furnished and would provide that 
appellate review will be initiated by filing a notice of 
disagreement in the form prescribed by the Secretary.
    Section 7105(b) of title 38, U.S.C., as rewritten by 
section 2(q) of the Committee bill, would provide that a notice 
of disagreement shall be filed within 1 year from the date of 
mailing of notice of the decision of the agency of original 
jurisdiction pursuant to section 5104, new section 5104B, or 
revised section 5108 of title 38, U.S.C.
    Section 7105(b) of title 38, U.S.C., would further provide 
that the notice of disagreement shall be in writing and shall 
identify the specific determination with which the claimant 
disagrees. The notice of disagreement must be filed with the 
Board and must specify if the claimant requests a hearing 
before the Board, which will include an opportunity to submit 
evidence; an opportunity to submit additional evidence without 
a hearing; or a review by the Board without a hearing and 
without submission of evidence.
    In light of stakeholder input, section 7105(b) of title 38, 
U.S.C., as rewritten by section 2(q) of the Committee bill, 
would provide that VA shall develop a policy to permit a 
claimant to modify the information identified in the notice of 
disagreement after it has been filed.
    Section 7105(c) of title 38, U.S.C., as rewritten by 
section 2(q) of the Committee bill, would provide that, if a 
notice of disagreement is not filed in accordance with title 
38, U.S.C., within the required time, the decision of the 
agency of original jurisdiction will become final and the claim 
will not thereafter be readjudicated or allowed except, in the 
case of a readjudication or allowance pursuant to higher-level 
review that was requested in accordance with section 5104B of 
title 38, U.S.C., as added by section 2(g) of the Committee 
bill; as may otherwise be provided in section 5108 of title 38, 
U.S.C.; or as may otherwise be provided in regulations 
consistent with title 38, U.S.C.
    Section 7105(d) of title 38, U.S.C., as rewritten by 
section 2(q) of the Committee bill, also would provide that the 
Board may dismiss any appeal that fails to identify the 
specific determination with which the claimant disagrees.

Sec. 2(r). Modification of procedures and requirements for 
        simultaneously contested claims.

    Section 2(r) of the Committee bill would make conforming 
changes to section 7105A of title 38, U.S.C.
    Background. Section 7105A of title 38, U.S.C., outlines the 
procedures for appeals with respect to simultaneously contested 
claims.
    Committee Bill. Section 2(r) of the Committee bill would 
make conforming technical amendments to section 7105A of title 
38, U.S.C., to reflect the steps of the appeals process that 
would be eliminated by section 2(q) of the Committee bill.

Sec. 2(s). Repeal of procedures for administrative appeals.

    Section 2(s) of the Committee bill would delete an obsolete 
provision from title 38, U.S.C.
    Background. Section 7106 of title 38, U.S.C., outlines the 
process for an administrative appeal, a process that is not 
currently utilized by VA.
    Committee Bill. Section 2(s) of the Committee bill would 
delete section 7106 of title 38, U.S.C., the obsolete provision 
regarding administrative appeals.

Sec. 2(t). Modifications relating to appeals; dockets; hearings.

    Section 2(t) of the Committee bill would amend section 7107 
of title 38, U.S.C., to outline the dockets that would be used 
by the Board under the new appeals system.
    Background. Under section 7107 of title 38, U.S.C., each 
case received at the Board is generally considered in docket 
order. A hearing before the Board may be provided in-person at 
the Board's principal office in Washington, DC; in-person at a 
regional office; or through video conferencing at a regional 
office.
    The proposed legislation drafted by VA would create two 
separate dockets to be used by the Board under the new appeals 
system, one called the hearing option docket and the other the 
non-hearing option docket. Under VA's proposal, the Board would 
place on the hearing docket cases in which an appellant 
requests a hearing, as well as cases in which the appellant 
wishes to submit evidence and does not wish to have a hearing. 
VA proposed to use the other docket for cases with no hearing 
request and no new evidence, which according to VA would allow 
the Board to provide feedback to the regional offices regarding 
cases that were decided by the Board on the same evidentiary 
record as the regional office decision.
    However, testimony from the Committee's May 17, 2017, 
hearing reflects that there is no support among stakeholders 
for placing on the hearing option docket cases in which no 
hearing is requested but the appellant wishes to submit 
evidence. For example, Disabled American Veterans testified 
that, under VA's proposal, ``veterans who submit new evidence, 
but do not request a hearing, could be forced to wait months or 
even years behind veterans who request a hearing.'' In 
addition, Military Officers Association of America provided 
this input:

        The VA has expressed concerns that including claimants 
        with additional evidence amongst those without 
        additional evidence on the same docket would confuse 
        the ``feedback loop,'' but we believe this is 
        manageable. The feedback loop permits the [B]oard to 
        provide input to the [agency of original jurisdiction] 
        regarding errors the [agency of original jurisdiction] 
        committed in the original adjudication of the claim. 
        There appears to be no reason, however, the Board could 
        not simply exclude the claims with additional evidence 
        from the feedback loop and still provide very useful 
        feedback to the [agency of original jurisdiction] from 
        the remaining claims.

    Additionally, in testimony provided for a May 2, 2017, 
hearing before the House Committee on Veterans' Affairs 
regarding the companion bill to S. 1024, Vietnam Veterans of 
America stated:

        [Vietnam Veterans of America] believes veterans that do 
        not want a hearing, but wish to submit additional 
        evidence should not be required to choose the hearing 
        docket. Again, the bill is penalizing a veteran for 
        exercising his right to add evidence to the record. 
        [Vietnam Veterans of America] believes veterans wishing 
        to only add additional evidence should be able to 
        choose the non-hearing docket.

    Stakeholders also raised concerns that appellants should be 
able to change dockets after the initial selection. For 
example, the National Organization of Veterans' Advocates 
provided this testimony for the Committee's May 17, 2017, 
hearing:

        It should be made clear that a veteran can move into 
        the non-hearing docket without penalty--with the same 
        or more favorable docket number--if he determines he no 
        longer wants a hearing after the initial request.

    Committee Bill. In light of the feedback noted above, the 
Committee bill would permit VA to create a third docket for 
cases in which evidence is submitted but no hearing is 
requested or to include these cases on a docket with cases in 
which no evidence is submitted and no hearing takes place, but 
it would not permit VA to include those cases on the hearing 
docket. Specifically, section 2(t) of the Committee bill would 
amend section 7107(a) of title 38, U.S.C., to provide that the 
Board will maintain at least two separate dockets and may not 
maintain more than two unless the Board notifies the Senate and 
House Committees on Veterans' Affairs. The Board may assign to 
each docket such cases as the Board considers appropriate, 
except that the Board may not assign to the docket for cases in 
which a Board hearing is requested any cases where there is no 
request for a hearing. It is the view of the Committee that the 
Board should separately track outcomes of cases in which no 
hearing takes place and no evidence is submitted, in order to 
provide appropriate feedback to the regional offices.
    Section 2(t) of the Committee bill would further amend 
section 7107(a) of title 38, U.S.C., to provide that each case 
before the Board will be decided in regular order according to 
its respective place on one of the dockets, unless it is 
advanced on the docket under section 7107(b) of title 38, 
U.S.C., as amended by this section of the Committee bill.
    Section 2(t) of the Committee bill would amend section 
7107(b) of title 38, U.S.C., to provide that, as under current 
law, a case on any docket may be advanced for cause shown. A 
motion to advance the case may be granted only if the case 
involves interpretation of law of general application affecting 
other veterans; the appellant is seriously ill or under severe 
financial hardship; or other sufficient cause is shown.
    Section 2(t) of the Committee bill would amend section 
7107(c) of title 38, U.S.C., to provide that, if a Board 
hearing is requested, it will be provided either at the Board's 
principal location in Washington, DC, or through video 
conferencing. In-person field hearings at the regional offices 
would no longer be an option. Upon notification of a hearing in 
Washington, DC, the appellant may request a video conference 
hearing instead and the Board must grant that request. Upon 
notification of a video conference hearing, the appellant may 
request a hearing in Washington, DC, instead and the Board must 
grant that request.
    Section 2(t) of the Committee bill would amend section 
7107(d) of title 38, U.S.C., to provide that nothing in revised 
section 7107 of title 38, U.S.C., shall be construed to 
preclude the screening of cases for purposes of determining the 
adequacy of the record for decisional purposes or development 
of a record found to be inadequate.
    In light of stakeholder input, section 2(t) of the 
Committee bill would amend section 7107(e) of title 38, U.S.C., 
to provide that VA shall develop and implement a policy 
allowing an appellant to move his or her case from one docket 
to another at the Board.

Sec. 2(u). Repeal of certain authority for independent medical 
        opinions.

    Section 2(u) of the Committee bill would repeal section 
7109 of title 38, U.S.C., which authorizes the Board to obtain 
independent medical opinions.
    Background. Under section 7109 of title 38, U.S.C., the 
Board may obtain an independent medical opinion if warranted in 
a particular case.
    Committee Bill. Section 2(u) of the Committee bill would 
delete section 7109 of title 38, U.S.C., removing the Board's 
authority to request independent medical opinions, other than 
as outlined in section 5109 of title 38, U.S.C., as amended by 
section 2(j) of the Committee bill.

Sec. 2(v). Clarification of procedures for review of decisions on 
        grounds of clear and unmistakable error.

    Section 2(v) of the Committee bill would make a technical 
conforming change to section 7111 of title 38, U.S.C.
    Background. Section 7111 of title 38, U.S.C., provides that 
a decision of the Board is subject to revision based on clear 
and unmistakable error.
    Committee Bill. Section 2(v) of the Committee bill would 
make a technical conforming change to section 7111 of title 38, 
U.S.C.

Sec. 2(w). Evidentiary record before Board of Veterans' Appeals.

    Section 2(w) of the Committee bill would add a new section 
7113 to title 38, U.S.C., outlining the evidentiary record that 
will be considered by the Board and would amend section 7104 of 
title 38, U.S.C., to require the Board to note in its decision 
if evidence was not considered as a result of new section 7113 
of title 38, U.S.C.
    Background. Generally, under section 20.1304 of title 38, 
Code of Federal Regulations, an appellant is notified that he 
or she may submit evidence to the Board during the 90-day 
period following the appeal being certified to the Board. An 
appellant also may submit evidence outside that window if good 
cause is shown; may submit evidence during or in certain 
circumstances after a hearing before the Board; and may submit 
evidence in response to evidence obtained by the Board.
    Under section 7104(d) of title 38, U.S.C., each decision of 
the Board is required to include a written statement of the 
Board's findings and conclusions as well as the reasons or 
bases for the Board's findings and conclusions.
    Committee Bill. Section 2(w) of the Committee bill would 
add a new section 7113 to title 38, U.S.C., providing in 
subsection (a) that, if a hearing before the Board is not 
requested in the notice of disagreement and no request was made 
to submit evidence, the evidentiary record before the Board 
will be limited to the evidence of record at the time of the 
decision of the agency of original jurisdiction on appeal.
    Subsection (b) of new section 7113 of title 38, U.S.C., 
would provide that, for cases in which a hearing is requested 
in the notice of disagreement, the evidentiary record before 
the Board will be limited to the evidence of record at the time 
of the decision of the agency of original jurisdiction on 
appeal. However, the record will also include evidence 
submitted by the appellant and his or her representative at the 
Board hearing and evidence submitted by the appellant and his 
or her representative within 90 days following the Board 
hearing.
    Subsection (c) of new section 7113 of title 38, U.S.C., 
would provide that, for cases in which a hearing is not 
requested but the appellant requested an opportunity to submit 
evidence, the evidentiary record before the Board will include 
evidence submitted by the appellant and his or her 
representative with the notice of disagreement and evidence 
submitted by the appellant and his or her representative within 
90 days following receipt of the notice of disagreement.
    Section 2(w) of the Committee bill also would amend section 
7104(d) of title 38, U.S.C., to provide that the Board in its 
decision must include a general statement reflecting whether 
evidence was not considered in making the decision because it 
was received at a time not permitted under new section 7113 of 
title 38, U.S.C., and noting the options available for having 
the evidence considered by VA.
    The Committee stresses that limiting the windows for 
submitting evidence is in no way meant to alter the veteran-
friendly nature of the VA claims and appeals process. The 
Committee intends and expects that VA will develop robust 
policies for addressing evidence submitted during timeframes 
not contemplated by the new appeals framework and will ensure 
that appellants are made fully aware of what actions they would 
need to take to have that evidence considered by VA 
adjudicators. The Committee, in part through the reporting 
requirements in section 5(1)(T) of the Committee bill, intends 
to closely monitor VA's actions in response to evidence that 
arrives during incorrect timeframes to determine if additional 
changes to this law are required to ensure it is being 
implemented in a veteran-friendly manner.

Sec. 2(x). Applicability.

    Section 2(x) of the Committee bill outlines the timeline 
and requirements in order for the new appeals system to go into 
effect and which cases would be handled under the new appeals 
system.
    Background. On March 23, 2017, GAO released a report--
entitled VA Disability Benefits: Additional Planning Would 
Enhance Efforts to Improve the Timeliness of Appeals 
Decisions--on VA's efforts to improve timeliness for resolving 
appeals relating to disability claims, including the proposal 
put forward in 2016 to comprehensively reform the disability 
claims appeals process and VA's plans to implement a new 
appeals system if that proposal is enacted. GAO found that VA 
does not have data to be able to identify the root cause of 
delays under the current appeals process; it is not clear if VA 
will be able to determine whether a new appeals process reduces 
``churning'' of cases between different levels of review at VA, 
which VA believes is a significant problem with the current 
process; GAO believes pilot programs to test the concepts 
involved in appeals reform would help detect and correct 
problems with the new process before it is rolled out 
nationally; there are inadequacies in VA's plans for 
implementing a new appeals process, for upgrading information 
technology systems, and for hiring more staff; and VA does not 
have a good plan for how it would measure whether a new appeals 
system is a success. Based on all of those findings, GAO 
believes that VA risks undermining the efficiencies and goals 
of the planned reforms.
    Committee Bill. Section 2(x)(1) of the Committee bill, in a 
freestanding provision, would provide that the changes made by 
section 2 of the Committee bill shall apply to claims for which 
a notice of decision is provided by VA on or after the later of 
540 days after enactment and 30 days after VA submits to 
Congress a certification that the Secretary confirms, without 
delegation, that VA has the resources, personnel, office space, 
procedures, and information technology required to carry out 
the new appeals system and to timely address legacy appeals and 
appeals under the new system. The certification must include a 
summary of the expected performance outcomes with respect to 
legacy appeals that the Secretary used in making that 
certification and a comparison of those expected outcomes to 
the performance outcomes prior to the new appeals system taking 
effect.
    Section 2(x)(2) of the Committee bill would provide that, 
in determining whether and when to make that certification, VA 
shall collaborate with, partner with, and give weight to the 
advice of veterans organizations and such other stakeholders as 
the Secretary considers appropriate.
    Section 2(x)(3) of the Committee bill would provide that VA 
may apply the new appeals system to claims that receive a 
decision after enactment of the bill but before the effective 
date of the new system, if the claimant elects to subject the 
claim to the new system.
    Section 2(x)(4) of the Committee bill would provide that VA 
may begin implementation of the new appeals system in phases 
beginning on the effective date of the new system.
    Section 2(x)(5) of the Committee bill would provide that, 
for legacy claims, claimants who receive a statement of the 
case or supplemental statement of the case after the effective 
date of the new system may elect to participate in the new 
system.
    Section 2(x)(6) of the Committee bill would provide that VA 
would be required to publish in the Federal Register the 
effective date of the new system.
    By providing VA with the authority to phase in the new 
appeals system and to delay the effective date of the new 
system until VA is fully prepared to begin parallel processing 
under the new and legacy systems, it is the Committee's intent 
to provide VA with tools to ensure a smooth roll out of the new 
system and to ensure that legacy appeals will not be negatively 
impacted.
    It is also the Committee's intent that, in making the 
determination when and whether to submit the required 
certification, VA collaborate with all of the veterans 
organizations and other stakeholders that participated in 
crafting the new appeals framework.

Sec. 2(y). Rule of construction.

    Section 2(y) of the Committee bill would clarify that this 
bill is not intended to limit the ability of individuals to 
seek revision of a VA decision based on clear and unmistakable 
error.
    Background. Under sections 5109A and 7111 of title 38, 
U.S.C., individuals may seek revision of a VA decision on the 
grounds of clear and unmistakable error.
    Committee Bill. Section 2(y) of the Committee bill would 
provide that nothing in section 2 of the Committee bill shall 
be construed to limit the ability of a claimant to request a 
revision of a decision based on clear and unmistakable error 
pursuant to section 5109A or 7111 of title 38, U.S.C.

Sec. 3. Comprehensive plan for processing of legacy appeals and 
        implementing new appeals system.

    Section 3 of the Committee bill, in a freestanding 
provision, would require VA to submit to Congress a 
comprehensive plan for processing legacy appeals and 
implementing the new appeals system and to provide periodic 
reports on VA's progress in carrying out that plan.
    Background. On March 23, 2017, GAO released a report--
entitled VA Disability Benefits: Additional Planning Would 
Enhance Efforts to Improve the Timeliness of Appeals 
Decisions--on VA's efforts to improve timeliness for resolving 
appeals relating to disability claims, including the proposal 
put forward in 2016 to comprehensively reform the disability 
claims appeals process and VA's plans to implement a new 
appeals system if that proposal is enacted. GAO found that VA 
does not have data to be able to identify the root cause of 
delays under the current appeals process; it is not clear if VA 
will be able to determine whether a new appeals process reduces 
``churning'' of cases between different levels of review at VA, 
which VA believes is a significant problem with the current 
process; GAO believes pilot programs to test the concepts 
involved in appeals reform would help detect and correct 
problems with the new process before it is rolled out 
nationally; there are inadequacies in VA's plans for 
implementing a new appeals process, for upgrading information 
technology systems, and for hiring more staff; and VA does not 
have an adequate plan for how it would measure whether a new 
appeals system is a success. Based on all of those findings, 
GAO believes that VA risks undermining the efficiencies and 
goals of the planned reforms.
    Consequently, GAO recommended that Congress require VA to 
conduct pilot programs to test the concepts of appeals reform 
before rolling out a new system; that VA should develop 
detailed plans for recruiting, hiring, and training new 
employees; that VA should develop a schedule for information 
technology updates; that VA should conduct sensitivity analysis 
on assumptions used in projecting productivity and staffing 
needs under the proposed new appeals system; that VA should 
develop a more detailed plan for monitoring implementation of a 
new appeals system; and that VA should develop a plan to assess 
whether the new appeals system is serving veterans better than 
the existing appeals system.
    Committee Bill. Section 3(a) of the Committee bill would 
require VA, not later than 90 days after enactment, to submit 
to Congress and GAO a comprehensive plan for processing legacy 
appeals; implementing the new appeals system; timely 
processing, under the new appeals system, supplemental claims, 
requests for higher-level review, and appeals on any Board 
docket and for monitoring the implementation of the new appeals 
system, including metrics and goals to track the progress of 
the implementation; to evaluate the efficiency and 
effectiveness of the implementation; and to identify potential 
issues relating to the implementation.
    Section 3(b) of the Committee bill would require the plan 
to, at a minimum, include:

    1. Delineation of the total resource requirements of VBA 
and the Board, disaggregated by resources required to implement 
and administer the new appeals system and resources required to 
address legacy appeals.
    2. Delineation of the personnel requirements of VBA and the 
Board, including staffing levels during the period in which VBA 
and the Board are concurrently processing legacy appeals and 
appeals under the new appeals system and the period during 
which VBA and the Board are no longer processing any legacy 
appeals.
    3. Identification of the legal authorities under which VBA 
or the Board may hire additional employees to conduct that 
concurrent processing and remove employees who are no longer 
required by VBA or the Board once VBA and the Board are no 
longer processing any legacy appeals.
    4. An estimate of the amount of time VBA and the Board will 
require to hire additional employees once funding has been made 
available, including a comparison of such estimate and the 
historical average time required by VBA and the Board to hire 
additional employees.
    5. A description of the amount of training and experience 
that will be required of individuals conducting higher-level 
reviews.
    6. An estimate of the percentage of higher-level 
adjudicators who will be former Decision Review Officers or 
have comparable experience to Decision Review Officers.
    7. A description of the functions that would be performed 
by Decision Review Officers with respect to the new appeals 
system.
    8. Identification of and a timeline for any training that 
may be required as a result of hiring new employees to carry 
out the new appeals system or to process legacy appeals and any 
re-training of existing employees that may be required.
    9. Identification of the costs to VA for the required 
training and any additional training staff and any additional 
training facilities that will be required.
    10. A description of the modifications to the information 
technology systems of VBA and the Board required to carry out 
the new appeals system, including cost estimates and a timeline 
for making the modifications.
    11. An estimate of the office space VBA and the Board will 
require during and after concurrent processing, including an 
estimate of the amount of time VBA and the Board will require 
to acquire any additional office space; the historical average 
time required by VBA and the Board to acquire new office space; 
and a plan for using telework to accommodate staff exceeding 
available office space, including how VBA and the Board will 
provide training and oversight with respect to such 
teleworking.
    12. Projections for the productivity of individual 
employees at VBA and the Board in carrying out tasks relating 
to the processing of legacy appeals and appeals under the new 
appeals system, taking into account the experience level of new 
employees and the enhanced notice required by this bill.
    13. An outline of the outreach the Secretary expects to 
conduct to inform veterans, families of veterans, survivors of 
veterans, veterans service organizations, military service 
organizations, Congressional caseworkers, advocates for 
veterans, and such other stakeholders as the Secretary 
considers appropriate about the new appeals system, including a 
description of the resources required to conduct such outreach 
and timelines for conducting such outreach.
    14. Timelines for updating any policy guidance, websites, 
and official forms that may be necessary to carry out the new 
appeals system, including identification of which offices and 
entities will be involved in efforts relating to such updating 
and historical information about how long similar update 
efforts have taken.
    15. A timeline, including interim milestones, for 
promulgating such regulations as may be necessary to carry out 
the new appeals system and a comparison with historical 
averages for time required to promulgate regulations of similar 
complexity and scope.
    16. An outline of the circumstances under which claimants 
with pending legacy appeals would be authorized to have their 
appeals reviewed under the new appeals system.
    17. A delineation of the key goals and milestones for 
reducing the number of legacy appeals, including the expected 
number of appeals, remands, and hearing requests at VBA and the 
Board each year until there are no longer any legacy appeals.
    18. A description of each risk factor associated with each 
element of the plan and a contingency plan to minimize each 
such risk.

    Section 3(c) of the Committee bill would require GAO, no 
later than 90 days after receiving that plan, to assess the 
plan and notify Congress of its findings, including an 
assessment of whether the plan comports with sound planning 
practices, identification of any gaps in the plan, and such 
recommendations as considered appropriate.
    Section 3(d) of the Committee bill would require VA, not 
later than 90 days after submitting that plan and every 90 days 
thereafter until the new system takes effect, and every 180 
days thereafter for 7 years, to submit to Congress and GAO a 
report on VA's progress in carrying out the plan and what steps 
VA has taken to address any recommendations formulated by GAO.
    Section 3(e) of the Committee bill would require VA to make 
available on a VA website the comprehensive plan and the 
periodic progress reports.

Sec. 4. Programs to test assumptions relied on in development of 
        comprehensive plan for processing of legacy appeals and 
        supporting new appeals system.

    Section 4 of the Committee bill, in a freestanding 
provision, would authorize VA to carry out programs to test any 
assumptions relied upon in developing the comprehensive plan 
and to test the feasibility and advisability of any facet of 
the new appeals system.
    Background. As outlined above, in its March 2017 report, 
GAO recommended that Congress require VA to conduct pilot 
programs to test the concepts of appeals reform before rolling 
out an entirely new appeals system. For example, GAO stated 
that ``VA's plans run counter to sound redesign practices that 
suggest pilot testing the process changes in a more limited 
fashion before full implementation, in order to manage risks 
and help ensure successful implementation of significant 
institutional change.'' GAO further stated that ``without pilot 
testing VA may experience challenges and setbacks on a broader 
scale, which could undermine planned efficiencies and other 
intended outcomes.''
    Committee Bill. Section 4(a) of the Committee bill would 
provide that VA may carry out such programs as the Secretary 
considers appropriate to test any assumptions relied upon in 
developing the comprehensive plan and to test the feasibility 
and advisability of any facet of the new appeals system. VA 
would be required to notify Congress if changes to the new 
appeals system are needed in light of any such program.
    Section 4(b) of the Committee bill would provide that the 
authority to carry out programs would include authority to 
conduct the fully developed appeals program as outlined in 
S. 933.
    Section 4(c) of the Committee bill would provide that VA 
may not carry out any such programs after the new appeals 
system takes effect.

Sec. 5. Periodic publication of metrics relating to processing of 
        appeals by Department of Veterans Affairs.

    Section 5 of the Committee bill, in a freestanding 
provision, would require VA periodically to publish on its 
website data regarding processing legacy appeals and appeals in 
the new system.
    Background. As outlined above, the March 2017 GAO report 
outlined GAO's findings that VA does not have data to be able 
to identify the root cause of delays under the current appeals 
process and it is not clear if VA will be able to determine 
whether a new appeals process reduces ``churning'' of cases 
between different levels of review at VA, which VA believes is 
a significant problem with the current process. GAO recommended 
that VA should develop a more detailed plan for monitoring 
implementation of a new appeals system and that VA should 
develop a plan to assess whether the new appeals system is 
serving veterans better than the existing appeals system.
    Committee Bill. Section 5 of the Committee bill would 
require VA to periodically publish on a VA website the 
following:

    With respect to appeals under the new appeals system:

    1. For VBA and, to the extent practicable, each regional 
office, the number of supplemental claims and requests for 
higher-level review that are pending.
    2. The number of appeals on any Board docket.
    3. The average duration for processing claims and 
supplemental claims, disaggregated by regional office.
    4. The average duration for processing requests for higher-
level review, disaggregated by regional office.
    5. The average number of days that appeals are pending on a 
docket of the Board, disaggregated by appeals that include a 
request for a hearing, appeals that do not include a request 
for a hearing but do include submittal of evidence, and appeals 
that do not include a request for a hearing and do not include 
submittal of evidence.
    6. With respect to the policy VA develops and implements to 
allow appellants to switch Board dockets, the number of cases 
moved from one docket to another; the average time cases were 
pending prior to moving from one docket to another; and the 
average time to adjudicate the cases after so moving.
    7. The total number of remands to obtain advisory medical 
opinions.
    8. The average number of days between the date the Board 
remands a claim to obtain an advisory medical opinion and the 
advisory medical opinion is obtained.
    9. The average number of days between the date the Board 
remands a claim to obtain an advisory medical opinion and the 
agency of original jurisdiction issues a decision taking that 
advisory opinion into account.
    10. The number of appeals that are granted, the number of 
appeals that are remanded, and the number of appeals that are 
denied by the Board disaggregated by docket.
    11. The number of claimants each year that take action to 
protect their effective date, disaggregated by the status of 
the claimants taking the actions, such as whether the claimant 
is represented by a veterans service organization, the claimant 
is represented by an attorney, or the claimant is taking such 
action pro se.
    12. The total number of times on average each claimant 
files to protect their effective date, disaggregated by the 
action taken.
    13. The average duration, from the filing of an initial 
claim until the claim is resolved and claimants no longer take 
any action to protect their effective date of claims under the 
new appeals system, excluding legacy claims that opt in to the 
new appeals system and of legacy claims that opt in to the new 
appeals system.
    14. How frequently an action taken within 1 year to protect 
an effective date leads to additional grant of benefits, 
disaggregated by action taken.
    15. The average of how long it takes to complete each 
segment of the claims process while claimants are protecting 
the effective date, disaggregated by the time waiting for the 
claimant to take an action and the time waiting for VA to take 
an action.
    16. The number and the average amount of retroactive awards 
of benefits as a result of protected effective dates, 
disaggregated by action taken.
    17. The average number of times claimants submit claims 
with respect to the same condition, such as an initial claim 
and a supplemental claim.
    18. The number of cases each year in which a claimant 
inappropriately tried to take simultaneous actions, such as 
filing a supplemental claim while a higher-level review is 
pending, what actions VA took in response, and how long it took 
on average to take those actions.
    19. In the case that VA develops and implements a policy to 
allow claimants to switch options, the number of actions 
withdrawn and new actions taken pursuant to such policy.
    20. The number of times VA received evidence relating to an 
appeal or higher-level review at a time not authorized under 
the new appeals system, disaggregated by actions taken by VA to 
deal with the evidence and how long on average it took to take 
those actions.
    21. The number of errors committed by VA in carrying out 
the duty to assist that were identified by higher-level review 
and by the Board, disaggregated by type of error, such as 
errors relating to private records and inadequate examinations, 
and a comparison with errors committed by VA in carrying out 
such duty with respect to legacy appeals.
    22. An assessment of the productivity of employees at the 
regional offices and at the Board, disaggregated by level of 
experience of the employees.
    23. The percentage of cases that are decided within the 
goals set by VA, disaggregated by supplemental claims, higher-
level reviews, and each Board docket. If VA has not set a goal, 
VA would report the number of cases decided within 1 year, 2 
years, 3 years, and more than 3 years.
    24. The percentage of decisions that are overturned in 
whole or in part by a higher-level adjudicator, that are upheld 
by a higher-level adjudicator, and that are returned by a 
higher-level adjudicator for correction of an error.
    25. How frequently VA readjudicates a claim pursuant to 
section 5108 of title 38, U.S.C., as amended by this bill and 
how frequently the readjudication results in an award of 
benefits.
    26. If the Board screens cases pursuant to section 7107(d) 
of title 38, U.S.C., as rewritten by the bill, a description of 
the way in which the cases are screened and the purpose for 
which they are screened; a description of the effect screening 
had on the timeliness of Board decisions and the inventory of 
cases at the Board; and the type and frequency of development 
errors detected through the screening.

    With respect to the processing of legacy appeals:

    1. The average duration of each segment of the appeals 
process, disaggregated by periods in which VA is waiting for a 
claimant to take an action and periods in which the claimant is 
waiting for VA to take an action.
    2. The frequency by which appeals lead to additional grant 
of benefits, disaggregated by whether the additional benefits 
are a result of additional evidence added after the initial 
decision.
    3. The number and average amount of retroactive awards of 
benefits resulting from an appeal.
    4. The average duration from filing a legacy claim until 
all appeals and remands relating to such legacy claim are 
completed.
    5. The average number of times claimants submit different 
claims with respect to the same condition, such as an initial 
claim, new and material evidence, or a claim for an increase in 
benefits.
    6. An assessment of the productivity of employees at the 
regional offices and at the Board, disaggregated by level of 
experience of the employees.
    7. The average number of days the duration of an appeal is 
extended because VA secured or attempted to secure an advisory 
medical opinion.
    8. How frequently claims are reopened pursuant to section 
5108 of title 38, U.S.C., as in effect prior to the effective 
date of the new appeals system and how frequently reopening 
results in an award of benefits.

    With respect to the processing of legacy appeals that opt 
in to the new appeals system:

    1. The cumulative number of such legacy appeals.
    2. The portion of work in the new appeals system 
attributable to those legacy appeals.
    3. The average period such legacy appeals were pending 
before opting in to the new appeals system and the average 
period required to adjudicate them after opting in with respect 
to claims at a regional office, disaggregated by supplemental 
claims and requests for higher-level review and with respect to 
appeals, disaggregated by Board docket.

    The Committee is of the opinion that this information will 
be useful in gauging whether veterans, their families, and 
their survivors are overall receiving satisfactory answers on 
their cases in a more timely manner than under the legacy 
appeals system. Also, this information should assist VA, 
Congress, and stakeholders in identifying any refinements that 
are necessary to the new system. With regard to legacy appeals, 
the Committee recognizes that VA has not tracked this 
information in the past. It is the Committee's intent that, in 
processing the nearly 500,000 legacy appeals that are currently 
pending and any additional legacy appeals that are filed prior 
to the effective date of the new appeals system, VA will track 
this data in order to allow for a reasonable comparison between 
the performance of the new appeals system and the legacy 
system. The Committee does not intend for VA to attempt to re-
create this data with regard to legacy appeals that previously 
have been completed.

Sec. 6. Definitions.

    Section 6 of the Committee bill, in a freestanding 
provision, would define several terms for purposes of this 
bill.
    Background. The Committee bill uses several terms that are 
not defined in title 38, U.S.C.
    Committee Bill. Section 6 of the Committee bill would 
define ``claimant'' as having the meaning given that term in 
section 5100 of title 38, U.S.C.; would define ``legacy claim'' 
as a claim that was submitted to VA for a benefit under a law 
administered by VA and for which notice of a decision was 
provided before the applicability date set forth in section 
2(x) of the Committee bill; and would define ``opt in'' as, 
with respect to a legacy claim, that the claimant elects to 
subject the claim to the new appeals system.

                      Committee Bill Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
Standing Rules of the Senate, the Committee, based on 
information supplied by the Congressional Budget Office 
(hereinafter, ``CBO''), estimates that enactment of the 
Committee bill would, relative to current law, increase 
discretionary spending by $2 million over 5 years. Enactment of 
the Committee bill would not affect the budget of state, local, 
or tribal governments.
    The cost estimate provided by CBO, setting forth a detailed 
breakdown of costs, follows:

                               Congressional Budget Office,
                                      Washington, DC, July 5, 2017.
Hon. Johnny Isakson,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.

    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1024, the Veterans 
Appeals Improvement and Modernization Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Dwayne M. 
Wright.
            Sincerely,
                                                Keith Hall,
                                                          Director.

  Enclosure.

S. 1024--Veterans Appeals Improvement and Modernization Act of 2017

    Summary: S. 1024 would modify the appeals process for 
benefit claims at the Department of Veterans Affairs (VA) and 
would require VA and the Government Accountability Office (GAO) 
to produce several reports. CBO estimates that implementing 
S. 1024 would cost about $2 million over the 2017-2022 period; 
such spending would be subject to the availability of 
appropriated funds.
    Enacting the bill would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply. CBO 
estimates that enacting S. 1024 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    S. 1024 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the Federal Government: The estimated 
budgetary effect of S. 1024 is shown in the following table. 
The costs of this legislation fall within budget function 700 
(veterans benefits and services).

 
----------------------------------------------------------------------------------------------------------------
                                                          By fiscal year, in millions of dollars--
                                          ----------------------------------------------------------------------
                                             2017      2018      2019      2020      2021      2022    2017-2022
----------------------------------------------------------------------------------------------------------------
                                 INCREASES IN SPENDING SUBJECT TO APPROPRIATION
 
Estimated Authorization Level............        0         1         *         *         *         *          2
Estimated Outlays........................        0         1         *         *         *         *          2
----------------------------------------------------------------------------------------------------------------
Note: Annual amounts do not sum to total because of rounding; * = less than $500,000.

    Basis of estimate: For this estimate, CBO assumes that 
S. 1024 will be enacted near the beginning of fiscal year 2018, 
that sufficient funds will be available each year, and that 
outlays will follow historical spending patterns for the 
affected programs.
    Appeals Reform. Section 2 would direct VA to implement a 
new process to handle appeals of claims for veterans' benefits. 
As described below, the current system allows for repeated 
revisions and resubmissions of claims while maintaining an 
effective date for benefits based upon the original filing date 
of the claim. As a result, VA reports that under current law 
final decisions on appeals take an average of 3 years, with 
some appeals taking more than 6 years. The current backlog for 
appeals exceeds 470,000 claims and is growing.
    The proposed changes are intended to significantly 
streamline the appeal process, which would allow appeals to be 
finalized in a shorter period of time with fewer employees. VA 
reports that no additional personnel would be required for 
training, modifications to information technology, or outreach. 
VA also expects that the efficiencies of the new system would 
allow the agency to continue processing legacy appeals under 
the current system, very gradually reducing the existing 
backlog, without the need for additional employees. (Reducing 
the backlog in a more expedited manner would require more 
employees and would have a substantial cost.) Based on an 
analysis of information from VA and our understanding of the 
appeals process, CBO expects that VA could implement the 
changes without an increase in workload. Therefore, CBO 
estimates that implementing section 2 would have no significant 
cost over the 2017-2022 period.
    Comprehensive Plan. Section 3 would require VA to create a 
comprehensive plan to implement the new appeals process. That 
plan would include information about the existing process, 
including timeliness and the number of appeals, and would 
discuss how that information would differ under the new 
process. VA would be required to evaluate the potential costs 
for all facets of the new appeals process as well as to provide 
quarterly reports on VA's implementation of that process. The 
bill also would require GAO to conduct an assessment of VA's 
comprehensive plan. CBO estimates that implementing this 
provision would cost about $2 million to prepare the reports 
over the 2017-2022 period.
    Pilot Program on Fully Developed Appeals. Section 4 would 
grant VA the authority to implement a pilot program for some 
appeals until the new appeals process could be implemented. VA 
indicates that it would not use this authority; therefore, CBO 
estimates that implementing section 4 would have no budgetary 
effects.
    VA Appeals Data. Section 5 would require VA to publish data 
monthly about the new appeals process on their website. CBO 
estimates that implementing section 5 would cost less than 
$500,000 over the 2017-2022 period.
    Pay-As-You-Go Considerations: None.
    Increase in long-term direct spending and deficits: CBO 
estimates that enacting S. 1024 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2028.
    Intergovernmental and private-sector impact: S. 1024 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Previous CBO estimate: On May 19, 2017, CBO transmitted a 
cost estimate for H.R. 2288, the Veterans Appeals Improvement 
and Modernization Act of 2017, as ordered reported by the House 
Committee on Veterans' Affairs on May 17, 2017. Each section of 
S. 1024 is similar to the corresponding section of H.R. 2288 
and the estimated costs of the two bills are identical.
    Estimate prepared by: Federal Costs: Dwayne M. Wright; 
Impact on State, Local, and Tribal Governments: Jon Sperl; 
Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Theresa Gullo, Assistant Director for 
Budget Analysis.

                      Regulatory Impact Statement

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee on Veterans' 
Affairs has made an evaluation of the regulatory impact that 
would be incurred in carrying out the Committee bill. The 
Committee finds that the Committee bill would not entail any 
regulation of individuals or businesses or result in any impact 
on the personal privacy of any individuals and that the 
paperwork resulting from enactment would be minimal.

                 Tabulation of Votes Cast in Committee

    In compliance with paragraph 7(b) of rule XXVI of the 
Standing Rules of the Senate, the following is a tabulation of 
votes cast in person or by proxy by members of the Committee on 
Veterans' Affairs at its June 28, 2017, meeting: The Committee 
bill was ordered reported favorably by voice vote without 
dissent.

                             Agency Report

    On May 17, 2017, Jennifer S. Lee, M.D., Deputy Under 
Secretary for Health for Policy and Services, Veterans Health 
Administration, U.S. Department of Veterans Affairs, appeared 
before the Committee on Veterans' Affairs and submitted 
testimony on S. 1024 as well as other bills pending before the 
Committee. An excerpt from that statement is reprinted below:


 STATEMENT OF JENNIFER S. LEE, M.D., DEPUTY UNDER SECRETARY FOR HEALTH 
     FOR POLICY AND SERVICES, VETERANS HEALTH ADMINISTRATION, U.S. 
DEPARTMENT OF VETERANS AFFAIRS

           *       *       *       *       *       *       *


        S. 1024, VETERANS APPEALS IMPROVEMENT AND MODERNIZATION 
                              ACT OF 2017

    Modernizing the appeals process is a top priority for VA. 
It is more critical than ever that we continue to work together 
to transform an appeals process that is failing Veterans. There 
are currently over 470,000 appeals pending in VA, some 40 
percent more than were pending only 5 years ago. Those Veterans 
are waiting much too long for answers on their appeals. 
Although Veterans wait an average of only 116 days for a 
decision on VA disability compensation claims, they are waiting 
an average of 3 years for their appeal to be resolved. Appeals 
that go all the way to the Board of Veterans' Appeals (Board) 
take even longer--an average of 6 years to resolve. A system 
that can deliver an answer on an initial claim in 116 days, but 
takes many years to resolve an appeal is a system that is not 
working for Veterans. If appeals reform is not passed, these 
already unacceptable wait times will only get worse.
    S. 1024 would provide much-needed comprehensive reform for 
the VA appeals process to ensure that Veterans receive a 
timely, VA decision on their appeal. It would replace the 
current, lengthy, complex, confusing VA appeals process with a 
new appeals process that makes sense for Veterans, their 
advocates, VA, and stakeholders. VA supports the intent of 
S. 1024; however, we have some concerns with certain provisions 
in S. 1024 as drafted, such as the provisions that would remove 
finality from the process upon judicial review and require the 
Secretary to certify that he has the resources necessary to 
timely process appeals in the future. We look forward to 
working with the Committee to address those concerns. The 
Department stands committed to getting appeals reform 
accomplished for Veterans this year.
    The current VA appeal process, which is set in law, is 
broken and provides Veterans a frustrating experience. In the 
current process, appeals have no defined endpoint. Veterans and 
VA adjudicators are instead engaged in continuous evidence 
gathering and repeated re-adjudication of the same appeal. This 
cycle of evidence gathering and re-adjudication means that 
appeals often churn for years between the Board and the agency 
of original jurisdiction (AOJ) to meet complex legal 
requirements, with little to no benefit flowing to the Veteran. 
The multiple layers of adjudication built into the current 
appeals process exacerbate delays even more. Jurisdiction is 
also split between the Board and the AOJ, meaning that Veterans 
often don't fully understand where in VA their appeal is 
located any given time. All of this has resulted in a system 
that is complicated, inefficient, ineffective, and confusing. 
Due to this complex and inefficient process, Veterans wait much 
too long for final resolution of their appeal.
    Without significant legislative reform, wait times and the 
cost to taxpayers will only increase. It was this stark reality 
that led to VA's unprecedented level of collaboration with 
stakeholders to design a modernized appeals process. The new 
appeals process contained in S. 1024 would provide Veterans an 
appeals decision that is timely, transparent, and fair. The new 
process is not just a VA idea. It is the product of over a year 
of collaboration between the Board, Veteran Benefits 
Administration, Veteran Service Organizations, the private bar, 
and other stakeholders. The new appeals process we designed is 
simpler and easier for Veterans to understand. It provides a 
streamlined process focused on early resolution of appeals, and 
generating long-term saving for taxpayers. VA is grateful to 
all of the stakeholders for their contributions of time, 
energy, and expertise in this effort.
    S. 1024 would empower Veterans by providing them with the 
ability to tailor the process to meet their individual needs--
choice that is not available in the current appeals process. 
Veterans in the new process can pursue one of three different 
lanes. One lane would be for review of the same evidence by a 
higher-level claims adjudicator at the AOJ. One lane would be 
for submitting new and relevant evidence with a supplemental 
claim at the AOJ, and one lane would allow Veterans to take 
their appeal directly to a Veterans Law Judge at the Board. In 
this last lane, the intermediate and duplicative steps 
currently required by statute to receive Board review, such as 
the Statement of the Case and the Substantive Appeal, would be 
eliminated. Furthermore, hearing and non-hearing options at the 
Board would be handled on separate dockets so these distinctly 
different types of work can be managed more efficiently.
    As a result of this new design, the AOJ would be the claims 
adjudication agency within VA and the Board would be the 
appeals agency. This design would remove the confusion caused 
by the current process, in which a Veteran initiates an appeal 
in the AOJ, but the appeal is really a years-long continuation 
of the claim development process. It would ensure that all 
claim development occurs in the context of a supplemental claim 
filed with the AOJ, which the AOJ can quickly adjudicate, 
rather than in an appeal.
    Currently, VA has a statutory duty to assist the Veteran in 
the development of a claim for benefits. This duty includes 
obtaining relevant Federal records, obtaining other records 
identified by the claimant, and providing a medical examination 
in certain circumstances. The new design contains a mechanism 
to correct any duty to assist errors by the AOJ. If the higher-
level claims adjudicator or Board discovers an error in the 
duty to assist that occurred before the AOJ decision being 
reviewed, the claim/appeal would be returned to the AOJ for 
correction unless the claim/appeal could be granted in full. 
However, the Secretary's duty to assist would not apply to the 
lane in which a Veteran requests higher-level review by the AOJ 
or review on appeal to the Board. The duty to assist would, 
however, continue to apply whenever the Veteran initiated a new 
claim or supplemental claim. Moreover, S. 1024 would require VA 
to modify its claims decision notices to ensure they are 
clearer and more detailed. This notice would help Veterans and 
their advocates make informed choices as to which a review 
option makes the most sense.
    The disentanglement of processes achieved by S. 1024 would 
be enabled by one crucial innovation. In order to make sure 
that the Veteran fully understands the process and can adapt to 
changed circumstances, a Veteran who is not fully satisfied 
with the result of any lane would have 1 year to seek further 
review while preserving an effective date for benefits based 
upon the original filing date of the claim. For example, a 
Veteran could go straight from an initial AOJ decision to an 
appeal to the Board. If the Board decision was not favorable, 
but helped the Veteran understand what evidence was needed to 
support the claim, then the Veteran would have 1 year to submit 
new and relevant evidence to the AOJ in a supplemental claim 
without fearing an effective-date penalty for choosing to go to 
the Board first. The robust effective date protections built 
into the draft bill enhance Veterans' rights and ensure that 
Veterans and their advocates cannot make a wrong turn in 
navigating the new appeals process.
    Beyond stopping the flow of appeals into the existing 
broken system, S. 1024 provides opt-ins to allow as many 
Veterans as possible to benefit from the streamlined features 
of the new process. A claimant who receives a decision after 
enactment and prior to the applicability date of the law could 
elect to participate in the new process, which would give VA 
discretion regarding whether to apply the new process to the 
claimant. However, while subsection (x)(3) envisions the 
possibility of processing individual claimants who opt-in under 
the new system prior to the applicability date, as a practical 
matter, VA cannot realistically offer the new system on a 
piecemeal basis before the entire new system is ready, which in 
turn depends on the certification date. Therefore, in practice, 
only Veterans who receive notice of decision within the 1 year 
period prior to the effective date of the law would be able to 
opt-in. Veterans who received an earlier notice of decision 
would not be able to submit a timely appeal into the new 
process within 1 year of their decision. Also, a claimant who 
receives a statement of the case or supplemental statement of 
the case in a legacy appeal could elect to participate in the 
new appeals system.
    While VA strongly supports the fundamental features of the 
new process outlined in S. 1024, we have concerns with some 
aspects of the proposed legislation as presently drafted, as 
discussed below.
    VA opposes a substantive change that would make the 
effective date protection afforded by the filing of a 
supplemental claim within 1 year of a decision applicable to 
supplemental claims filed within 1 year of a decision by the 
United States Court of Appeals for Veterans Claims (CAVC). This 
provision goes against an essential construct of the new 
process, which encourages Veterans to stay within VA to achieve 
the earliest resolution possible. It would be unfortunate to 
eliminate sources of unnecessary churn in VA, only to create 
new incentives for endless appeal at the CAVC. To the greatest 
extent possible, judicial review should be for substantive 
legal disagreements between a claimant and VA, not for record 
development questions that can easily be obviated simply by 
pursuing additional development and assistance in the 
supplemental claim lane.
    With regard to applicability and the proposed certification 
of the readiness to carry out the new system by the Secretary, 
the requirement that the Secretary submit a statement to 
Congress that he has the resources necessary to timely operate 
the system is problematic, given the annual budget cycle. While 
VA will be prepared to implement the new system at the end of 
the 18-month period prescribed in S. 1024 and shut off the flow 
of appeals to the broken process, the Secretary cannot predict 
the outcome of future budget cycles. Therefore, the Secretary 
will only be able to make a certification regarding resources 
available at the time of the certification and not into the 
future.
    Moreover, if S. 1024 was enacted with this provision, it 
would create significant uncertainty in implementing the opt-in 
component of the law. We note that S. 1024 provides VA 
discretion to apply the new process to claimants who elect to 
participate in the modernized appeals system at any time after 
enactment and before the applicability date. The applicability 
date in S. 1024 is necessarily indeterminate because it depends 
upon when the Secretary will be able to certify under 
subsection (x)(1) that VA has the resources it needs to operate 
the modernized system; it is not possible to know when the 1 
year period allowing claimants the functional ability to elect 
begins. As previously noted, although S. 1024 does not set the 
1 year period for opt-ins, current law provides that claimants 
must submit a notice of disagreement within 1 year of a 
decision, and it will not be administratively feasible to 
provide claimants with the new system on a piecemeal basis 
before the administrative and regulatory work necessary to 
stand up the new system is complete. In order to provide 
Veterans with meaningful choice in how their appeal is handled, 
we must be able to inform them as to whether they will have the 
option of appealing into the new system. We would be happy to 
continue working with the Committee to discuss alternative 
approaches to the applicability date of the law.
    S. 1024 also adds notice requirements to higher-level 
review and Board decisions, for the purpose of explaining 
whether the claimant submitted evidence that was not 
considered, and if so, what the claimant or appellant can do to 
have that evidence considered. VA views this addition as 
unnecessary, as a claimant who had elected either a higher-
level review or an appeal to the Board would have already 
received notice addressing all lane options in the new process, 
including restrictions on the submission of new evidence. They 
would also be aware of the option to file a supplemental claim, 
where they would have the opportunity to submit new evidence 
for consideration by the AOJ. Additionally, the issue of how to 
handle improperly submitted evidence is an administrative 
matter that would best be determined by VA.
    S. 1024 also includes reporting requirements that we 
believe could be adjusted to be less onerous but still provide 
valuable information to the Congress. We look forward to 
working with the Committee to better shape these provisions in 
a manner that achieves adequate protection for Veterans and 
robust information for Congressional oversight, while at the 
same time using administrative resources wisely.
    VA stands ready to provide additional technical assistance 
on several other aspects of the proposed legislation. We 
appreciate any opportunity to work with Congress to further 
refine this legislation.

                        Changes in Existing Law

    In compliance with paragraph 12 of Rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman).

Title 38. Veterans' Benefits

           *       *       *       *       *       *       *


Part I. General Provisions

           *       *       *       *       *       *       *


Chapter 1. General

           *       *       *       *       *       *       *


SEC. 101. DEFINITIONS

           *       *       *       *       *       *       *


          (34) The term ``agency of original jurisdiction'' 
        means the activity which entered the original 
        determination with regard to a claim for benefits under 
        laws administered by the Secretary.
          (35) The term ``relevant evidence'' means evidence 
        that tends to prove or disprove a matter in issue.
          (36) The term ``supplemental claim'' means a claim 
        for benefits under laws administered by the Secretary 
        filed by a claimant who had previously filed a claim 
        for the same or similar benefits on the same or similar 
        basis.

           *       *       *       *       *       *       *


               Part IV. General Administrative Provisions

           Chapter 51. Claims, Effective Dates, and Payments

                          SUBCHAPTER I. CLAIMS

Sec.

           *       *       *       *       *       *       *

5104. Decisions and notices of decisions.
5104A. Binding nature of favorable findings.
5104B. Higher-level review by the agency of original 
            jurisdiction.
5104C. Options following decision by agency of original 
            jurisdiction.
5105. Joint applications for social security and dependency and 
            indemnity compensation.

           *       *       *       *       *       *       *

[5108. Reopening disallowed claims.]
5108. Supplemental claims.
5109A. Revision of decisions on grounds of clear and unmistakable 
            error.
[5109B. Expedited treatment of remanded claims.]
5109B. Expedited treatment of returned and remanded claims.

           *       *       *       *       *       *       *


Subchapter I. Claims

           *       *       *       *       *       *       *


SEC. 5103. NOTICE TO CLAIMANTS OF REQUIRED INFORMATION AND EVIDENCE

    (a) Required Information and Evidence.--(1) [The] Except as 
provided in paragraph (3), the Secretary shall provide to the 
claimant and the claimant's representative, if any, by the most 
effective means available, including electronic communication 
or notification in writing, notice of any information, and any 
medical or lay evidence, not previously provided to the 
Secretary that is necessary to substantiate the claim. As part 
of that notice, the Secretary shall indicate which portion of 
that information and evidence, if any, is to be provided by the 
claimant and which portion, if any, the Secretary, in 
accordance with section 5103A of this title and any other 
applicable provisions of law, will attempt to obtain on behalf 
of the claimant.
    (2)(A) * * *
    (B) The regulations required by this paragraph--
          (i) shall specify different contents for notice based 
        on whether the claim concerned is an original claim[, a 
        claim for reopening a prior decision on a claim, or a 
        claim for an increase in benefits;] or a supplemental 
        claim;

           *       *       *       *       *       *       *

      (3) The requirement to provide notice under paragraph (1) 
shall not apply with respect to a supplemental claim that is 
filed within the timeframe set forth in subparagraphs (B) and 
(D) of section 5110(a)(2) of this title.

           *       *       *       *       *       *       *


SEC. 5103A. DUTY TO ASSIST CLAIMANTS

           *       *       *       *       *       *       *


    (e) Applicability of Duty to Assist.--(1) The Secretary's 
duty to assist under this section shall apply only to a claim, 
or supplemental claim, for a benefit under a law administered 
by the Secretary until the time that a claimant is provided 
notice of the agency of original jurisdiction's decision with 
respect to such claim, or supplemental claim, under section 
5104 of this title.
    (2) The Secretary's duty to assist under this section shall 
not apply to higher-level review by the agency of original 
jurisdiction, pursuant to section 5104B of this title, or to 
review on appeal by the Board of Veterans' Appeals.
    (f) Correction of Duty to Assist Errors.--(1) If, during 
review of the agency of original jurisdiction decision under 
section 5104B of this title, the higher-level adjudicator 
identifies or learns of an error on the part of the agency of 
original jurisdiction to satisfy its duties under this section, 
and that error occurred prior to the agency of original 
jurisdiction decision being reviewed, unless the Secretary may 
award the maximum benefit in accordance with this title based 
on the evidence of record, the higher-level adjudicator shall 
return the claim for correction of such error and 
readjudication.
    (2)(A) If the Board of Veterans' Appeals, during review on 
appeal of an agency of original jurisdiction decision, 
identifies or learns of an error on the part of the agency of 
original jurisdiction to satisfy its duties under this section, 
and that error occurred prior to the agency of original 
jurisdiction decision on appeal, unless the Secretary may award 
the maximum benefit in accordance with this title based on the 
evidence of record, the Board shall remand the claim to the 
agency of original jurisdiction for correction of such error 
and readjudication.
    (B) Remand for correction of such error may include 
directing the agency of original jurisdiction to obtain an 
advisory medical opinion under section 5109 of this title.
    (3) Nothing in this subsection shall be construed to imply 
that the Secretary, during the consideration of a claim, does 
not have a duty to correct an error described in paragraph (1) 
or (2) that was erroneously not identified during higher-level 
review or during review on appeal with respect to the claim.
    (g) [(e)] Regulations.--The Secretary shall prescribe 
regulations to carry out this section.
    (h) [(f)] Rule With Respect to Disallowed Claims.--Nothing 
in this section shall be construed to require the Secretary to 
[reopen] readjudicate a claim that has been disallowed except 
when new and [material] relevant evidence is presented or 
secured, as described in section 5108 of this title.
    (i) [(g)] Other Assistance Not Precluded.--Nothing in this 
section shall be construed as precluding the Secretary from 
providing such other assistance under subsection (a) to a 
claimant in substantiating a claim as the Secretary considers 
appropriate.

SEC. 5104. DECISIONS AND NOTICES OF DECISIONS

    (a) * * *
    [(b) In any case where the Secretary denies a benefit 
sought, the notice required by subsection (a) shall also 
include (1) a statement of the reasons for the decision, and 
(2) a summary of the evidence considered by the Secretary.]
    (b) Each notice provided under subsection (a) shall also 
include all of the following:
          (1) Identification of the issues adjudicated.
          (2) A summary of the evidence considered by the 
        Secretary.
          (3) A summary of the applicable laws and regulations.
          (4) Identification of findings favorable to the 
        claimant.
          (5) In the case of a denial, identification of 
        elements not satisfied leading to the denial.
          (6) An explanation of how to obtain or access 
        evidence used in making the decision.
          (7) If applicable, identification of the criteria 
        that must be satisfied to grant service connection or 
        the next higher level of compensation.

SEC. 5104A. BINDING NATURE OF FAVORABLE FINDINGS

    Any finding favorable to the claimant as described in 
section 5104(b)(4) of this title shall be binding on all 
subsequent adjudicators within the Department, unless clear and 
convincing evidence is shown to the contrary to rebut such 
favorable finding.

SEC. 5104B. HIGHER-LEVEL REVIEW BY THE AGENCY OF ORIGINAL JURISDICTION

    (a) In General.--(1) A claimant may request a review of the 
decision of the agency of original jurisdiction by a higher-
level adjudicator within the agency of original jurisdiction.
    (2) The Secretary shall approve each request for review 
under paragraph (1).
    (b) Time and Manner of Request.--(1) A request for higher-
level review by the agency of original jurisdiction shall be--
          (A) in writing in such form as the Secretary may 
        prescribe; and
          (B) made within one year of the notice of the agency 
        of original jurisdiction's decision.
    (2) Such request may specifically indicate whether such 
review is requested by a higher-level adjudicator at the same 
office within the agency of original jurisdiction or by an 
adjudicator at a different office of the agency of original 
jurisdiction. The Secretary shall not deny such request for 
review by an adjudicator at a different office of the agency of 
original jurisdiction without good cause.
    (c) Decision.--Notice of a higher-level review decision 
under this section shall be provided in writing and shall 
include a general statement--
          (1) reflecting whether evidence was not considered 
        pursuant to subsection (d); and
          (2) noting the options available to the claimant to 
        have the evidence described in paragraph (1), if any, 
        considered by the Department.
    (d) Evidentiary Record for Review.--The evidentiary record 
before the higher-level adjudicator shall be limited to the 
evidence of record in the agency of original jurisdiction 
decision being reviewed.
    (e) De Novo Review.--A review of the decision of the agency 
of original jurisdiction by a higher-level adjudicator within 
the agency of original jurisdiction shall be de novo.

SEC. 5104C. OPTIONS FOLLOWING DECISION BY AGENCY OF ORIGINAL 
                    JURISDICTION

    (a) Within One Year of Decision.--(1) Subject to paragraph 
(2), in any case in which the Secretary renders a decision on a 
claim, the claimant may take any of the following actions on or 
before the date that is one year after the date on which the 
agency of original jurisdiction issues a decision with respect 
to that claim:
          (A) File a request for higher-level review under 
        section 5104B of this title.
          (B) File a supplemental claim under section 5108 of 
        this title.
          (C) File a notice of disagreement under section 7105 
        of this title.
    (2)(A) Once a claimant takes an action set forth in 
paragraph (1), the claimant may not take another action set 
forth in that paragraph with respect to the same claim or same 
issue contained within the claim until--
          (i) the higher-level review, supplemental claim, or 
        notice of disagreement is adjudicated; or
          (ii) the request for higher-level review, 
        supplemental claim, or notice of disagreement is 
        withdrawn.
    (B) Nothing in this subsection shall prohibit a claimant 
from taking any of the actions set forth in paragraph (1) in 
succession with respect to a claim or an issue contained within 
the claim.
    (C) Nothing in this subsection shall prohibit a claimant 
from taking different actions set forth in paragraph (1) with 
respect to different claims or different issues contained 
within a claim.
    (D) The Secretary may, as the Secretary considers 
appropriate, develop and implement a policy for claimants who--
          (i) take an action under paragraph (1);
          (ii) wish to withdraw the action before the higher-
        level review, supplemental claim, or notice of 
        disagreement is adjudicated; and
          (iii) in lieu of such action take a different action 
        under paragraph (1).
    (b) More Than One Year After Decision.--In any case in 
which the Secretary renders a decision on a claim and more than 
one year has passed since the date on which the agency of 
original jurisdiction issues a decision with respect to that 
claim, the claimant may file a supplemental claim under section 
5108 of this title.

           *       *       *       *       *       *       *


[SEC. 5108. REOPENING DISALLOWED CLAIMS

    [If new and material evidence is presented or secured with 
respect to a claim which has been disallowed, the Secretary 
shall reopen the claim and review the former disposition of the 
claim.]

SEC. 5108. SUPPLEMENTAL CLAIMS

    (a) In General.--If new and relevant evidence is presented 
or secured with respect to a supplemental claim, the Secretary 
shall readjudicate the claim taking into consideration all of 
the evidence of record.
    (b) Duty to Assist.--(1) If a claimant, in connection with 
a supplemental claim, reasonably identifies existing records, 
whether or not in the custody of a Federal department or 
agency, the Secretary shall assist the claimant in obtaining 
the records in accordance with section 5103A of this title.
    (2) Assistance under paragraph (1) shall not be predicated 
upon a finding that new and relevant evidence has been 
presented or secured.

SEC. 5109. INDEPENDENT MEDICAL OPINIONS

           *       *       *       *       *       *       *


    (d)(1) The Board of Veterans' Appeals shall remand a claim 
to direct the agency of original jurisdiction to obtain an 
advisory medical opinion from an independent medical expert 
under this section if the Board finds that the Veterans 
Benefits Administration should have exercised its discretion to 
obtain such an opinion.
    (2) The Board's remand instructions shall include the 
questions to be posed to the independent medical expert 
providing the advisory medical opinion.

           *       *       *       *       *       *       *


[SEC. 5109B. EXPEDITED TREATMENT OF REMANDED CLAIMS

    [The Secretary shall take such actions as may be necessary 
to provide for the expeditious treatment by the appropriate 
regional office of the Veterans Benefits Administration of any 
claim that is remanded to a regional office of the Veterans 
Benefits Administration by the Board of Veterans' Appeals.]

SEC. 5109B. EXPEDITED TREATMENT OF RETURNED AND REMANDED CLAIMS

    The Secretary shall take such actions as may be necessary 
to provide for the expeditious treatment by the Veterans 
Benefits Administration of any claim that is returned by a 
higher-level adjudicator under section 5104B of this title or 
remanded by the Board of Veterans' Appeals.

                     Subchapter II. Effective Dates

SEC. 5110. EFFECTIVE DATES OF AWARDS

    [(a) Unless specifically provided otherwise in this 
chapter, the effective date of an award based on an original 
claim, a claim reopened after final adjudication, or a claim 
for increase, of compensation, dependency and indemnity 
compensation, or pension, shall be fixed in accordance with the 
facts found, but shall not be earlier than the date of receipt 
of application therefor.]
    (a)(1) Unless specifically provided otherwise in this 
chapter, the effective date of an award based on an initial 
claim, or a supplemental claim, of compensation, dependency and 
indemnity compensation, or pension, shall be fixed in 
accordance with the facts found, but shall not be earlier than 
the date of receipt of application therefor.
    (2) For purposes of determining the effective date of an 
award under this section, the date of application shall be 
considered the date of the filing of the initial application 
for a benefit if the claim is continuously pursued by filing 
any of the following, either alone or in succession:
          (A) A request for higher-level review under section 
        5104B of this title on or before the date that is one 
        year after the date on which the agency of original 
        jurisdiction issues a decision.
          (B) A supplemental claim under section 5108 of this 
        title on or before the date that is one year after the 
        date on which the agency of original jurisdiction 
        issues a decision.
          (C) A notice of disagreement on or before the date 
        that is one year after the date on which the agency of 
        original jurisdiction issues a decision.
          (D) A supplemental claim under section 5108 of this 
        title on or before the date that is one year after the 
        date on which the Board of Veterans' Appeals issues a 
        decision.
          (E) A supplemental claim under section 5108 of this 
        title on or before the date that is one year after the 
        date on which the Court of Appeals for Veterans Claims 
        issues a decision.
    (3) Except as otherwise provided in this section, for 
supplemental claims received more than one year after the date 
on which the agency of original jurisdiction issued a decision 
or the Board of Veterans' Appeals issued a decision, the 
effective date shall be fixed in accordance with the facts 
found, but shall not be earlier than the date of receipt of the 
supplemental claim.

           *       *       *       *       *       *       *

    (i) Whenever any disallowed claim is [reopened] 
readjudicated and thereafter allowed on the basis of new and 
[material] relevant evidence resulting from the correction of 
the military records of the proper service department under 
section 1552 of title 10, or the change, correction, or 
modification of a discharge or dismissal under section 1553 of 
title 10, or from other corrective action by competent 
authority, the effective date of commencement of the benefits 
so awarded shall be the date on which an application was filed 
for correction of the military record or for the change, 
modification, or correction of a discharge or dismissal, as the 
case may be, or the date such disallowed claim was filed, 
whichever date is the later, but in no event shall such award 
of benefits be retroactive for more than one year from the date 
of [reopening] readjudication of such disallowed claim. This 
subsection shall not apply to any application or claim for 
Government life insurance benefits.

           *       *       *       *       *       *       *


SEC. 5111. COMMENCEMENT OF PERIOD OF PAYMENT

           *       *       *       *       *       *       *


    (d) * * *
          (1) an original [or reopened award] award or award 
        based on a supplemental claim; or

           *       *       *       *       *       *       *


Chapter 57. Records and Investigations

           *       *       *       *       *       *       *


                         Subchapter I. Records

SEC. 5701. CONFIDENTIAL NATURE OF CLAIMS

           *       *       *       *       *       *       *


    (b) * * *
          (1) To a claimant or duly authorized agent or 
        representative of a claimant as to matters concerning 
        the claimant alone when, in the judgment of the 
        Secretary, such disclosure would not be injurious to 
        the physical or mental health of the claimant and to an 
        independent medical expert or experts for an advisory 
        opinion pursuant to section 5109 [or 7109] of this 
        title.

           *       *       *       *       *       *       *


Chapter 59. Agents and Attorneys

           *       *       *       *       *       *       *


SEC. 5904. RECOGNITION OF AGENTS AND ATTORNEYS GENERALLY

           *       *       *       *       *       *       *


    (c)(1) Except as provided in paragraph (4), in connection 
with a proceeding before the Department with respect to 
benefits under laws administered by the Secretary, a fee may 
not be charged, allowed, or paid for services of agents and 
attorneys with respect to services provided before the date on 
which a [notice of disagreement is filed] claimant is provided 
notice of the agency of original jurisdiction's initial 
decision under section 5104 of this title with respect to the 
case. The limitation in the preceding sentence does not apply 
to fees charged, allowed, or paid for services provided with 
respect to proceedings before a court.
    (2) A person who, acting as agent or attorney in a case 
referred to in paragraph (1) of this subsection, represents a 
person before the Department or the Board of Veterans' Appeals 
after a [notice of disagreement is filed] claimant is provided 
notice of the agency of original jurisdiction's initial 
decision under section 5104 of this title with respect to the 
case shall file a copy of any fee agreement between them with 
the Secretary pursuant to regulations prescribed by the 
Secretary.

           *       *       *       *       *       *       *


Part V. Boards, Administrations, and Services

           *       *       *       *       *       *       *


                 Chapter 71. Board of Veterans' Appeals

Sec.
7101. Composition of Board of Veterans' Appeals.
7101A. Members of Board: appointment; pay; performance review.
7102. Assignment of members of Board.
7103. Reconsideration; correction of obvious errors.
7104. Jurisdiction of the Board.
[7105. Filing of notice of disagreement and appeal.]
7105. Filing of appeal.
7105A. Simultaneously contested claims.
[7106. Administrative appeals.]
7107. Appeals: dockets; hearings.
7108. Rejection of applications.
[7109. Independent medical opinions.]
[7110. Repealed.]
7111. Revision of decisions on grounds of clear and unmistakable 
            error.
7112. Expedited treatment of remanded claims.
7113. Evidentiary record before the Board of Veterans' Appeals.

           *       *       *       *       *       *       *


SEC. 7103. RECONSIDERATION; CORRECTION OF OBVIOUS ERRORS

           *       *       *       *       *       *       *


    (b)(1) Upon the order of the Chairman for reconsideration 
of the decision in a case, the case shall be referred--
          (A) in the case of a matter originally [heard] 
        decided by a single member of the Board, to a panel of 
        not less than three members of the Board; or
          (B) in the case of a matter originally [heard] 
        decided by a panel of members of the Board, to an 
        enlarged panel of the Board.

           *       *       *       *       *       *       *


SEC. 7104. JURISDICTION OF THE BOARD

           *       *       *       *       *       *       *


    (b) Except as provided in section 5108 of this title, when 
a claim is disallowed by the Board, the claim may not 
thereafter be [reopened] readjudicated and allowed and a claim 
based upon the same factual basis may not be considered.

           *       *       *       *       *       *       *

    (d) Each decision of the Board shall include--
          (1) a written statement of the Board's findings and 
        conclusions, and the reasons or bases for those 
        findings and conclusions, on all material issues of 
        fact and law presented on the record[; and] ;
          (2) a general statement--
                  (A) reflecting whether evidence was not 
                considered in making the decision because the 
                evidence was received at a time when not 
                permitted under section 7113 of this title; and
                  (B) noting such options as may be available 
                for having the evidence considered by the 
                Department; and
          (3) [(2)] an order granting appropriate relief or 
        denying relief.

           *       *       *       *       *       *       *


SEC. 7105. FILING OF [NOTICE OF DISAGREEMENT AND] APPEAL

    (a) [Appellate review will be initiated by a notice of 
disagreement and completed by a substantive appeal after a 
statement of the case is furnished as prescribed in this 
section.] Appellate review shall be initiated by the filing of 
a notice of disagreement in the form prescribed by the 
Secretary. Each appellant will be accorded hearing and 
representation rights pursuant to the provisions of this 
chapter and regulations of the Secretary.
    [(b)(1) Except in the case of simultaneously contested 
claims, notice of disagreement shall be filed within one year 
from the date of mailing of notice of the result of initial 
review or determination. Such notice, and appeals, must be in 
writing and be filed with the activity which entered the 
determination with which disagreement is expressed (hereinafter 
referred to as the ``agency of original jurisdiction''). A 
notice of disagreement postmarked before the expiration of the 
one-year period will be accepted as timely filed.
    [(2) Notices of disagreement, and appeals, must be in 
writing and may be filed by the claimant, the claimant's legal 
guardian, or such accredited representative, attorney, or 
authorized agent as may be selected by the claimant or legal 
guardian. Not more than one recognized organization, attorney, 
or agent will be recognized at any one time in the prosecution 
of a claim.]
    (b)(1)(A) Except in the case of simultaneously contested 
claims, a notice of disagreement shall be filed within one year 
from the date of the mailing of notice of the decision of the 
agency of original jurisdiction pursuant to section 5104, 
5104B, or 5108 of this title.
    (B) A notice of disagreement postmarked before the 
expiration of the one-year period shall be accepted as timely 
filed.
    (C) A question as to timeliness or adequacy of the notice 
of disagreement shall be decided by the Board.
    (2)(A) Notices of disagreement shall be in writing, shall 
identify the specific determination with which the claimant 
disagrees, and may be filed by the claimant, the claimant's 
legal guardian, or such accredited representative, attorney, or 
authorized agent as may be selected by the claimant or legal 
guardian.
    (B) Not more than one recognized organization, attorney, or 
agent may be recognized at any one time in the prosecution of a 
claim.
    (C) Notices of disagreement shall be filed with the Board.
    (3) The notice of disagreement shall indicate whether the 
claimant requests--
          (A) a hearing before the Board, which shall include 
        an opportunity to submit evidence in accordance with 
        section 7113(b) of this title;
          (B) an opportunity to submit additional evidence 
        without a hearing before the Board, which shall include 
        an opportunity to submit evidence in accordance with 
        section 7113(c) of this title; or
          (C) a review by the Board without a hearing or the 
        submittal of additional evidence.
    (4) The Secretary shall develop a policy to permit a 
claimant to modify the information identified in the notice of 
disagreement after the notice of disagreement has been filed 
under this section pursuant to such requirements as the 
Secretary may prescribe.
    [(c) If no notice of disagreement is filed in accordance 
with this chapter within the prescribed period, the action or 
determination shall become final and the claim will not 
thereafter be reopened or allowed, except as may otherwise be 
provided by regulations not inconsistent with this title.]
    (c) If no notice of disagreement is filed in accordance 
with this chapter within the prescribed period, the action or 
decision of the agency of original jurisdiction shall become 
final and the claim shall not thereafter be readjudicated or 
allowed, except--
          (1) in the case of a readjudication or allowance 
        pursuant to a higher-level review that was requested in 
        accordance with section 5104B of this title;
          (2) as may otherwise be provided by section 5108 of 
        this title; or
          (3) as may otherwise be provided in such regulations 
        as are consistent with this title.
    [(d)(1) Where the claimant, or the claimant's 
representative, within the time specified in this chapter, 
files a notice of disagreement with the decision of the agency 
of original jurisdiction, such agency will take such 
development or review action as it deems proper under the 
provisions of regulations not inconsistent with this title. If 
such action does not resolve the disagreement either by 
granting the benefit sought or through withdrawal of the notice 
of disagreement, such agency shall prepare a statement of the 
case. A statement of the case shall include the following:
          [(A) A summary of the evidence in the case pertinent 
        to the issue or issues with which disagreement has been 
        expressed.
          [(B) A citation to pertinent laws and regulations and 
        a discussion of how such laws and regulations affect 
        the agency's decision.
          [(C) The decision on each issue and a summary of the 
        reasons for such decision.
    [(2) A statement of the case, as required by this 
subsection, will not disclose matters that would be contrary to 
section 5701 of this title or otherwise contrary to the public 
interest. Such matters may be disclosed to a designated 
representative unless the relationship between the claimant and 
the representative is such that disclosure to the 
representative would be as harmful as if made to the claimant.
    [(3) Copies of the ``statement of the case'' prescribed in 
paragraph (1) of this subsection will be submitted to the 
claimant and to the claimant's representative, if there is one. 
The claimant will be afforded a period of sixty days from the 
date the statement of the case is mailed to file the formal 
appeal. This may be extended for a reasonable period on request 
for good cause shown. The appeal should set out specific 
allegations of error of fact or law, such allegations related 
to specific items in the statement of the case. The benefits 
sought on appeal must be clearly identified. The agency of 
original jurisdiction may close the case for failure to respond 
after receipt of the statement of the case, but questions as to 
timeliness or adequacy of response shall be determined by the 
Board of Veterans' Appeals.
    [(4) The claimant in any case may not be presumed to agree 
with any statement of fact contained in the statement of the 
case to which the claimant does not specifically express 
agreement.
    [(5) The Board of Veterans' Appeals may dismiss any appeal 
which fails to allege specific error of fact or law in the 
determination being appealed.]
    (d) The Board may dismiss any appeal which fails to 
identify the specific determination with which the claimant 
disagrees.
    [(e)(1) If, either at the time or after the agency of 
original jurisdiction receives a substantive appeal, the 
claimant or the claimant's representative, if any, submits 
evidence to either the agency of original jurisdiction or the 
Board of Veterans' Appeals for consideration in connection with 
the issue or issues with which disagreement has been expressed, 
such evidence shall be subject to initial review by the Board 
unless the claimant or the claimant's representative, as the 
case may be, requests in writing that the agency of original 
jurisdiction initially review such evidence.
    [(2) A request for review of evidence under paragraph (1) 
shall accompany the submittal of the evidence.]

SEC. 7105A. SIMULTANEOUSLY CONTESTED CLAIMS

    (a) * * *
    [(b) Upon the filing of a notice of disagreement, all 
parties in interest will be furnished with a statement of the 
case in the same manner as is prescribed in section 7105. The 
party in interest who filed a notice of disagreement will be 
allowed thirty days from the date of mailing of such statement 
of the case in which to file a formal appeal. Extension of time 
may be granted for good cause shown but with consideration to 
the interests of the other parties involved. The substance of 
the appeal will be communicated to the other party or parties 
in interest and a period of thirty days will be allowed for 
filing a brief or argument in answer thereto. Such notice shall 
be forwarded to the last known address of record of the parties 
concerned, and such action shall constitute sufficient evidence 
of notice.]
    (b)(1) The substance of the notice of disagreement shall be 
communicated to the other party or parties in interest and a 
period of thirty days shall be allowed for filing a brief or 
argument in response thereto.
    (2) Such notice shall be forwarded to the last known 
address of record of the parties concerned, and such action 
shall constitute sufficient evidence of notice.

[SEC. 7106. ADMINISTRATIVE APPEALS

    [Application for review on appeal may be made within the 
one-year period prescribed in section 7105 of this title by 
such officials of the Department as may be designated by the 
Secretary. An application entered under this paragraph shall 
not operate to deprive the claimant of the right of review on 
appeal as provided in this chapter.]

[SEC. 7107. APPEALS: DOCKETS; HEARINGS

    [(a)(1) Except as provided in paragraphs (2) and (3) and in 
subsection (f), each case received pursuant to application for 
review on appeal shall be considered and decided in regular 
order according to its place upon the docket.
    [(2) A case referred to in paragraph (1) may, for cause 
shown, be advanced on motion for earlier consideration and 
determination. Any such motion shall set forth succinctly the 
grounds upon which the motion is based. Such a motion may be 
granted only--
          [(A) if the case involves interpretation of law of 
        general application affecting other claims;
          [(B) if the appellant is seriously ill or is under 
        severe financial hardship; or
          [(C) for other sufficient cause shown.
    [(3) A case referred to in paragraph (1) may be postponed 
for later consideration and determination if such postponement 
is necessary to afford the appellant a hearing.
    [(b) The Board shall decide any appeal only after affording 
the appellant an opportunity for a hearing.
    [(c) A hearing docket shall be maintained and formal 
recorded hearings shall be held by such member or members of 
the Board as the Chairman may designate. Such member or members 
designated by the Chairman to conduct the hearing shall, except 
in the case of a reconsideration of a decision under section 
7103 of this title, participate in making the final 
determination of the claim.
    [(d)(1)(A)(i) Upon request for a hearing, the Board shall 
determine, for purposes of scheduling the hearing for the 
earliest possible date, whether a hearing before the Board will 
be held at its principal location or at a facility of the 
Department or other appropriate Federal facility located within 
the area served by a regional office of the Department.
    [(ii) The Board shall also determine whether to provide a 
hearing through the use of the facilities and equipment 
described in subsection (e)(1) or by the appellant personally 
appearing before a Board member or panel.
    [(B)(i) The Board shall notify the appellant of the 
determinations of the location and type of hearing made under 
subparagraph (A).
    [(ii) Upon notification, the appellant may request a 
different location or type of hearing as described in such 
subparagraph.
    [(iii) If so requested, the Board shall grant such request 
and ensure that the hearing is scheduled at the earliest 
possible date without any undue delay or other prejudice to the 
appellant.
    [(2) A hearing to be held within an area served by a 
regional office of the Department shall (except as provided in 
paragraph (3)) be scheduled to be held in accordance with the 
place of the case on the docket under subsection (a) relative 
to other cases on the docket for which hearings are scheduled 
to be held within that area.
    [(3) A hearing to be held within an area served by a 
regional office of the Department may, for cause shown, be 
advanced on motion for an earlier hearing. Any such motion 
shall set forth succinctly the grounds upon which the motion is 
based. Such a motion may be granted only--
          [(A) if the case involves interpretation of law of 
        general application affecting other claims;
          [(B) if the appellant is seriously ill or is under 
        severe financial hardship; or
          [(C) for other sufficient cause shown.
    [(e)(1) At the request of the Chairman, the Secretary may 
provide suitable facilities and equipment to the Board or other 
components of the Department to enable an appellant located at 
a facility within the area served by a regional office to 
participate, through voice transmission or through picture and 
voice transmission, by electronic or other means, in a hearing 
with a Board member or members sitting at the Board's principal 
location.
    [(2) Any hearing provided through the use of the facilities 
and equipment described in paragraph (1) shall be conducted in 
the same manner as, and shall be considered the equivalent of, 
a personal hearing.
    [(f) Nothing in this section shall preclude the screening 
of cases for purposes of--
          [(1) determining the adequacy of the record for 
        decisional purposes; or
          [(2) the development, or attempted development, of a 
        record found to be inadequate for decisional purposes.]

SEC. 7107. APPEALS: DOCKETS; HEARINGS

    (a) Dockets.--(1) Subject to paragraph (2), the Board shall 
maintain at least two separate dockets.
    (2) The Board may not maintain more than two separate 
dockets unless the Board notifies the Committee on Veterans' 
Affairs of the Senate and the Committee on Veterans' Affairs of 
the House of Representatives of any additional docket, 
including a justification for maintaining such additional 
docket.
    (3)(A) The Board may assign to each docket maintained under 
paragraph (1) such cases as the Board considers appropriate, 
except that cases described in clause (i) of subparagraph (B) 
may not be assigned to any docket to which cases described in 
clause (ii) of such paragraph are assigned.
    (B) Cases described in this paragraph are the following:
          (i) Cases in which no Board hearing is requested.
          (ii) Cases in which a Board hearing is requested in 
        the notice of disagreement.
    (4) Except as provided in subsection (b), each case before 
the Board will be decided in regular order according to its 
respective place on the docket to which it is assigned by the 
Board.
    (b) Advancement on the Docket.--(1) A case on one of the 
dockets of the Board maintained under subsection (a) may, for 
cause shown, be advanced on motion for earlier consideration 
and determination.
    (2) Any such motion shall set forth succinctly the grounds 
upon which the motion is based.
    (3) Such a motion may be granted only--
          (A) if the case involves interpretation of law of 
        general application affecting other claims;
          (B) if the appellant is seriously ill or is under 
        severe financial hardship; or
          (C) for other sufficient cause shown.
    (c) Manner and Scheduling of Hearings for Cases on a Docket 
That May Include a Hearing.--(1) For cases on a docket 
maintained by the Board under subsection (a) that may include a 
hearing, in which a hearing is requested in the notice of 
disagreement, the Board shall notify the appellant whether a 
Board hearing will be held--
          (A) at its principal location; or
          (B) by picture and voice transmission at a facility 
        of the Department where the Secretary has provided 
        suitable facilities and equipment to conduct such 
        hearings.
    (2)(A) Upon notification of a Board hearing at the Board's 
principal location as described in subparagraph (A) of 
paragraph (1), the appellant may alternatively request a 
hearing as described in subparagraph (B) of such paragraph. If 
so requested, the Board shall grant such request.
    (B) Upon notification of a Board hearing by picture and 
voice transmission as described in subparagraph (B) of 
paragraph (1), the appellant may alternatively request a 
hearing as described in subparagraph (A) of such paragraph. If 
so requested, the Board shall grant such request.
    (d) Screening of Cases.--Nothing in this section shall be 
construed to preclude the screening of cases for purposes of--
          (1) determining the adequacy of the record for 
        decisional purposes; or
          (2) the development, or attempted development, of a 
        record found to be inadequate for decisional purposes.
    (e) Policy on Changing Dockets.--The Secretary shall 
develop and implement a policy allowing an appellant to move 
the appellant's case from one docket to another docket.

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[SEC. 7109. INDEPENDENT MEDICAL OPINIONS

    [(a) When, in the judgment of the Board, expert medical 
opinion, in addition to that available within the Department, 
is warranted by the medical complexity or controversy involved 
in an appeal case, the Board may secure an advisory medical 
opinion from one or more independent medical experts who are 
not employees of the Department.
    [(b) The Secretary shall make necessary arrangements with 
recognized medical schools, universities, or clinics to furnish 
such advisory medical opinions at the request of the Chairman 
of the Board. Any such arrangement shall provide that the 
actual selection of the expert or experts to give the advisory 
opinion in an individual case shall be made by an appropriate 
official of such institution.
    [(c) The Board shall furnish a claimant with notice that an 
advisory medical opinion has been requested under this section 
with respect to the claimant's case and shall furnish the 
claimant with a copy of such opinion when it is received by the 
Board.]

SEC. 7111. REVISION OF DECISIONS ON GROUNDS OF CLEAR AND UNMISTAKABLE 
                    ERROR

           *       *       *       *       *       *       *


    (e) Such a request shall be submitted directly to the Board 
and shall be decided by the Board on the merits[, without 
referral to any adjudicative or hearing official acting on 
behalf of the Secretary].

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SEC. 7113. EVIDENTIARY RECORD BEFORE THE BOARD OF VETERANS' APPEALS

    (a) Cases With No Request for a Hearing or Additional 
Evidence.--For cases in which a hearing before the Board of 
Veterans' Appeals is not requested in the notice of 
disagreement and no request was made to submit evidence, the 
evidentiary record before the Board shall be limited to the 
evidence of record at the time of the decision of the agency of 
original jurisdiction on appeal.
    (b) Cases With a Request for a Hearing.--(1) Except as 
provided in paragraph (2), for cases in which a hearing is 
requested in the notice of disagreement, the evidentiary record 
before the Board shall be limited to the evidence of record at 
the time of the decision of the agency of original jurisdiction 
on appeal.
    (2) The evidentiary record before the Board for cases 
described in paragraph (1) shall include each of the following, 
which the Board shall consider in the first instance:
          (A) Evidence submitted by the appellant and his or 
        her representative, if any, at the Board hearing.
          (B) Evidence submitted by the appellant and his or 
        her representative, if any, within 90 days following 
        the Board hearing.
    (c) Cases With No Request for a Hearing and With a Request 
for Additional Evidence.--(1) Except as provided in paragraph 
(2), for cases in which a hearing is not requested in the 
notice of disagreement but an opportunity to submit evidence is 
requested, the evidentiary record before the Board shall be 
limited to the evidence considered by the agency of original 
jurisdiction in the decision on appeal.
    (2) The evidentiary record before the Board for cases 
described in paragraph (1) shall include each of the following, 
which the Board shall consider in the first instance:
          (A) Evidence submitted by the appellant and his or 
        her representative, if any, with the notice of 
        disagreement.
          (B) Evidence submitted by the appellant and his or 
        her representative, if any, within 90 days following 
        receipt of the notice of disagreement.

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