99–010 

Calendar No. 654 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–354 

CLAIMS PROCESSING IMPROVEMENT ACT OF 2010 

NOVEMBER 29, 2010.—Ordered to be printed 

Mr. AKAKA, from the Committee on Veterans’ Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 3517] 

The Committee on Veterans’ Affairs (hereinafter, ‘‘the Committee’’), to which was referred the bill (S. 3517), to amend title 38, 

United States Code (hereinafter, ‘‘U.S.C.’’), to improve the processing of claims for disability compensation filed with the Department of Veterans Affairs (hereinafter, ‘‘VA’’), 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 June 22, 2010, Committee Chairman Daniel K. Akaka introduced S. 3517, the proposed ‘‘Claims Processing Improvement Act 

of 2010.’’ Senators Murray, Rockefeller, and Schumer were later 

added as cosponsors. S. 3517, as introduced, would amend title 38 

to improve the processing of disability compensation claims at VA, 

and for other purposes. The bill was referred to the Committee. 

Earlier, on May 12, 2010, Chairman Akaka introduced S. 3348, 

to provide for the treatment of documents that express disagreement with decisions of the Board of Veterans’ Appeals (hereinafter, 

‘‘Board’’) and that are misfiled with the Board within 120 days of 

such decisions as motions for reconsideration of such decisions. The 

bill was referred to the Committee. 

On May 13, 2010, Chairman Akaka introduced S. 3367, to increase the rate of pension for disabled veterans who are married 

to one another and both of whom require regular aid and attendance, and for other purposes. The bill was referred to the Committee. 

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On May 13, 2010, Chairman Akaka introduced S. 3368, to authorize certain individuals to sign claims filed with VA on behalf 

of claimants. The bill was referred to the Committee. 

On May 13, 2010, Chairman Akaka introduced S. 3370, to improve the process by which an individual files jointly for Social 

Security and dependency and indemnity compensation (hereinafter, 

‘‘DIC’’), and for other purposes. The bill was referred to the Committee. 

On May 19, 2010, the Committee held a hearing on the abovereferenced bills and other benefits-related legislation. Testimony on 

the above-referenced bills was offered by: Thomas J. Pamperin, Associate Deputy Under Secretary for Policy and Program Management, Veterans Benefits Administration, Department of Veterans 

Affairs; Ian DePlanque, Assistant Director, Veterans Affairs and 

Rehabilitation Commission, The American Legion; Eric A. Hilleman, National Legislative Director, Veterans of Foreign Wars of 

the United States; Rick Weidman, Executive Director for Policy 

and Government Affairs, Vietnam Veterans of America; and Tom 

Tarantino, Legislative Associate, Iraq and Afghanistan Veterans of 

America. 

On June 16, 2010, Chairman Akaka introduced S. 3499, the proposed ‘‘Fiduciary Benefits Oversight Act of 2010.’’ S. 3499 would 

authorize VA to obtain financial records of fiduciaries of individuals 

receiving benefits from VA. The bill was referred to the Committee. 

On July 14, 2010, the Committee held a hearing entitled ‘‘Review 

of Veterans Claims Processing: Are Current Efforts Working?’’ Testimony on S. 3517 was offered by: Michael Walcoff, Acting Under 

Secretary for Benefits, Veterans Benefits Administration, Department of Veterans Affairs; Joseph Thompson, Former Under Secretary for Benefits; Linda Jan Avant, Rating Specialist, Little Rock, 

Arkansas Regional Office, and 1st Vice President, Local 2054, 

American Federation of Government Employees; Richard Cohen, 

Executive Director, National Organization of Veterans’ Advocates, 

Inc.; and Joe Violante, National Legislative Director, Disabled 

American Veterans, on behalf of The Independent Budget. 

COMMITTEE MEETING

After carefully reviewing the testimony from the foregoing hearings, the Committee met in open session on August 5, 2010, to consider, among other legislation, an amended version of S. 3517, consisting of provisions from S. 3517 as introduced and provisions from 

the other legislation noted above. The Committee voted, without 

dissent, to report favorably S. 3517 as amended and as subsequently amended during the markup. 

SUMMARY OF S. 3517 AS REPORTED

S. 3517, as reported (hereinafter, ‘‘the Committee bill’’), consists 

of 22 sections, summarized below: 

Section 1 would provide a short title and table of contents. 

Section 2 would provide for partial adjudication of claims consisting of multiple issues, one or more of which can be quickly adjudicated. 

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Section 3 would authorize certain individuals to sign claims filed 

with VA on behalf of claimants who are incompetent or physically 

incapable of signing. 

Section 4 would clarify that the requirement that VA provide notice to claimants of additional information and evidence applies 

only when additional evidence or information is actually required 

to substantiate and grant a claim. 

Section 5 would require that equal deference be accorded to private medical opinions in assessing claims for disability compensation. 

Section 6 would require that claims that have the potential of 

being adjudicated quickly, as determined by experienced claims adjudicators, be expedited. It would also authorize VA to establish 

procedures related to fully-developed claims. 

Section 7 would authorize VA to utilize a retroactive effective 

date when awarding disability compensation based on applications 

that are fully-developed when submitted. 

Section 8 would require that VA send, with a rating decision, a 

form that, if completed and returned, would suffice as a Notice of 

Disagreement (hereinafter, ‘‘NOD’’). 

Section 9 would improve the process by which an individual files 

jointly for Social Security benefits and DIC. 

Section 10 would authorize VA to obtain financial records of fiduciaries of individuals receiving benefits from VA. 

Section 11 would provide for the treatment of documents that express disagreement with decisions of the Board and that are 

misfiled with the Board within 120 days of such decisions as motions for reconsideration of such decisions. 

Section 12 would modify the filing period for NODs from one 

year to 180 days, with a good cause exception. 

Section 13 would replace VA’s obligation to provide a Statement 

of the Case with an obligation to provide a new, plain-language decision in the case. 

Section 14 would require a claimant to file a substantive appeal 

within 60 days of VA issuing a post-NOD decision, with a good 

cause exception. 

Section 15 would automatically waive the review of new evidence 

by the agency of original jurisdiction so that certain evidence submitted on or after the date a substantive appeal is filed will be subject to initial review by the Board, unless review by the agency of 

original jurisdiction is requested. 

Section 16 would require the Board to present an appellant with 

the options for a Board hearing and with a recommendation to the 

appellant of the option that would lead to the earliest possible date 

for the hearing and with statistics for the average wait experienced 

for similarly situated appellants. 

Section 17 would require the United States Court of Appeals for 

Veterans Claims (hereinafter, ‘‘the Court’’) to decide all issues 

raised by an appellant. 

Section 18 would allow a good cause extension, not to exceed 120 

days, for filing a notice of appeal with the Court. 

Section 19 would require VA to carry out a pilot program on collaboration with tribal governments to improve the quality of claims 

for disability compensation. 

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Section 20 would increase the rate of pension for disabled veterans who are married to one another and who both require regular aid and attendance. 

Section 21 would require VA to automatically increase the rates 

of disability compensation, DIC, and other rates whenever there is 

an increase in Social Security benefits. 

Section 22 would require VA to create an action plan to improve 

the correlation between employee compensation and performance. 

BACKGROUND AND DISCUSSION

Sec. 2. Adjudication of claims for disability compensation consisting 

of multiple issues one or more of which can be quickly adjudicated. 

Section 2 of the Committee bill, which is derived from S. 3517 as 

introduced, would provide for partial adjudication of claims consisting of multiple issues, one or more of which can be quickly adjudicated. 

Background. As of July 2010, it took, on average, 163.1 days for 

VA to complete a rating decision for a claim for compensation. Although this is better than the average for Fiscal Year (hereinafter, 

‘‘FY’’) 2008, which was 178.9 days, the average veteran waits nearly five and one-half months for a claim for compensation to be adjudicated. VA is predicting that, by the end of FY 2011, it will take 

on average 190 days to complete a claim. These timeframes do not 

include those decisions that are appealed. 

VA realized a 14.1 percent increase in claims receipts in 2009; 

projected a 16.2 percent increase in 2010; and projected a 12 percent increase in 2011. The volume of claims received has increased 

from 578,773 in 2000 to 1,013,712 in 2009 (a 75 percent increase). 

Many factors, including an aging veteran population, a decade of 

America’s involvement in overseas conflicts, new laws and regulations, and greater outreach, have contributed to this increase in 

claims receipts. 

Through July 2010, VA completed 870,921 claims while taking in 

938,958 claims. In addition, during the month of July, VA had approximately 508,000 pending disability claims, about 173,000 (35 

percent) of which were pending for longer than VA’s strategic target of 125 days. This means that VA is taking in much more work 

than it can complete in a timely manner, despite a significant increase in staffing and several new initiatives aimed at bringing 

down the backlog. 

Also, original disability claims with eight or more issues increased from 22,776 in 2001 to 67,175 in 2009—a nearly 200 percent increase. This increase in the number of issues per claim further complicates an already complex process. 

Committee Bill. Section 2 of the Committee bill would amend section 1157 of title 38, by adding a new subsection (b) to require VA 

to assign intermediate ratings for claims of compensation that have 

more than one condition and VA determines that a disability rating 

can be assigned with respect to one or more conditions within those 

claims without further development. 

This provision of the Committee bill would also require, in subparagraph (A) of (b)(1), that VA assign the disability rating expeditiously. New subparagraph (B) of new subsection (b)(1) would reVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
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quire that VA continue to develop the remaining conditions. New 

subsection (b)(2) would require that, if VA is able to assign a rating 

with respect to a remaining condition or conditions, then VA would 

combine such ratings with the intermediate rating or ratings previously assigned. 

VA would further have the discretion, in new subsection (b)(3), 

to assign an intermediate rating and then continue development of 

such condition and reassess the rating. All of these changes would 

take effect on the date of enactment and apply to claims filed on 

or after the date that is 60 days after enactment. 

It is the Committee’s view that partial adjudication of claims 

would be beneficial to veterans, given that the average time to complete adjudication of a claim is nearly five and a half months, because at least partial payment of disability compensation could 

begin while that process is ongoing. 

Sec. 3. Authority for certain individuals to sign claims filed with 

Secretary of Veterans Affairs on behalf of claimants. 

Section 3 of the Committee bill, which is derived from S. 3368, 

would authorize certain individuals to sign claims filed with VA on 

behalf of claimants who are under age 18, are mentally incompetent, or are physically unable to sign a form. 

Background. Some claimants for VA benefits are so disabled as 

to be incapable of understanding the information on a benefits application form. Under current law, section 5101 of title 38, VA lacks 

specific authority to authorize a court-appointed representative or 

caregiver to sign an application form allowing the adjudication of 

the claim to proceed. However, the Social Security Administration 

(hereinafter, ‘‘SSA’’) has specific authority in section 404.612 of title 

20 of the Code of Federal Regulations (hereinafter, ‘‘CFR’’) to permit certain individuals, such as court-appointed representatives, to 

sign a claim form on behalf of an individual unable to understand 

and sign a claim form. 

Committee Bill. Section 3 of the Committee bill would amend section 5101 of title 38 to modify the application process for claims 

filed with VA to allow court-appointed representatives or caregivers 

to sign applications from individuals who are under 18 years of 

age, mentally incompetent, or physically unable to sign a form. 

These changes would apply with respect to claims filed on or after 

the date of enactment. 

This change will give VA the same authority that SSA has with 

respect to claimants who are unable to complete applications for 

benefits without requiring assistance. The Committee does not intend that this provision alter VA’s responsibility to evaluate and 

appoint a fiduciary in cases where the beneficiary is determined to 

be incompetent to manage his or her benefits. 

Sec. 4. Clarification that requirement of Secretary of Veterans Affairs to provide notice to claimants of additional information 

and evidence required only applies when additional information or evidence is actually required. 

Section 4 of the Committee bill, which is derived from S. 3517 as 

introduced, would clarify a provision in current law that VA is obligated to provide notice to claimants of additional information and 

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evidence only when additional evidence or information is actually 

required to substantiate and grant a claim. 

Background. Section 5103(a)(1) of title 38 requires VA to provide 

notice, upon receipt of a complete or substantially complete application, to a claimant and a claimant’s representative, if any medical 

or lay evidence not previously provided is necessary to substantiate 

the claim. As part of that notice, VA is required to indicate which 

portion of that information and evidence, if any, is to be provided 

by the claimant and which portion, if any, VA will attempt to obtain on behalf of the claimant. VA has developed initiatives to adjudicate ‘‘fully developed claims,’’ those for which the veteran submits 

all information and medical or lay evidence needed to adjudicate 

the claim with the application for benefits. 

If the evidence submitted in support of a claim, together with 

any evidence previously submitted, is sufficient to substantiate the 

claim, there would be no additional information or evidence to notify the veteran to submit. In such cases, VA should proceed to adjudicate the claim. For example, if a veteran, who has a previous 

determination of service in the Republic of Vietnam and has been 

service-connected for diabetes in a prior adjudication, submits evidence of a diagnosis of prostate cancer and current treatment for 

the condition at a VA facility, VA has sufficient evidence to both 

substantiate and grant the claim without the need for additional 

information or evidence. In such a case, there would be no need for 

VA to ‘‘notify the claimant and the claimant’s representative’’ of information or evidence to substantiate the claim. 

Committee Bill. Section 4 of the Committee bill would amend section 5103(a)(1) of title 38 to require VA to provide notice to a claimant and a claimant’s representative that additional information 

and evidence is required only when additional information or evidence is actually required to substantiate and grant a claim. These 

changes would apply with respect to claims filed on or after the 

date that is 60 days after the date of enactment. 

Sec. 5. Equal deference to private medical opinions in assessing 

claims for disability compensation. 

Section 5 of the Committee bill would provide for equal deference 

to private medical opinions in assessing claims for disability. 

Background. Section 5125 of title 38, provides that, for purposes 

of establishing any claim for benefits under chapters 11 or 15, a 

private medical opinion that is provided by a claimant in support 

of a claim for benefits ‘‘may be accepted without a requirement for 

confirmation by an examination by a [VA employee] if the report 

is sufficiently complete to be adequate for the purpose of adjudicating such claim.’’ 

Further, under section 5103A(d) of title 38, VA is required to provide an examination or medical opinion when either is necessary 

to adjudicate a claim. Section 5103A(d)(2) provides that an examination is required when the information of record: ‘‘(A) contains 

competent evidence that the claimant has a current disability, or 

persistent or recurrent symptoms of disability; and (B) indicates 

that the disability or symptoms may be associated with the claimant’s active military, naval, or air service; but (C) does not contain 

sufficient medical evidence for [VA] to make a decision on the 

claim.’’ 

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However, it appears that VA in some cases orders a medical evaluation despite having a private, non-VA, medical opinion already 

on record that should be sufficient to make a decision on the claim. 

For example, in testimony before the Committee during an oversight hearing on July 9, 2008, regarding undue delay in claims 

processing, the witness representing the Disabled American Veterans provided an example of VA’s non-utilization of private medical opinions. 

The Committee was presented with testimony about a veteran, 

who served 25 years honorably and was diagnosed with a right 

lumbar strain following a lifting injury in February 1963, after a 

20 foot fall while rappelling, and once more when he was thrown 

from the vehicle while swerving to avoid a landmine in Vietnam. 

The veteran had a medical history containing months-long spans 

of back pain accompanied by neurological symptoms that were reported in 1966, 1968, 1973, 1974, and 1976. X-rays of the veteran’s 

lower back taken prior to military discharge revealed an injury, 

and numerous private treatment records following discharge continued to document a definite disability. A board-certified orthopedic surgeon, who was also an Associate Professor of Orthopedic 

Surgery, diagnosed the veteran with degenerative joint disease of 

the lumbar spine with spinal stenosis. Later, VA received a medical 

opinion from this same orthopedic surgeon wherein he stated his 

belief that, in all likelihood, the Vietnam War injuries contributed 

to his early onset of arthritis and spinal stenosis. 

The veteran filed a claim for service connection for his lower 

back condition in January 2002, wherein he provided a detailed explanation of the circumstances of his injuries during service and 

the reasoning behind his failure to seek treatment in service. He 

submitted a statement to VA that all doctors who provided medical 

opinions on his condition had an opportunity to review a complete 

copy of his service medical records. A few months later VA received 

another medical opinion from a second board-certified orthopedic 

surgeon, an Associate Professor of Orthopedic Surgery, who stated 

that he had treated the veteran since March 1993 for chronic back 

issues and that he had reviewed the veteran’s service medical 

records. The opinion stated that the veteran’s ‘‘condition is a continuation of the difficulties he developed in the service.’’ The veteran submitted a second medical (totaling three) opinion from one 

of the surgeons stating that the lower back pain complaints he had 

while in the military ‘‘gradually progressed to the point where he 

now has post-traumatic arthritis of the lumbar spine.’’ A second 

opinion from the other surgeon (totaling four) was submitted that 

stated, ‘‘[h]e had problems dating back to 1974 * * *. I have reviewed his medical service record which indicates this difficulty to 

that point in time.’’ 

In developing the claim, the VA conducted an examination of the 

veteran, and requested an additional medical opinion, despite the 

four opinions already of record. The examination and medical opinion was performed by a non-certified physician assistant (‘‘PA’’ 

rather than ‘‘PA-C’’). Failing to refer to all of the treatment records 

in service, and without acknowledging the evidence that included 

four opinions presented by the two orthopedic surgeons, the physician assistant’s opinion explored the likelihood that the veteran’s 

condition was congenital and age related, thus not related to his 

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service. Based on the physician assistant’s opinion, the VA did not 

grant the claim. 

The veteran in the example above obtained evidence from multiple physicians. VA, in turn, obtained a contradictory opinion from 

one provider with lower credentials than all four physicians relied 

upon by the veteran. Hence, it appears that no deference was provided to the four physicians from whom medical opinions were 

obtained. 

Committee Bill. Section 5 of the Committee bill would add a new 

section to title 38, section 5103B, that would require that, if a 

claimant submits a private medical opinion in support of a claim 

for disability compensation and that opinion satisfies any standards established by VA, the opinion would be treated with the 

same deference as a medical opinion provided by a VA health care 

provider. However, if the private medical opinion is found by VA 

to be competent, credible, and probative, but otherwise not entirely 

adequate for purposes of assigning a disability rating or determining service-connection, and VA determines that a medical opinion from a Department health care provider, to include a health 

care provider under contract with VA, is necessary for such purposes, VA would be required to obtain from an appropriate Department health care provider, a medical opinion that is adequate for 

such purposes. In the event that such an opinion is obtained, this 

provision further requires that VA, to the extent feasible, provide 

an opinion from a Department health care provider who has expertise in the same area as the private medical provider, if the private provider had opined on a pertinent issue within his or her 

expertise. 

This section would also amend section 5103(a) of title 38 by adding a new paragraph (3), to require VA to notify a claimant, as the 

Secretary considers appropriate, regarding the rights of the claimant to assistance under section 5103A and, if the claimant submits 

a private medical opinion in support of the claim for disability compensation, how such medical opinion will be treated under new section 5103B. 

The Committee does not intend that the effect of this provision 

will be to tie VA’s hands with respect to private medical evidence— 

VA would be required to treat the private medical opinion with 

equal deference if, and only if, such opinion satisfies standards established by the Secretary. One goal of this change is to eliminate 

overdevelopment of claims, which in turn may provide a decision 

on disability compensation for a veteran in a timelier manner, as 

well as allow VA resources to be used in areas which may need 

them more. 

The Committee further believes that there is, at a minimum, a 

perception of unfairness, if VA relies more heavily on a negative 

VA medical opinion from an examiner with lesser credentials, rather than the favorable medical opinions from one or more private 

medical examiners who provide competent, credible, and probative 

opinions with greater credentials than the VA examiner. 

Sec. 6. Improvements to disability compensation claim review 

process. 

Section 6 of the Committee bill, which is derived from S. 3517 as 

introduced, would require expedited review of initial claims for disVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
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ability compensation that have the potential of being adjudicated 

quickly. It would also authorize VA to establish procedures for 

fully-developed claims. 

Background. As noted in the discussion of section 2 of the Committee bill, the average time for the adjudication of an initial claim 

for disability compensation is five and a half months. In addition, 

as also discussed above, initial claims for compensation are growing increasingly complex as the number of claimed issues increases. 

Committee Bill. Subsection (a) of section 6 of the Committee bill 

would add a new section to title 38—5103C, entitled ‘‘Expedited review of claims for disability compensation,’’ which would require, in 

new subsection (a), VA to establish a process for the rapid identification of initial claims for disability compensation that should receive priority in review. 

Subsection (b) of new section 5103C would require VA to assign 

employees who are experienced in the processing of claims for disability compensation to carry out a preliminary review of all initial 

claims for disability compensation submitted to VA in order to 

identify if: the claims have the potential of being adjudicated quickly, they qualify for priority treatment, and a temporary disability 

rating could be assigned. 

Subsection (c) of new section 5103C would require VA to give priority to claims that have the potential of being adjudicated quickly. 

This subsection would also allow VA to prescribe by regulations the 

order of priority of claims for disability compensation, which allows 

some claims to be placed ahead of others for purposes of adjudication. 

Subsection (b) of section 6 of the Committee bill would add a new 

section to title 38—section 5103D, entitled ‘‘Procedures for fully developed claims,’’ which would allow a claimant to notify VA that he 

or she has no additional information or evidence to submit. VA 

would then be required to undertake any development necessary to 

obtain any Federal records, medical examinations, or opinions relevant to the claim and decide the claim based on all the evidence 

of record. 

New section 5103C would take effect 90 days after the date of 

enactment and new section 5103D would take effect on the date of 

enactment. 

Sec. 7. Authority for retroactive effective date for awards of disability compensation in connection with applications that are 

fully-developed at submittal. 

Section 7, which was accepted as an amendment during Markup 

of the Committee bill, would allow up to a one year retroactive effective date for awards of disability compensation that are based on 

claims that are fully-developed when submitted to VA. 

Background. Under section 221 of Public Law 110–389, the Veterans’ Benefits Improvement Act of 2008, VA was required to conduct a pilot project to test ‘‘the feasibility and advisability of providing expeditious treatment of fully developed compensation or 

pension claims to ensure that such claims are adjudicated not later 

than 90 days after the date on which such claim is submitted as 

fully developed.’’ After carrying out that pilot at 10 VA regional offices, VA expanded the fully-developed claim process to all VA regional offices. At a July 14, 2010, hearing before the Committee, 

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VA’s Acting Under Secretary for Benefits explained that, ‘‘if VA receives all of the available evidence when the claim is submitted, 

the remaining steps in the claims-decision process can be expedited 

without compromising quality.’’ 

However, under current law, there is a potential disincentive for 

veterans to file fully-developed claims. That is because, under section 5110(a) of title 38, the effective date of an award of disability 

compensation generally cannot be earlier than the date on which 

VA received the application for those benefits. Although there are 

exceptions to that general rule, none of the exceptions would allow 

a retroactive effective date for veterans who file fully-developed 

claims. Accordingly, if a veteran takes time before filing a claim to 

gather the necessary information and evidence so as to ensure that 

the claim is fully-developed, the veteran could potentially lose out 

on benefits for the period between when the veteran began gathering the evidence and when he or she ultimately filed a fully-developed claim. 

Committee Bill. Section 7 of the Committee bill would amend section 5110 of title 38 to provide that the effective date of an award 

of disability compensation to a veteran who submitted a fully-developed claim would be based on the facts found but would not be earlier than one year before the date on which VA received the veteran’s application. 

It is the Committee’s expectation that, by allowing an effective 

date up to one year earlier than the date on which a fully-developed claim is filed, more veterans will be encouraged to file fullydeveloped claims and, in return, receive faster decisions on their 

claims. 

Sec. 8. Provision by Secretary of Veterans Affairs of Notice of Disagreement forms to initiate appellate review with notices of decisions of Department of Veterans Affairs. 

Section 8 of the Committee bill, which is derived from S. 3517 as 

introduced, would require VA to develop a form that suffices as an 

NOD, as required to initiate appellate review under current law. 

Background. Under current law, section 511 of title 38, VA is required to decide all questions of law and fact necessary to a decision under a law that affects its provision of benefits to veterans 

or dependents or survivors of veterans. VA’s decision is final and 

conclusive and may not be reviewed by any other official or court, 

unless it is a matter subject to judicial review by the United States 

Court of Appeals for Veterans Claims, or it pertains to insurance 

programs administered by VA or housing and small business programs administered by VA. 

Section 5104(a) of title 38 requires VA to provide a claimant and 

the claimant’s representative timely notice of decisions under section 511 that affect the provision of benefits to a claimant. That notice must include an explanation of how to obtain review of the decision. In addition, section 5104(b) provides that, if VA denies a 

benefit sought, the notice must include a statement of the reasons 

for the decision and a summary of the evidence relied upon by VA. 

Pursuant to section 7105 of title 38, once notice has been given 

to the claimant, the claimant must initiate appellate review by filing an NOD within one year, if the claimant wishes to have the 

decision reviewed. This initial step in the appeals process is manVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
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datory. Under current VA regulations, section 20.201 of title 38, 

CFR, an NOD is defined as a ‘‘written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of 

original jurisdiction and a desire to contest the result.’’ 

Committee Bill. Section 8 of the Committee bill would amend section 5104(b) so as to require VA, in addition to providing a statement of the reasons for the decision and a summary of the evidence 

relied upon by VA in making a decision to provide an explanation 

of the procedure for obtaining review of the decision and a copy of 

a form that, once completed, will serve as an NOD. The explanation of the procedure for obtaining review of the decision would 

be required to include the period prescribed under paragraph (1) of 

section 7105(b) of title 38 for filing an NOD and the good cause exception under new paragraph (3) of section 7105(b), as amended by 

section 12 of the Committee bill. These changes would take effect 

on the date that is 180 days after enactment. 

Given the complexity of the VA adjudication and appeals process, 

it is the Committee’s belief that providing a form to the claimant 

that would suffice as the first step in obtaining appellate review 

would be beneficial to the claimant and should speed up the overall 

process. 

Sec. 9. Improvement of process for filing jointly for Social Security 

and dependency and indemnity compensation. 

Section 9 of the Committee bill, which is derived from S. 3370, 

would codify VA’s current practice of allowing any claim for survivor benefits filed with SSA to establish the effective date for DIC 

benefits. 

Background. Under current law, section 5105 of title 38, VA and 

SSA are required to develop and use joint applications for survivor 

benefits for those who apply for both DIC and Social Security survivor benefits. Section 5105 further provides that, if such a joint 

application form is filed with either VA or SSA, it will be deemed 

an application for both DIC and Social Security benefits. However, 

at present, SSA applications are primarily online and VA’s are 

paper-based. 

In a recent court case, Van Valkenburg v. Shinseki, 23 Vet. App. 

113 (2009), VA represented to the Court that ‘‘there has never been 

an individual ‘jointly prescribed form’ promulgated between VA and 

SSA’’ and that, ‘‘in practice, a claim for survivor’s benefits can be 

filed on any form, with either VA or SSA, when the applicant reflects an intent to seek such benefits.’’ The Court accepted the Secretary’s representation that ‘‘any claim, sufficient to reflect an intent to apply for survivor’s benefits, that is filed with SSA will suffice to establish the effective date of DIC.’’ 

Committee Bill. Section 9 of the Committee bill would amend section 5105 of title 38 to permit—but not require—the development 

of a joint form for SSA and VA survivor benefits. This provision of 

the Committee bill would also amend section 5105 so that any form 

indicating an intent to apply for survivor benefits would be deemed 

an application for both DIC and Social Security benefits. This is intended to codify VA’s practice under which any indication of intent 

to apply for Social Security survivor benefits is also treated as an 

application for VA DIC survivor benefits. 

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Sec. 10. Access by Secretary of Veterans Affairs to financial records 

of individuals represented by fiduciaries and receiving benefits 

under laws administered by Secretary. 

Section 10 of the Committee bill, which is derived from S. 3499, 

would authorize VA to obtain the financial records of fiduciaries 

from financial institutions. 

Background. Under section 5502(a)(1) of title 38, beneficiaries 

who have been determined by VA to be incompetent to handle their 

financial affairs may have a fiduciary appointed by VA to receive 

their benefits. Section 5502(a)(2) of title 38 allows the Secretary to 

authorize a reasonable commission for services rendered by an appointed fiduciary, if the appointment is necessary to obtain services 

that are in the best interests of the beneficiary. Under section 

5502(b) of title 38, VA is responsible for monitoring the activity of 

fiduciaries to assure that the monies paid to the fiduciary are used 

only for the beneficiary and the beneficiary’s dependents. 

VA may request that a fiduciary sign a release of information to 

enable VA to obtain the records of a financial institution in order 

to review such records in the course of its oversight of the fiduciary. There is currently no specific sanction if a fiduciary refuses 

or neglects to sign an authorization. Under section 1104 of Public 

Law 95–630, the Financial Institutions Regulatory and Interest 

Rate Control Act of 1978, codified at section 3404 of title 12, United 

States Code, any release signed by a fiduciary is valid ‘‘for a period 

not in excess of three months.’’ This amount of time is not always 

adequate for VA to properly monitor the financial accounts of certain fiduciaries. 

The Social Security Administration, which is responsible for similar monitoring of benefits paid to ‘‘representative payees’’ of beneficiaries of their programs, has authority to obtain financial records 

for proper administration of its programs under section 3413 of 

title 12, United States Code, without the time limitation applicable 

to VA. 

Committee Bill. Section 10 of the Committee bill would amend 

section 5502 of title 38 to add a new subsection (f) that would authorize VA to access the financial records of fiduciaries of individuals receiving benefits. 

New subsection (f) of section 5502 would allow VA to require any 

person appointed or recognized as a fiduciary for a VA benefit to 

provide authorization for VA to obtain from any financial institution any financial record held by the institution with respect to the 

fiduciary or beneficiary if VA determines that the financial record 

is necessary for the administration of any program administered by 

VA, or to safeguard a beneficiary’s benefits against neglect, misappropriation, misuse, embezzlement, or fraud. 

Under new subsection 5502(f) an authorization by a fiduciary 

would remain in effect until the earlier of: an approval by a court 

or VA of a final accounting of payment of any VA-administered 

benefit; in the absence of any evidence of neglect, misappropriation, 

misuse, embezzlement, or fraud, the express revocation by the fiduciary of the authorization in a written notification to VA; or three 

years after the date of the authorization. 

Were a fiduciary to refuse to provide or to revoke any authorization to permit VA to obtain financial records, new subsection 

5502(f) would allow VA to remove the appointment of recognition 

13 

of the fiduciary for such beneficiary and any other VA beneficiary 

for whom the fiduciary has been appointed or recognized. 

The Committee expects that enactment of this provision would 

improve the ability of VA to identify and prevent neglect, misappropriation, misuse, embezzlement, or fraud involving VA monies paid 

to fiduciaries. This provision will provide VA with authority similar 

to that provided to the Social Security Administration for similar 

beneficiaries of its programs. 

Sec. 11. Treatment of certain misfiled documents as motions for reconsideration of decisions by Board of Veterans’ Appeals. 

Section 11 of the Committee bill, which is derived from S. 3348, 

would provide for the treatment of documents that express disagreement with decisions of the Board and that are misfiled with 

the Board or an agency of original jurisdiction (hereinafter, ‘‘AOJ’’) 

within 120 days of such decisions as motions for reconsideration of 

such decisions. 

Background. If a claimant disagrees with a Board decision, the 

claimant has the option, under section 7103 of title 38, to ask the 

Board for reconsideration or to appeal to the U.S. Court of Appeals 

for Veterans Claims pursuant to section 7266 of title 38. Under section 7266, an appeal to that Court must be filed with the Court 

within 120 days after notice of the Board decision is mailed to the 

claimant. Veterans or their family members are sometimes confused by this process and incorrectly send the Notice of Appeal to 

one of VA’s offices. If that happens and the Notice of Appeal is not 

forwarded to the Court within the 120-day window, the appeal 

eventually may be dismissed by the Court as untimely. 

In Posey v. Shinseki, 23 Vet. App. 406 (2010), the Court discussed this problematic situation where claimants notify VA of 

their disagreement with a decision of the Board but mistakenly 

send their documents to VA instead of the Court. The Court suggested that VA be held accountable for properly receiving and forwarding Notices of Appeal. 

Judge Hagel wrote a concurring opinion that includes this observation: 

It has become clear to me that VA somewhat routinely 

holds correspondence from claimants that it determines, 

sometime after receipt, are Notices of Appeal to this Court. 

As a result, in far too many cases, the Court receives the 

Notice of Appeal from VA only after the 120-day appeal period has expired, permitting the Secretary to then move to 

dismiss the appeals for lack of jurisdiction * * *. 

As one possible solution, Judge Hagel made this suggestion: 

Another option*** would be for Congress to amend 

38 U.S.C. 7103 (governing reconsideration of Board decisions) or 38 U.S.C. 7266 (regarding Notices of Appeal) to 

include language providing that a Notice of Appeal filed 

with VA during the 120-day appeal period following an adverse Board decision will be treated as a motion for reconsideration of the Board decision if VA does not forward the 

Notice of Appeal to the Court in a timely manner. 

14 

Committee Bill. Section 11 of the Committee bill would amend 

section 7103 of title 38 to add a new subsection (c), to provide that 

a Notice of Appeal sent to VA, instead of the Court, will be considered as a motion for reconsideration by the Board in certain circumstances. Specifically, this new subsection would provide that, if 

a person, within the 120-day appeal period, files a document with 

the Board or the AOJ, expressing disagreement with a Board decision and has not yet filed a Notice of Appeal with the Court, the 

document will be treated as a motion for reconsideration, unless 

the Board or AOJ determines that the document expresses an intent to appeal to the Court and forwards the document to the Court 

within the 120-day appeal period and the Court receives the document within the 120-day period. This change would treat the notice 

sent to VA as a request for reconsideration of the Board decision, 

thereby permitting the claimant to have his or her case reconsidered by the Board as well as preserve the later right of appeal to 

the Court. 

Sec. 12. Modification of filing period for notice of disagreement to 

initiate appellate review of decisions of Department of Veterans 

Affairs. 

Section 12 of the Committee bill, which is derived from S. 3517 

as introduced, would modify the filing period for an NOD from one 

year to 180 days, with a good cause exception. 

Background. Under current law, section 7105(b) of title 38, a 

claimant has one year to file an NOD after the date on which VA 

mails notice of an initial decision on a claim for benefits, meaning 

that, in some cases, VA must wait a year to determine if a claimant disagrees with a decision on a claim for benefits. If a claimant 

waits until the end of the one-year period to file an NOD, VA is 

often required to re-develop the record to ensure the evidence of 

record is up to date. Data from the Board supports the conclusion 

that post-NOD development delays the resolution of the claim. In 

FY 2008, appeals in which the AOJs received an NOD more than 

180 days after the date the decision was mailed took, on average, 

32 additional days to decide. If the period in which to file an NOD 

were reduced to 180 days, VA could more quickly finalize the administrative processing of claims not being appealed and focus resources on the processing of new pending claims and appeals. 

Committee Bill. Section 12 of the Committee bill would amend 

section 7105(b) of title 38 to modify the filing period for NODs to 

180 days. It would also permit NODs to be filed electronically. 

With the addition of a new paragraph (3)(A) to section 7105(b), 

VA would also be authorized to grant good cause exceptions to the 

180-day limit under specific circumstances, such as: circumstances 

relating to any physical, mental, educational, or linguistic limitation of the claimant, legal guardian, representative, attorney, or 

authorized agent; circumstances relating to significant delay in the 

delivery of the initial decision or of the NOD caused by natural disaster or geographic location; or any change in financial circumstances. If good cause for lack of filing within the 180-day period is shown, the NOD will be treated as timely if filed within 186 

days after the initial 180-day period ends. 

These changes would take effect 180 days after the date of enactment and apply to claims filed on or after the date of enactment. 

15 

Because the majority of claimants are able to determine quickly 

if they are satisfied with VA’s decision on their claim, it is the 

Committee’s view that enactment of this provision should not adversely affect claimants for VA benefits. In FY 2008, 77 percent of 

the NODs were filed in less than 180 days. Among these cases, the 

average time to file an NOD was just 41 days. 

Sec. 13. Provision of post-notice of disagreement decisions to claimants who file notices of disagreements. 

Section 13 of the Committee bill, which is derived from S. 3517 

as introduced, would replace VA’s responsibility to provide a ‘‘statement of the case’’ with a requirement to provide a ‘‘post-notice of 

disagreement decision.’’ 

Background. Under current law, section 7105 of title 38, appellate review is initiated by an NOD and completed by a substantive 

appeal after a statement of the case is provided by VA to the claimant and to the claimant’s representative, if any. Pursuant to subsection (d)(1) of that section, a statement of the case must contain 

a summary of the pertinent evidence, a citation to pertinent laws 

and regulations, a discussion of how those laws and regulations affect the decision, the decision on each issue, and a summary of the 

reasons for each decision. 

Committee Bill. Section 13 of the Committee bill would amend 

section 7105 to replace VA’s responsibility to provide a ‘‘statement 

of the case,’’ as currently mandated by section 7105, with a requirement to provide a ‘‘post-notice of disagreement decision.’’ 

This provision of the Committee bill would additionally rewrite 

section 7105(d)(1) to require that the post-notice of disagreement 

decision include: in new subparagraph (A), a description of the specific facts that support VA’s decision, including an assessment as 

to the credibility of any lay evidence pertinent to the issue or 

issues with which disagreement has been expressed; in new subparagraph (B), a citation to pertinent laws and regulations that 

support VA’s decision; in new subparagraph (C), a statement that 

addresses each issue and provides the reasons why the evidence relied upon supports the conclusions of the agency under the specific 

laws and regulations applied; in new subparagraph (D), the date by 

which a substantive appeal must be filed in order to obtain further 

review of the decision; and in new subparagraph (E), the rights of 

the claimant under subsection (f) of section 7105, as added by section 15 of the Committee bill, to request that the agency of original 

jurisdiction initially review evidence that has been submitted after 

the agency of original jurisdiction receives a substantive appeal. 

Section 13 would further require, in new paragraph (d)(4) of section 7105, as renumbered by section 4 of the Committee bill, that 

the post-notice of disagreement decision be written in plain language. The changes made by this section would take effect 180 

days after enactment and apply with respect to NODs filed on or 

after that date. 

Sec. 14. Modification of substantive appeal process. 

Section 14 of the Committee bill, which is derived from S. 3517 

as introduced, would require a claimant to file a substantive appeal 

within 60 days of VA mailing a post-notice of disagreement decision 

and allow an extension of that period with good cause. 

16 

Background. Under current law, section 7105(a) of title 38, an 

appeal to the Board must be initiated by the claimant’s filing of an 

NOD and completed by the claimant’s filing of a substantive appeal, which is the means that a claimant must use to respond to 

the statement of the case, or VA’s version of the issues in dispute. 

Current law, section 7105(d)(3), as it relates to substantive appeals, provides that: 

Copies of the ‘‘statement of the case’’*** 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. 

In addition, VA regulations, 38 CFR 20.302(b), provide that a 

‘‘Substantive Appeal must be filed within 60 days from the date 

that the agency of original jurisdiction mails the Statement of the 

Case to the appellant, or within the remainder of the 1-year period 

from the date of the mailing of the notification of the determination 

being appealed, whichever period ends later.’’ Another VA regulation, 38 CFR 19.34, provides that a determination by the agency 

of original jurisdiction as to the timeliness of the a Substantive Appeal is an appealable issue. 

Committee Bill. Section 14 of the Committee bill is tied to the 

changes proposed in section 13 of the Committee bill, which would 

replace VA’s current requirement to provide a ‘‘statement of the 

case’’ to claimants with a requirement to provide a ‘‘post-notice of 

disagreement decision.’’ 

Section 14 of the Committee bill would create a new subsection, 

(e) to section 7105, which would allow the claimant 60 days to file 

a substantive appeal after a post-notice of disagreement decision is 

mailed. This provision of the Committee bill would authorize VA to 

grant an additional 60 days, in new section 7105(e)(2)(A), to file a 

substantive appeal for good cause, rather than the undefined 

period in current law. Good cause is defined in new section 

7105(e)(2)(B) as including those circumstances relating to any physical, mental, educational, or linguistic limitation of the claimant, 

legal guardian, or other accredited representative, attorney, or authorized agent filing the request; circumstances relating to significant delay in the delivery of the initial decision or of the NOD 

caused by natural disaster or factors relating to geography; or a 

change in the financial circumstances that are considered in determining eligibility for benefits or services on an annualized basis. 

Consistent with current law, proposed new section 7105(e)(4) 

would provide that a claimant would not be presumed to agree 

with any statement of fact contained in the new ‘‘post-notice of disVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
17 

agreement decision’’ with which he or she does not specifically 

disagree. 

Section 7105 would be further modified by section 14 of the Committee bill to clarify, in new subparagraph (e)(5), what occurs when 

a claimant does not file a substantive appeal in accordance with 

the law, to include requiring dismissal of the case by the agency 

of original jurisdiction and notification of the claimant of such dismissal. The notification would include an explanation of the procedure for obtaining review of the dismissal by the Board. 

The changes proposed by section 14 of the Committee bill would 

take effect on the date of enactment and apply with respect to 

claims filed on of after the date 180 days after enactment. 

Sec. 15. Automatic waiver of agency of original jurisdiction review 

of new evidence. 

Section 15 of the Committee bill, which is derived from S. 3517 

as introduced, would automatically waive the review of certain new 

evidence by the AOJ so that certain evidence submitted after the 

initial decision will be subject to initial review by the Board, unless 

review by the agency of original jurisdiction is requested. 

Background. VA regulations, section 20.1304(c) of title 38, CFR, 

provide that, if additional evidence is submitted to the Board after 

an appeal is certified to the Board, the evidence ‘‘must be referred 

to the agency of original jurisdiction for review, unless this procedural right is waived by the appellant or representative.’’ The requirement that the AOJ initially consider all evidence, unless the 

claimant waives the right, frequently delays the final adjudication 

of claims because claimants often submit additional evidence after 

perfecting their appeals to the Board by filing a substantive appeal. 

Under current procedures, each time a claimant, after filing a substantive appeal, submits more evidence without waiving the right 

to initial AOJ consideration, the AOJ must review the evidence 

submitted and issue a supplemental statement of the case pursuant to section 19.31 of title 38, CFR, that addresses the additional 

evidence. 

Committee Bill. Section 15 of the Committee bill would amend 

section 7105 by creating a new subsection (f) that would provide for 

an automatic waiver of the right to initial consideration of certain 

evidence by the AOJ. The evidence that would be subject to the 

waiver is evidence that the claimant or his or her representative 

submits to the AOJ or the Board concurrently with or after filing 

the substantive appeal. Such evidence would be subject to initial 

consideration by the Board, unless the appellant or his or her representative requests in writing that the AOJ initially consider the 

evidence. The request would be required to be submitted with the 

evidence or within 30 days of its submittal of the evidence. 

These changes would take effect 180 days after enactment and 

apply with respect to claims for which a substantive appeal is filed 

on or after that date. 

The Committee believes that the establishment of an automatic 

waiver would necessarily improve the timeliness of processing appeals as a whole. Because the Board bases its decisions on a de 

novo review of all the evidence of record, many more appeals could 

be more quickly transferred to the Board following the receipt of 

a substantive appeal. The AOJs would spend less time responding 

18 

to appellants who submit additional evidence following the filing of 

a substantive appeal. By presuming a waiver of AOJ review of new 

evidence, the Board would be able to adjudicate claims without the 

delay of a remand, thereby getting final decisions to veterans 

quicker and reducing the increased appellate workload caused by 

the reworking of remanded claims. In addition, any appellant wishing to have the evidence considered by the AOJ in the first instance would still have the right to such a review simply by alerting the Board of that desire. 

Sec. 16. Determination of location and manner of appearance for 

hearings. 

Section 16 of the Committee bill, which is derived from S. 3517 

as introduced, would require the Board to present an appellant the 

options for a Board hearing. 

Background. Under current law, section 7107(d) of title 38, if an 

individual appeals to the Board, the individual may request a hearing before the Board at the Board’s principal location in Washington, DC, or at a VA facility in the area of the appellant’s local 

regional office (called field hearings or travel Board hearings). In 

addition, that section provides that field hearings may be conducted ‘‘through voice transmission or through picture and voice 

transmission’’ with Board members sitting in Washington, DC. According to the Board’s Annual Report to Congress for Fiscal Year 

2009, in fiscal year 2009, the Board conducted 3,375 video hearings 

and 7,784 field hearings. Although veterans are less likely to utilize video hearings, as opposed to travel Board hearings, the Board 

reports that there is no statistical difference in the allowance rate 

of appeals in which hearings are held in the field compared to 

video conference hearings. Also, the Board will move to a new location in 2011, where it will have 17 video hearing rooms instead of 

just five. 

According to the Board, the potential results of expanded use of 

video capabilities include serving more veterans, reducing an appellant’s wait time for a hearing, and increasing efficiency in 

issuing final decisions on appeal, as travel days can be utilized as 

decision-generating workdays and the Board will not lose time in 

the field due to appellants who fail to show up for scheduled 

hearings. 

Committee Bill. Section 16 of the Committee bill would amend 

subsection (d)(1) of section 7107 of title 38 to provide that, upon request from an appellant for a hearing before the Board, the Board 

would be required to present the appellant with the options for a 

Board hearing, to include the Board’s principal location in Washington, DC, a travel board hearing, or a video hearing, along with 

a recommendation to the appellant of the option that would lead 

to the earliest possible date for the hearing and statistics for the 

average wait experienced for similarly situated appellants. This 

section would also amend subsection (e) of section 7107 of title 38 

to require the Board to inform the appellant of the advantages and 

disadvantages of participation in a hearing utilizing the Board’s 

principal location in Washington, DC, a travel board hearing, or a 

video hearing. These changes would take effect 180 days after enactment and apply to requests for hearings made on or after that 

date. 

19 

It is the Committee’s view that these changes should allow appellants to make a better informed choice of the type of hearing that 

best suits their needs and preferences. If these provisions are enacted, veterans would be better informed of their options for a 

hearing, including the potential for video hearings, which have 

been shown to be statistically as advantageous to a veteran as a 

travel Board hearing. 

Sec. 17. Decision by Court of Appeals for Veterans Claims on all 

issues raised by appellants. 

Section 17 of the Committee bill, which is derived from S. 3517 

as introduced, would require the Court of Appeals for Veterans 

Claims (hereinafter, ‘‘CAVC’’) to decide all issues raised by appellants in the cases that come before it. 

Background. Under current law, section 7261(a)(1) to (4) of title 

38, the Court, ‘‘to the extent necessary to its decision and when 

presented, shall’’: (1) decide relevant questions of law, interpret 

statutory and regulatory provisions, and determine the meaning or 

applicability of the terms of an action of VA; (2) compel action of 

VA unlawfully withheld or unreasonably delayed; (3) hold unlawful 

and set aside decisions, findings, conclusions, rules, and regulations 

issued or adopted by VA that are found to be arbitrary, capricious, 

an abuse of discretion, or otherwise not in accordance with the law, 

contrary to constitutional power, privilege or immunity, in excess 

of statutory jurisdiction, authority, or limitations, or in violation of 

statutory law, or without observance of procedure required by law; 

and (4) hold unlawful and set aside or reverse findings of fact if 

they are clearly erroneous. See Mahl v. Principi, 15 Vet. App. 37, 

38 (2001) (holding that where remand is appropriate, the Court 

need not ‘‘analyze and discuss all the other claimed errors that 

would result in a remedy no broader than a remand’’); Best v. 

Principi, 15 Vet. App. 18, 20 (2001) (per curiam order) (holding 

that ‘‘[a] narrow decision preserves for the appellant an opportunity 

to argue those claimed errors before the Board at the readjudication, and, of course, before this Court in an appeal, should the 

Board rule against him’’). 

Committee Bill. Section 17 of the Committee bill would amend 

section 7261 of title 38, relating to the Court’s scope of review, to 

require CAVC to decide all issues raised by appellants in cases before the Court. Specifically, section 7261(a) would be amended by 

striking the phrase ‘‘to the extent necessary to its decision,’’ thereby removing the Court’s discretion to address issues pertaining to 

paragraphs (1) to (4) of that section when presented by any party. 

This provision of the Committee bill would also add a new subsection, (c), to section 7261 to require that the Court render a decision on every issue raised by an appellant. 

Sec. 18. Good cause extension of period for filing notice of appeal 

with United States Court of Appeals for Veterans Claims. 

Section 18 of the Committee bill, which is derived from S. 3517 

as introduced, would create a good cause extension, not to exceed 

120 days, for filing a notice of appeal with the Court. 

Background. Under section 7266(a) of title 38, if a claimant disagrees with a decision of the Board, the claimant may appeal to the 

20 

Court by filing a notice of appeal within 120 days after the date 

on which notice of the decision was mailed by the Board. 

In Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009) (en 

banc), the United States Court of Appeals for the Federal Circuit 

(hereinafter, ‘‘Federal Circuit’’) held that the 120-day period for filing a notice of appeal to the Court is jurisdictional and not subject 

to equitable tolling. This inflexible application of the time limit for 

appeal creates sometimes harsh results. 

The absence of any provision for a ‘‘good cause’’ extension in section 7266(a) of title 38 also creates a disparity between veterans 

appealing a decision to the Court and other appellants in federal 

appeals courts because section 2107(c) of title 28 allows a limited 

‘‘good cause’’ extension of the period for appealing to a Federal circuit court of appeals. 

Committee Bill. Section 18 of the Committee bill would modify 

section 7266 of title 38 to authorize the Court of Appeals for Veterans Claims to extend the 120-day period for appealing a decision 

of the Board to the Court of Appeals for Veterans Claims no more 

than an additional 120 days based on a showing of ‘‘good cause.’’ 

It is the Committee’s intent to amend section 7266(a) to permit 

a limited ‘‘good cause’’ extension of the appeal period so as to place 

veterans on equal footing with appellants in other federal courts 

and prevent sometimes harsh results due to the lack of such a 

period. 

Matters concerning the existence of ‘‘good cause’’ for the extension of the appeal filing period or the timeliness of a motion for extension necessarily turn upon the facts of each litigant’s case and 

are therefore not reviewable under section 7292(a) and (d) of title 

38, which preclude the Federal Circuit from reviewing the Court of 

Appeals for Veterans Claims decisions on factual matters or the application of law to the facts of a case. Notwithstanding the clear jurisdictional mandate of that statute, the Federal Circuit has at 

times asserted authority to review all matters pertaining to the 

Court of Appeals for Veterans Claims, irrespective of whether the 

particular matter presented turned only upon the facts of a particular case. See, e.g., Morris v. Principi, 239 F.3d 1292, 1294 (Fed. 

Cir. 2001); Maggitt v. West, 202 F.3d 1370, 1379–80 (Fed. Cir. 

2000). Without addressing whether Congress condones those actions, it is not the Committee’s intent to open the door to that type 

of review for good cause determinations relating to filing a notice 

of appeal. 

Sec. 19. Pilot program on participation of local and tribal governments in improving quality of claims for disability compensation submitted to Department of Veterans Affairs. 

Section 19 of the Committee bill, which is derived from S. 3517 

as introduced, would create a pilot program on collaboration with 

local and tribal governments to improve the quality of claims for 

disability compensation. 

Background. Although VA, local governments, and tribal governments all seek to provide veterans with the benefits for which they 

are eligible, coordination among these entities is limited. This is especially true for VA’s coordination efforts with tribal governments, 

despite the fact that U.S. Census data show that American Indians 

and Alaska Natives serve in the U.S. military at a much higher 

21 

rate than the general population. Further still, according to a 

September 2006 analysis by VA’s Office of Policy and Planning, 

American Indian and Alaska Native veterans are nearly 50 percent 

more likely than other veterans to have a service-connected disability, and those under age 65 are twice as likely to be unemployed, making their receipt of health care, disability compensation, and other benefits even more crucial. 

VA currently serves the health care needs of American Indians 

and Alaska Natives under a memorandum of understanding with 

the Indian Health Service (hereinafter, ‘‘IHS’’) and sharing agreements between the Veterans Health Administration and federally 

recognized tribal governments. The approach of collaborating with 

IHS and tribal governments through memoranda of understanding 

and sharing agreements has shown some promise. However, coordination between the Veterans Benefits Administration and federally 

recognized tribal governments is much more limited. 

In recent years, Congress has authorized VA to operate benefits 

programs and conduct outreach in a way that responds to the practical realities of Indian Country, Alaska Native villages, and Hawaiian Homelands. For example, because of commercial lenders’ reluctance to extend mortgage loans secured by properties resting on 

Native American trust land, section 103 of Public Law 109–233, 

the Veterans’ Housing Opportunity and Benefits Improvement Act 

of 2006, made permanent VA’s authority to make housing loans directly to Native American veterans. In addition, section 403 of Public Law 109–461, the Veterans Benefits, Health Care, and Information Technology Act of 2006, enabled Native American tribal governments to apply for construction grants under VA’s State Cemetery Grant program, a program previously only open to States. The 

Committee believes that further progress can be made through 

stronger partnerships and greater cultural understanding between 

VA and tribal organizations and the Native Hawaiian community. 

Committee Bill. Section 19 of the Committee bill, in a freestanding provision, would require VA to establish and implement 

a pilot program to study the feasibility and advisability of entering 

into memorandums of understanding (hereinafter, ‘‘MOU’’) with 

local governments and tribal organizations in the provision of certain benefits to veterans. VA would be required to enter into an 

MOU with at least two tribal organizations. The program would 

seek to improve quality of claims submitted for compensation and 

provide assistance to veterans in submitting such claims. 

The Committee recognizes that many local governments, as well 

as some tribal governments, already operate paid and volunteer 

services for veterans in their communities. Through the type of collaboration envisioned by this section, those service providers could 

work with VA to advance their shared goals. It is the Committee’s 

view that VA must collaborate with local governments and federally recognized tribal governments in order to more effectively and 

efficiently provide veterans’ benefits. 

22 

Sec. 20. Increase in rate of pension for disabled veterans married 

to one another and both of whom require regular aid and attendance. 

Section 20 of the Committee bill would increase the benefit paid 

to married couples when both members are veterans who qualify 

for aid and attendance. 

Background. Veterans of a period of war who meet income, net 

worth, and other eligibility criteria are eligible to receive a pension 

based upon need. The amount of the pension is based upon the 

number of dependents of the veteran. Additional benefits are paid 

if the veteran has a disability which results in housebound status 

or need for aid and attendance. In general, when a veteran is married to a veteran, the pension benefits paid are the same as for a 

veteran who is married to a non-veteran. However, in cases where 

one or both members of a veteran couple is housebound and/or in 

need of aid and attendance, the additional amounts paid are computed separately for each veteran and added to the basic grant. 

In 1998, section 8206 of Public Law 105–178, the Transportation 

Equity Act for the 21st Century, increased the VA benefit for a veteran who requires aid and attendance by $600 per year. Because 

of the way the legislation was drafted, the benefit was increased 

for only one of the veterans in those rare cases where a veteran is 

married to a veteran and both require aid and attendance. The legislative history of that law does not indicate any intent to treat 

these spouses differently. According to VA there are currently only 

74 cases in which this applies. Therefore, under current law, if a 

veteran who is married to a veteran where both veterans qualify 

for aid and attendance benefits, the benefit amount for one of the 

spouses is $825 per year lower than for the other spouse. 

Committee Bill. The Committee bill would increase the benefit 

paid to married couples where both members of the couple are veterans and both qualify for aid and attendance by $825.00 per year. 

This amount represents the present value of the $600 increase 

added in 1998. 

Sec. 21. Automatic annual increase in rates of disability compensation and dependency and indemnity compensation. 

Section 21 of the Committee bill, which was accepted as an 

amendment during Markup of the Committee bill, would require 

that whenever there is an increase in benefit amounts payable 

under title II of the Social Security Act, VA would automatically increase the rates of disability compensation and DIC, among other 

rates, by the same percentage and make it effective on the same 

date. 

Background. The service-connected disability compensation program under chapter 11 of title 38, provides monthly cash benefits 

to veterans who have disabilities incurred or aggravated during active service in the Armed Forces. The amount of compensation paid 

depends on the nature and severity of a veteran’s disability or combination of disabilities and the extent to which the disability impairs earning capacity. Certain veterans with more severe disabilities are also eligible to receive additional compensation on behalf 

of the veteran’s spouse, children, and dependent parents. 

Under chapter 13 of title 38, VA pays DIC to the survivors of 

servicemembers or veterans who died on or after January 1, 1957, 

23 

from a disease or injury incurred or aggravated during military 

service. Survivors eligible for DIC include surviving spouses, unmarried children under the age of 18, children age 18 or older who 

are permanently incapable of self-support, children between the 

ages of 18 and 22 who are enrolled in school, and certain needy 

parents. 

Section 415(i) of title 42 provides for an automatic annual costof-living adjustment (hereinafter, ‘‘COLA’’) for benefits payable 

under title II of the Social Security Act based on the annual increase in consumer prices. Title II Social Security benefits are indexed to the Consumer Price Index for Urban Wage Earners and 

Clerical Workers (hereinafter, ‘‘CPI-W’’), which is published on a 

monthly basis by the Bureau of Labor Statistics. The annual COLA 

increase is equivalent to the increase in the CPI-W from the most 

recent period between the third quarter of one calendar year to the 

third quarter of the next. 

Currently, under section 5312 of title 38, there are several VA 

benefits that receive automatic increases tied to the annual adjustments in title II Social Security benefits. These include pension 

benefits for indigent, wartime veterans who are permanently and 

totally disabled due to a non-service-connected condition, or over 

the age of 65, as well as their surviving spouses and children, and 

DIC benefits for the parents of a deceased veteran whose income 

is below a specified threshold. 

However, the majority of disability compensation and DIC benefits paid by VA are not indexed to the CPI-W and do not increase 

automatically when title II Social Security benefits are increased. 

Instead, Congress regularly enacts an annual cost-of-living adjustment to ensure that inflation does not erode the purchasing power 

of VA benefits. Although Congress in recent years has consistently 

enacted legislation on time so as to provide benefit recipients with 

a COLA increase beginning December 1 of each year, veterans 

service organizations have expressed support for making the COLA 

automatic, as demonstrated during legislative hearings of the 

Committee. 

Committee Bill. Section 21 of the Committee bill would amend 

section 5312 of title 38, so as to add a new subsection (d)(1), which 

would require VA to increase the amounts of certain VA benefits 

by the same percentage and effective on the same date as adjustments made to title II Social Security benefits pursuant to section 

415(i) of title 42. Proposed new subsection (d)(2) of section 5312 

would specify the VA benefits that would be covered by any annual 

COLA increase. The benefits covered would be: 

1. Basic compensation rates for veterans with service-connected 

disabilities and the rates payable for certain severe disabilities 

(section 1114 of title 38); 

2. The allowance for spouses, children, and dependent parents 

paid to service-connected disabled veterans rated 30 percent or 

more disabled (section 1115(1)); 

3. The annual clothing allowance paid to veterans whose compensable disabilities require the use of prosthetic or orthopedic appliances that tend to tear or wear out clothing or veterans whose 

service-connected skin conditions require the use of prescribed 

medication that causes irreparable damage to outergarments (section 1162); and 

24 

4. Dependency and indemnity compensation paid to: 

(a) surviving spouses of veterans whose deaths were serviceconnected (section 1311); 

(b) surviving spouses for dependent children below the age of 

18 (sections 1313(a) and 1314); 

(c) surviving spouses who are so disabled that they need aid 

and attendance or are permanently housebound (section 

1311(i) and 1311(d)); 

(d) surviving spouses covered under section 1318 of title 38; 

and 

(e) the children of veterans whose deaths were service-connected if no surviving spouse is entitled to DIC, the child is age 

18 through 22 and attending an approved educational institution, or the child is age 18 or over and became permanently incapable of self-support prior to reaching age 18 (section 1313). 

Proposed new subsection (d)(3) of section 5312 would require VA 

to publish any increases under this new authority in the Federal 

Register. 

The effective date of section 21 of the Committee bill would be 

the first day of the first calendar year that begins after the date 

of enactment. 

Sec. 22. Action plan to improve correlation between employee pay 

and performance. 

Section 22 of the Committee bill, which was accepted as an 

amendment during Markup of the Committee bill, would require 

VA to develop an action plan for improving the correlation between 

the pay, advancement, and rewards of VA employees and their job 

performance. 

Background. In July 2010, the United States Office of Personnel 

Management (hereinafter, ‘‘OPM’’) released the results from the 

2010 Federal Employee Viewpoint Survey. The results suggest that 

VA employees do not believe there is a strong correlation between 

job performance and pay, awards, and promotions. For example, of 

the VA employees who responded to the survey, 38.8 percent disagreed or strongly disagreed with the notion that ‘‘[a]wards in my 

work unit depend on how well employees perform their jobs;’’ 39.0 

percent disagreed or strongly disagreed with the notion that, ‘‘[i]n 

my work unit, differences in performance are recognized in a meaningful way;’’ 45.4 percent disagreed or strongly disagreed with the 

notion that ‘‘[p]romotions in my work unit are based on merit;’’ and 

52.6 percent disagreed or strongly disagreed with the notion that 

‘‘[p]ay raises depend on how well employees perform their jobs.’’ 

In that report, OPM provided this guidance to agencies: ‘‘Collecting and analyzing survey results is just the first step in moving 

agencies towards greater effectiveness. Taking action on the results 

is the most important step in the process.’’ To that end, OPM recommended that agencies develop an action plan, which ‘‘will state 

the objectives, action to be taken, outcome measures, accountable 

personnel and improvement targets, and will describe how progress 

will be tracked.’’ Following that advice, leaders at OPM announced 

that, in response to the survey responses provided by OPM employees, they would develop a ‘‘‘corporate action plan’ to address employees’ biggest concerns.’’ 

25 

Committee Bill. Section 22 of the Committee bill, in a freestanding provision, would require VA, within 90 days after the date 

of enactment, to submit to Congress an action plan for improving 

the correlation between the pay, advancement, and rewards of VA 

employees and their job performance. The action plan would be required to have a particular focus on employees who perform work 

in relation to processing and adjudicating claims for disability compensation and dependency and indemnity compensation. In addition, the action plan must include specific objectives, planned actions, metrics for measuring improvements, and methods for tracking progress. It must also include any legislative changes that VA 

considers necessary in order for VA to improve the correlation between pay, advancement, and rewards and job performance. 

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 CBO, estimates that enactment of the Committee bill would, 

relative to current law, increase direct spending by $393 million 

over the 2011–2015 period and $2.1 billion over the 2011–2020 period. S. 3517 would add $5 million in discretionary spending over 

the 2011–2015 period, subject to appropriation of the necessary 

amounts. 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, November 19, 2010. 

Hon. DANIEL K. AKAKA, 

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. 3517, the Claims Processing 

Improvement Act of 2010. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Dwayne M. Wright. 

Sincerely, 

DOUGLAS W. ELMENDORF, Director. 

Enclosure. 

S. 3517—Claims Processing Improvement Act of 2010 

Summary: S. 3517 would modify the procedures used by the Department of Veterans Affairs (VA) to process and adjudicate compensation and pension claims. S. 3517 also would make changes to 

the compensation and pension programs and institute a pilot program for local and tribal governments. CBO estimates that enacting S. 3517 would increase direct spending by $393 million over the 

2011–2015 period and about $2.1 billion over the 2011–2020 period. 

CBO also estimates that implementing S. 3517 would add $5 million in discretionary spending over the 2011–2015 period, subject 

26 

to appropriation of the necessary amounts. Enacting the bill would 

not affect revenues. 

Pay-as-you-go procedures apply because enacting the legislation 

would affect direct spending. 

S. 3517 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA). 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 3517 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— 

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2011– 

2015 

2011– 

2020 

CHANGES IN DIRECT SPENDING 

Private Medical Opinions 

Estimated Budget Authority ............. 5 21 53 102 158 217 278 340 405 472 339 2,051 

Estimated Outlays ............................ 5 21 53 102 158 217 278 340 405 472 339 2,051 

Intermediate Disability Rating 

Estimated Budget Authority ............. 15 16 21 1 1 2 2 2 2 2 54 64 

Estimated Outlays ............................ 15 16 21 1 1 2 2 2 2 2 54 64 

Total Changes 

Estimated Budget Authority .... 20 37 74 103 159 219 280 342 407 474 393 2,115 

Estimated Outlays ................... 20 37 74 103 159 219 280 342 407 474 393 2,115 

Note: In addition to the changes in direct spending shown above, S. 3517 also would increase discretionary spending by $5 million over 

the 2011-2015 period for a disability compensation pilot program and various administrative provisions, subject to appropriation of the necessary amounts. 

Basis of estimate: For the purposes of this estimate, CBO assumes S. 3517 will be enacted by the end of calendar year 2010. 

Direct Spending 

S. 3517 would make several changes to the VA disability compensation and pensions programs. CBO estimates that enacting 

S. 3517 would increase direct spending by $2.1 billion over the 

2011–2020 period. 

Private Medical Opinions. Section 5 would allow medical opinions 

from private practitioners to be used to support claims for VA disability ratings. VA would be required to give such medical opinions 

the same deference as opinions provided by VA physicians. Under 

current law, a medical examination conducted by a physician is the 

main factor in assigning a disability rating, though other evidence 

can be used to support a claim. CBO estimates that enacting section 5 would increase direct spending by $2.1 billion over the 2011– 

2020 period. 

CBO expects that mental disorders and other disabilities where 

the diagnosis is in part subjective would comprise the majority of 

the cases where private medical opinions would be sought by veterans, and that 25 percent of veterans with such disabilities would 

provide credible private opinions. Based on a review of historical 

data on disability ratings, CBO estimates that veterans providing 

a private medical opinion would see a 10 percentage- point increase 

in their disability rating—moving from an average disability rating 

of 40 percent to 50 percent—over what they would have otherwise 

received. That change would increase a veteran’s monthly benefit 

by $250 in 2011. CBO does not expect the number of veterans reVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00026 Fmt 6659 Sfmt 6602 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
27 

ceiving disability compensation to be significantly affected by this 

provision. 

New Cases. In 2009, VA added 212,000 veterans to the disability 

compensation rolls. CBO estimates that there will be about 215,000 

new accessions in 2011, growing to about 243,000 in 2020. Based 

on information from VA, mental and other disorders (such as back 

injuries) where a subjective diagnosis exists account for about 10 

percent of the disabilities for which a rating for compensation is 

provided. Assuming a gradual phase-in of the use of private opinions, CBO estimates that in 2011 about 1,000 new veterans would 

receive higher disability ratings, and that this number would increase to about 6,100 in 2020. After accounting for mortality and 

inflation, CBO estimates that section 5 would increase direct 

spending for new accessions by $110 million over the 2011–2015 

period and $640 million over the 2011–2020 period. 

Veterans Currently On the Rolls. Under section 5, veterans who 

are currently receiving veterans’ disability compensation also 

would be eligible for an increase in their disability ratings. About 

3.2 million veterans currently receive veterans’ disability compensation and about 15 percent return each year to be re-rated. 

After accounting for the factors described above, CBO estimates 

that the population of veterans on the rolls who would receive an 

increased rating would be about 2,400 in 2011, increasing to about 

13,200 in 2020. Therefore, CBO estimates that section 5 would increase direct spending for veterans currently on the rolls by about 

$1.4 billion over the 2011–2020 period. 

Intermediate Disability Rating. Section 2 would require VA to assign a temporary disability rating to any veteran who submits a 

claim for multiple disabilities that includes at least one disability 

that can be rated immediately. VA currently has the authority to 

assign such partial ratings but because of the large backlog of 

claims it has used this authority sparingly. Most veterans with 

multiple disabilities have to wait until their claim is fully adjudicated—often a year or more—before receiving disability compensation. When such veterans begin receiving monthly compensation 

payments, they also receive a retroactive payment that covers the 

months back to the date of their application. 

Under section 2, CBO expects that such veterans would begin receiving partial disability compensation payments in the year in 

which they file a claim. That would increase costs in that first year 

(because of the earlier payments) and decrease costs in a subsequent year (because of reduced retroactive payments). CBO expects 

that costs would increase substantially for the first three years, as 

VA gradually phased in the process of assigning intermediate ratings more widely over that period. Once that process was fully 

phased in, CBO expects those increased costs would be largely offset by the reduced retroactive payments. 

The population that would generate additional spending would 

be veterans filing claims for the first time. Based on information 

from VA, CBO estimates that about 50 percent of all new claims 

for a disability rating are seeking a rating based on multiple disabilities and that about 25 percent of those cases (12.5 percent of 

all new claims) have at least one disability that could be decided 

immediately. In 2007, VA assigned temporary ratings to 33 cases. 

Under section 2, CBO expects that VA would eventually assign inVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00027 Fmt 6659 Sfmt 6602 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
28 

termediate ratings to half of the eligible population—about 6 percent of new cases each year. 

In 2009, there were about 212,000 new accessions to the disability compensation rolls. CBO estimates that there will be about 

215,000 new accessions in 2011, growing to about 243,000 in 2020. 

After accounting for a three-year phase-in and the number of veterans with a disability that could be rated immediately, CBO estimates that about 4,000 new veterans in 2011 would receive an intermediate rating (and, therefore, a payment in 2011), increasing 

to about 15,000 in 2020. The average disability rating for new cases 

is 40 percent (about $600 per month—$7,200 annually—in 2010) 

and CBO assumes that these veterans would receive that rating. 

After accounting for mortality and inflation, CBO estimates that 

section 2 would increase direct spending by $64 million over the 

2011–2020 period. 

Increased Pension for Married Veterans Requiring Aid and Attendance (A&A). Section 20 would increase the annual pension payable to married veterans when both spouses require regular A&A. 

Under current law, when two married veterans are in need of regular A&A, they are eligible to receive an annual combined pension 

of $30,480. Section 20 would increase that combined annual payment amount to $31,305. 

There are currently about 75 married couples who are both receiving pensions and both in need of regular A&A. Based on information from VA, CBO estimates that the number of eligible couples 

will decline slightly over the next decade. Therefore, we estimate 

that enacting section 20 would increase direct spending by 

$500,000 over the 2011–2020 period. 

Automatic Cost-of-Living Adjustment (COLA). Section 21 would 

automatically increase the amounts payable to veterans for disability compensation and to their survivors for dependency and indemnity compensation by the same COLA payable to Social Security recipients each year. Currently, this increase is authorized on 

an annual basis. The COLA that would be authorized by this bill 

is assumed in CBO’s baseline, consistent with section 257 of the 

Balanced Budget and Emergency Deficit Control Act, and savings 

from rounding it down were achieved by the Balanced Budget Act 

of 1997 (Public Law 105–33) as extended by the Veterans Benefits 

Act of 2003 (Public Law 108–183); therefore, enacting section 21 

would have no budgetary effect relative to the baseline. 

Spending Subject to Appropriation 

S. 3517 includes several provisions that would have a small impact on discretionary spending. CBO estimates that implementing 

those provisions would cost $5 million over the 2011–2015 period, 

subject to appropriation of the necessary amounts. 

Pilot Program for Local and Tribal Governments. Section 19 

would require VA to conduct a pilot program to determine the feasibility of entering into memorandums of understanding (MOUs) 

with local and tribal organizations intended to help facilitate the 

claims application process. VA would be required to enter into such 

MOUs with at least two tribal organizations. Assuming that VA entered into two such agreements, CBO expects that implementing 

those agreements would require VA to hire a total of four additional employees to provide on-site assistance—two for each tribal 

29 

organization. Based on information from VA, CBO estimates that 

implementing section 19 would cost less than $500,000 per year 

and about $2 million over the 2011–2015 period, subject to the 

availability of appropriated funds. 

Other Provisions. Several sections of S. 3517 would make changes 

to the claims adjudication process at VA, both in terms of the filing 

of claims and VA’s method for adjudication and the appeals process 

when a veteran disagrees with a VA decision. While most of those 

changes would have either an insignificant budget impact or no impact at all, CBO expects that implementing all of them would require VA to hire additional employees. Thus, CBO estimates that 

those provisions would cost about $3 million over the 2011–2015 

period, subject to the availability of appropriated funds. 

Pay-As-You-Go Considerations: The Statutory Pay-As-You-Go Act 

of 2010 establishes budget reporting and enforcement procedures 

for legislation affecting direct spending or revenues. S. 3517 would 

increase direct spending by increasing the amount of disability 

compensation that certain veterans would be eligible to receive. 

The changes in outlays that are subject to those pay-as-you-go procedures are shown in the following table. 

CBO Estimate of Pay-As-You-Go Effects for S. 3517 as ordered reported by 

the Senate Committee on Veterans’ Affairs on August 5, 2010 

By fiscal year, in millions of dollars— 

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2011– 

2015 

2011– 

2020 

NET INCREASE IN THE DEFICIT 

Statutory Pay-As-You-Go Impact ............... 20 37 74 103 159 219 280 342 407 474 393 2,115 

Intergovernmental and private-sector impact: S. 3517 contains no 

intergovernmental mandates as defined in UMRA and would impose no costs on state, local, or tribal governments. 

Estimate prepared by: Federal Costs: Dwayne M. Wright; Impact 

on State, Local, and Tribal Governments: Lisa Ramirez-Branum; 

Impact on the Private Sector: Elizabeth Bass. 

Estimate approved by: Theresa Gullo, Deputy 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 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 August 5, 2010, meeting. Three amendments were ofVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00029 Fmt 6659 Sfmt 6602 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
30 

fered to S. 3517. All three were accepted by the Chairman and the 

bill was ordered favorably reported. 

AGENCY REPORT

On July 14, 2010, Michael Walcoff, Acting Under Secretary for 

Benefits, Veterans Benefits Administration, Department of Veterans Affairs, appeared before the Committee and submitted testimony on S. 3517, among other issues. Excerpts from this statement 

are reprinted below: 

(31) 

STATEMENT OF MICHAEL WALCOFF, ACTING UNDER SECRETARY FOR BENEFITS, VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS 

Chairman Akaka, Ranking Member Burr, and Members of the 

Committee: 

Thank you for the opportunity to appear before you today to discuss the Department of Veterans Affairs (VA) disability compensation and pension programs. Accompanying me today are Ms. Diana 

Rubens, Associate Deputy Under Secretary for Field Operations; 

Mr. Tom Pamperin, Associate Deputy Under Secretary for Policy 

and Program Management; Mr. Mark Bologna, Director for the 

Veterans Benefits Management System (VBMS) initiative; Dr. 

Peter Levin, Senior Advisor to the Secretary and Chief Technology 

Officer; and Mr. Richard Hipolit, Assistant General Counsel. My 

testimony will provide preliminary views on the Chairman’s bill, 

the Claims Processing Improvement Act of 2010. I will also focus 

on the Secretary’s goal to eliminate the claims backlog by 2015 so 

as to ensure timely and accurate delivery of benefits and services 

to our Veterans and their families. 

* * * * * * * 

S. 3517: THE CLAIMS PROCESSING IMPROVEMENT ACT OF 2010

First, let me commend you Mr. Chairman and your staff for your 

efforts to put forward ideas on how to improve the disability claims 

processing system. I would like to acknowledge your work and we 

appreciate your staff keeping the Department informed as you developed the legislation. 

S. 3517, the ‘‘Claims Processing Improvement Act of 2010,’’ would 

establish a pilot program on evaluation and rating of service-connected musculoskeletal disabilities and would revise a number of 

statutes affecting VA’s adjudication of claims and appeals. The Department is in the final stages of coordinating the Administration’s 

full position and developing cost estimates on the legislation. However, I will provide you with a brief overview of VA’s initial reactions to Title I of the bill and, with your permission, we will provide more detailed information on the entire bill in writing for the 

record. 

* * * * * * * 

Title II of this bill addresses several matters relating to the adjudication process for claims and appeals. We appreciate the inclusion of a number of provisions drawn from Secretary Shinseki’s 

proposed legislation, known as the Veterans Benefit Programs Improvement Act of 2010, which he submitted to Congress for consideration on May 26, 2010. We look forward to the opportunity to 

provide our views on the legislation in the coming weeks. 

32 

THE SECRETARY OF VETERANS AFFAIRS, Washington, DC, August 2, 2010. 

Hon. DANIEL K. AKAKA, 

Chairman, 

Committee on Veterans’ Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: I write to provide the views and cost estimates of the Department of Veterans Affairs (VA) on S. 3517, the 

‘‘Claims Processing Improvement Act of 2010.’’ Although this bill 

was included on the agenda for a July 14, 2010, oversight hearing 

before the Senate Committee on Veterans’ Affairs, VA was unable 

to provide full views in time for that hearing. This bill contains legislation of considerable significance to VA, and we appreciate your 

allowing us to submit this letter to supplement VA’s testimony. 

First, let me commend you, Mr. Chairman, and your staff for 

your efforts to put forward ideas on how to improve the disability 

claims processing system. I would like to acknowledge your work, 

and we appreciate your staff keeping the Department informed as 

you developed the legislation. 

The ‘‘Claims Processing Improvement Act of 2010’’ would establish a pilot program on evaluation and rating of service-connected 

musculoskeletal disabilities and would revise a number of statutes 

affecting VA’s adjudication of claims and appeals. VA supports the 

goals of many of the sections in this bill that would enhance the 

processing of claims and appeals. However, VA also has significant 

concerns regarding a number of provisions in the bill as discussed 

below. 

* * * * * * * 

§ 201 

Section 201 would provide for the expeditious partial adjudication of a disability compensation claim for multiple conditions, 

when one or more of the conditions could be assigned a disability 

rating without further development. VA supports the underlying 

goal of this section as a means to expedite payment of disability 

compensation to a Veteran, even though it may be less than the 

eventual total monthly payment. In fact, VA has implemented a 

policy to this effect in the Compensation and Pension Service Procedures Manual. Because this procedure is already part of VA’s 

standard operating procedure, it is unnecessary to mandate this 

procedure by law. We anticipate that there would be no costs associated with the enactment of this section. 

§ 202 

Section 202 would attempt to clarify that the Secretary is required to provide claimants notice of additional information and 

evidence necessary to substantiate a claim, only if additional information and evidence is required to support the claim. We support 

the purpose of clarifying that notice is not required when VA has 

sufficient information and evidence to decide the claim. However, 

the wording of this section is confusing and may not lead to the desired result stated in its title. We believe the purpose of this proviVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00032 Fmt 6604 Sfmt 6604 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
33 

sion could be achieved by retaining the existing language in 38 

U.S.C. § 5103(a) and adding a sentence stating that VA is not required to provide notice if no additional information or evidence is 

required. VA has already interpreted the current statute as providing such a result in its proposed rulemaking to amend 38 CFR 

§ 3.159, which would not require VA to provide notice where the 

evidence is already sufficient to award all benefits sought. We anticipate that there would be no costs associated with the enactment 

of this section. 

§ 203 

Section 203 would require that the same deference be given to 

private medical opinions as to VA medical opinions. The section 

would further require that, if VA requests a VA medical opinion in 

response to a private medical opinion, then the professional qualifications of the VA health care provider must be equal to or greater 

than those of the provider of the private medical opinion. 

VA does not support this section of the bill as it assumes that 

VA automatically gives more weight to opinions from VA clinicians 

as opposed to private clinicians, regardless of the content of the 

opinions at issue. This is simply not the case. VA adjudicators must 

weigh competing medical opinions, whether from a VA or private 

clinician, based on a variety of factors, including the discussion of 

relevant facts and pertinent medical history, the relative thoroughness of the opinions, and the clarity of analysis, among other 

things. The bill language could be construed to require VA by law 

to assign equal probative value to private medical opinions regardless of these factors. The assignment of probative value, however, 

is an essential part of the adjudicative function that involves the 

adjudicator looking at the reasoning provided by all clinicians, both 

VA and private, concerning a submitted medical opinion, and then 

judging the credibility and determining the weight to be assigned 

to the evidence. If this process were merely to become one of adding up the number of favorable versus the unfavorable medical 

opinions, there is a serious risk that harm would occur to both Veterans and VA. 

VA further objects to the provision of this section that would require that, when a VA health care provider is responding to a private medical opinion, the professional qualifications of the VA 

health care provider be equal to or greater than those of the private health care provider. In many circumstances it may not be 

evident what VA health care provider would have ‘‘professional 

qualifications that are at least equal to the qualifications of the 

provider of the private medical opinion’’—particularly in situations 

where a complex medical condition is at issue. Furthermore, it 

would be difficult for VA to assess the qualifications of those who 

provide private medical opinions because private clinicians often do 

not provide a curriculum vitae or other statement outlining their 

professional qualifications. In fact, many times the signature line, 

which may include a notation such as ‘‘M.D.,’’ ‘‘N.P.,’’ or ‘‘F.A.C.S.,’’ 

would be the only indicator of their professional status. 

We anticipate that there would be no costs associated with the 

enactment of this section. 

34 

§ 204 

Section 204 would direct the Secretary to establish a process to 

identify whether claims could be quickly adjudicated or a whether 

a temporary disability rating could be assigned. As part of this 

process, VA would be required to assign employees who are experienced in the processing of claims to carry out a preliminary review 

of all initial disability compensation claims submitted to VA. Priority adjudication would be authorized for certain disability compensation claims, including claims of Veterans who are terminally 

ill, claims of homeless claimants, claims of claimants suffering severe financial hardship, and claims partially adjudicated under section 1157(b) as proposed by section 201 of this bill. This section 

would further provide VA the discretion to terminate development 

of a claim at the request of the claimant, but would still require 

VA to undertake any development necessary to obtain any Federal 

records, medical examinations, or opinions relevant to the claim. 

This section would also allow VA to decide these claims based on 

all the evidence of record. 

While VA supports the underlying purpose of section 204 to identify claims that may be subject to quick adjudication, VA does not 

believe that the structure of this process, including the allocation 

of human resources, should be mandated by law. VA regional offices are presently committed to processing claims in as timely and 

consistent a manner as possible. Flexibility in operations at a local 

level is necessary to accomplish this goal. Mandating that experienced claims processing personnel be employed in these positions 

may deprive VA regional offices of needed flexibility in utilizing experienced claims processing personnel and adjusting their staffing 

in response to the natural ebb and flow of the claims adjudication 

process. Adding this extra layer of review may result in duplicative 

review of many claims and may unnecessarily delay the claims of 

Veterans whose claims are more complex or difficult to adjudicate. 

Further, we are concerned that the proposed language, if not expressly limited to claims processing by VA regional offices, could be 

construed to potentially interfere with the current obligation of the 

Board of Veterans’ Appeals (Board) under 38 U.S.C. § 7107 to decide cases in docket order. 

VA supports the provision that would allow VA to treat a claim 

as fully developed upon notification that the claimant has no further information or evidence to submit, subject to VA’s completion 

of any necessary development. VA does not anticipate any costs associated with this section. 

§ 205 

Section 205 would require the Secretary, upon denying a benefit, 

to provide the claimant a notice of decision that includes: a statement of reasons for the decision, a summary of the evidence relied 

upon in making the decision, and an explanation of the procedure 

for obtaining appellate review. Along with the notice of decision, 

the Secretary would be required to provide the claimant a notice 

of disagreement (NOD) form that, if completed and returned, would 

initiate appellate review process. The content of the notice to be 

provided under the proposal would be the same as that provided 

35 

under current law. A NOD form is not currently provided. VA has 

no objection to this section, although we consider providing the 

NOD form unnecessary in light of the explicit notice of appellate 

rights already provided with VA claim decisions. We anticipate no 

costs associated with section 205, beyond the cost of printing the 

proposed NOD form. 

§ 206 

Section 206 would reduce the time period in which a claimant 

could submit a NOD to initiate appellate review from one year to 

180 days from the issuance of the VA decision. This section would 

also create a good cause exception that would require VA to treat 

an untimely NOD as timely, if VA determines that the claimant, 

legal guardian, or accredited representative, attorney, or authorized agent filing the notice has demonstrated ‘‘good cause’’ for the 

failure to timely file and if the NOD is filed within 186 days after 

the initial 180-day appeal period. This section would further authorize VA to accept NODs by electronic means as well as through 

traditional mail. 

VA supports the portion of this section that would reduce the 

time involved in processing appeals and provide a good cause exception for certain untimely filings. VA believes that the 180-day 

time frame is a sufficient period for a claimant or representative 

to evaluate a VA decision and respond with a NOD if the claimant 

decides to initiate an appeal. VA would, however, recommend restructuring the ‘‘good cause’’ exception as an extension request 

similar to that found in section 207 for the filing of a substantive 

appeal. Section 207 would allow for an extension of the time to file 

a substantive appeal provided that good cause is shown and the request is filed within the initial 60-day period to file a substantive 

appeal. As currently drafted, section 206 does not require that an 

extension request be filed within the initial 180-day NOD filing period. Requiring that extension requests be filed within the initial 

180-day filing period would allow the agency of original jurisdiction 

(AOJ) to close an appeal 180 days after a decision is issued, provided that an NOD or extension request was not submitted. Without a requirement that extension requests be filed within the initial 180-day filing period, the AOJ would not be able to close an 

appeal until 366 days after the initial AOJ decision was issued (180 

days for the initial NOD filing period and an additional 186 days 

for the extension period). Therefore, to avoid further delay, we recommend that the bill be revised to require that requests for extension of the period to file an NOD be filed within the initial 180- 

day filing period. We would also recommend limiting the extension 

period to 180-days or less versus the current 186-day period. 

VA does not support the provision in section 206 stating that certain broadly described circumstances ‘‘shall’’ be considered as relating to good cause. While VA has no objection to the inclusion of a 

list of examples, VA believes that the fact-specific determination as 

to what is considered ‘‘good cause’’ should be left to the adjudicator 

and decided on a case-by-case basis, not mandated by law. As written, this provision seemingly would require VA to treat any linguistic barrier or change in financial circumstances as good cause, 

36 

without regard to the degree of the barrier or change and without 

regard to any mitigating factors. 

Further, VA does not support the portion of section 206 that 

would extend the ‘‘good cause exception’’ to a Veteran’s accredited 

representative, attorney, or agent. Such representatives are duty 

bound to provide competent representation and to act with reasonable diligence and promptness in representing claimants, which includes being accountable for observing the various filing deadlines. 

Failing in these duties may indicate misconduct or lack of competence on the part of the representative, attorney, or agent. VA 

does not anticipate any costs associated with this section. 

§ 207 

Section 207 would require a substantive appeal to be filed within 

60 days from the date of the mailing of a ‘‘post-notice of disagreement decision.’’ This time period could be extended an additional 

60 days for good cause shown. The substantive appeal must identify the alleged specific errors of fact or law made by the AOJ. If 

the claimant does not file a substantive appeal in accordance with 

this section, the AOJ would be required to dismiss the appeal and 

notify the claimant. The dismissal notice would have to explain 

that the Board may review the dismissal, and such a request for 

review must be made within 60 days. 

VA supports the 60-day time period for filing a substantive appeal as is provided under the current law. However, similar to section 206, section 207 includes a list of broad circumstances that 

‘‘shall’’ be considered ‘‘good cause.’’ As written, this could be construed as placing a mandatory requirement on VA to always consider certain situations to be good cause. While VA has no objection 

to the inclusion of a list of examples, VA believes that the fact-specific determination as to what is considered ‘‘good cause’’ should be 

left to the adjudicator. VA is in the process of developing costs for 

this section. 

§ 208 

Section 208 would replace the Secretary’s obligation to provide a 

statement of the case with an obligation to provide a ‘‘post-notice 

of disagreement decision’’ and would clarify that VA’s action is a 

decision on the claim. This decision would be written in plain language and contain a description of the specific facts in the case 

which support the decision including, if applicable, an assessment 

as to the credibility of any lay evidence pertinent to the issues with 

which disagreement has been expressed; a citation to pertinent 

laws and regulations that support the decision; the decision on 

each issue and a summary of the reasons why the evidence relied 

upon supports such decision under the laws and regulations applied; and the date by which a substantive appeal must be filed in 

order to obtain further review of the decision. The post-notice of 

disagreement decision is different from the statement of the case 

in that it has the additional requirements that the decision include 

a discussion of the specific facts supporting the decision and an assessment as to the credibility of any lay evidence pertinent to the 

37 

issue, that the decision be written in plain language, and that the 

decision contain the deadline to file a substantive appeal. 

While VA generally has no objection to renaming the statement 

of the case, VA believes that the requirement that these post-notice 

of disagreement decisions be written in ‘‘plain language’’ is very 

subjective and could result in an increase in appeals that would 

further delay the adjudication of claims. We anticipate no costs associated with this section. 

§ 209 

Section 209 would provide that a claimant automatically waives 

the review by the AOJ of new evidence submitted after the substantive appeal is filed, so that such evidence would be subject to 

initial review by the Board unless the claimant, or the claimant’s 

representative, submits a written request, with the evidence or 

within 30 days of submitting the evidence, that the AOJ review 

such evidence. 

VA generally supports this section because it would allow AOJs 

to spend less time responding, through supplemental statements of 

the case, to appellants who submit additional evidence following 

the filing of a substantive appeal and would allow the Board to 

avoid time-consuming remands when the appellant submits evidence directly to the Board. We believe that this would reduce the 

time spent processing appeals and thereby provide final decisions 

to Veterans more quickly. 

VA’s only concern with this section is the provision that permits 

a request for AOJ review to be ‘‘made within 30 days of the submittal’’ of evidence. Providing a 30-day period to submit a request 

for AOJ review would require the AOJ in many cases to hold the 

case for at least 30 additional days following the receipt of evidence 

to determine whether a request for AOJ review is going to be filed 

before forwarding the case to the Board. Moreover, if an appellant 

submits evidence in piecemeal fashion after filing a substantive appeal, the AOJ would be forced to hold the case pending the expiration of multiple 30-day periods. Requiring that the request for AOJ 

review be filed contemporaneously with the evidence would enhance efficiency and reduce delay in the appellate process. We anticipate that there would be no mandatory or discretionary costs 

associated with this section. 

§ 210 

Section 210 would allow the Board to determine the most expeditious location for and type of hearing (i.e., an in-person hearing or 

a video conference hearing) to afford an appellant, unless the appellant demonstrates good cause or special circumstances to warrant another location or type of hearing. VA supports enactment of 

section 210 as it would improve efficiency and speed claim adjudications. We anticipate that this section would result in no mandatory or discretionary costs or savings. 

§ 211 

Section 211 of the draft bill would require that the Court of Appeals for Veterans Claims (Veterans Court) decide every issue 

38 

raised on appeal before remanding an issue for readjudication. VA 

takes no position on this provision as it directly pertains to the operation of the Veterans Court. We do not anticipate that there 

would be any costs associated with this section. 

§ 212 

Section 212 would authorize the Veterans Court to extend the 

120-day time period for filing a notice of appeal for an additional 

period not to exceed 120 days upon a written request by the appellant filed not later than 120 days after expiration of the initial appeal period and a showing of good cause. VA supports this section 

of the proposed bill and anticipates that there would be no costs 

associated with this section. 

§ 213 

Section 213 would require the Secretary of Veterans Affairs to 

carry out a pilot program to assess the feasibility and advisability 

of entering into memorandums of understanding with local governments and tribal organizations to improve the quality of compensation claims submitted under chapter 11of title 38, United States 

Code, and to provide assistance to Veterans who may be eligible for 

such compensation in submitting such claims. VA is unable to provide views on the proposed pilot program or estimate the costs associated with enactment of section 213 as the purpose and intent 

of this section is unclear. 

Thank you for the opportunity to provide the Department’s views 

on this legislation, and again I commend you and your staff for 

your efforts to put forward proposals to improve the disability 

claims processing system. 

I look forward to continuing to work together with you on our 

shared goal of a disability claims processing system that provides 

accurate and timely decisions to our Nation’s Veterans. Thank you 

for your ongoing support of our mission. 

The Office of Management and Budget has advised that there is 

no objection to the submission of this report from the standpoint 

of the Administration’s program. 

Sincerely, 

ERIC K. SHINSEKI. 

THE SECRETARY OF VETERANS AFFAIRS, 

Washington, DC, July 30, 2010. 

Hon. DANIEL K. AKAKA, Chairman, 

Committee on Veterans’ Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: I am pleased to provide the Committee 

with the views of the Department of Veterans Affairs (VA) on 

twelve of the thirteen bills listed in your May 21, 2010, letter. In 

addition, we are providing cost estimates for three bills about 

which we testified at the Committee’s May 19, 2010, hearing but 

for which we were unable to develop cost estimates in time for that 

39 

hearing. We will provide views and costs on S. 3486 to the Committee in a separate letter. 

* * * * * * * 

S. 3348 

S. 3348 would require that certain misfiled documents be treated 

as motions for reconsideration of decisions of the Board of Veterans’ 

Appeals (Board). A document so treated would be a document that 

expresses disagreement with a Board decision, is filed with the 

Board or the VA agency of original jurisdiction within 120 days 

after the Board issues the decision, and is filed by a person who 

is adversely affected by the Board decision but has not timely filed 

a notice of appeal with the United States Court of Appeals for Veterans Claims (Veterans Court). Such a document would not be 

treated as a motion for reconsideration if the Board or the agency 

of original jurisdiction determines that the document expresses an 

intent to appeal the Board decision to the Veterans Court and forwards the document to the Veterans Court, and the court receives 

the document within 120 days after the Board issued the decision. 

VA objects to the bill for two reasons. First, it would require the 

Board to decide motions for reconsideration of decisions without 

any meaningful basis for such reconsideration. This is because the 

bill would allow reconsideration of previously final decisions based 

on nothing more than a mere expression of disagreement, rather 

than based on the current reconsideration standard of obvious 

error of fact or law. Second, by requiring VA to make an initial determination as to whether a notice of appeal was filed in a case, 

the bill would place VA in the unprecedented position of determining whether a particular case falls within the jurisdiction of the 

Veterans Court, a superior tribunal. The additional activity that 

S. 3348 would require could potentially burden an already overburdened adjudication system and introduce uncertainty as to the finality of Board decisions. 

We believe that legislation recently proposed by VA that would 

authorize the Veterans Court to extend the 120-day period for appealing a Board decision on a showing of good cause presents a better solution for appellants who are unable to correctly file a notice 

of appeal of a Board decision. Under VA’s proposal, the Veterans 

Court would determine whether the facts and circumstances of a 

particular case justify an extension of the statutory time period for 

filing an appeal, and the Board would not have to decide a case a 

second time with no clearly discernible benefit flowing to the 

Veteran. 

Concerning costs, the Board processes between 800 and 900 motions for reconsideration each year at a cost of approximately 

$587,000. The Board cannot predict the number of motions for reconsideration it would have to decide each year under the bill because the proposed standard involves too many variables. However, 

because S. 3348 would potentially treat all expressions of disagreement filed within the 120-day period for appealing a Board decision 

as motions for reconsideration, it is reasonable to conclude that the 

40 

number of such motions decided would increase significantly along 

with VA’s costs in issuing such decisions. 

* * * * * * * 

S. 3367 

S. 3367 would increase from $8,911 to $31,305 the maximum annual rate of pension for two disabled Veterans married to one another when both are in need of regular aid and attendance currently prescribed by section 1521(f)(2) of title 38, United States 

Code. This bill would have the effect of amending the law governing improved pension to prospectively establish a pension rate 

for two Veterans married to one another, both of whom are in need 

of aid and attendance, at the rate that would have been payable 

had 38 U.S.C. § 1521(f)(2) been amended in 1998 to provide a $600 

increase for each Veteran, rather than a single $600 increase for 

the two Veterans, and the increased rate had subsequently been 

adjusted by annual cost of living adjustments. VA supports this bill 

as an equitable approach to meeting the needs of severely disabled 

Veterans, subject to Congress identifying offsets for the additional 

costs identified below. However, VA has a technical concern with 

this bill. It would update in accordance with current pension rates 

only one of the rates specified in section 1521(f)(2). The multitude 

of other pension rates prescribed by section 1521 would continue to 

be those that were in effect years ago. To avoid confusion, should 

Congress decide to amend one of the rates prescribed by section 

1521(f)(2), it should also update all the other rates prescribed in 

section 1521 to account for past cost-of-living adjustments. 

Because there are only 74 pension awards for two Veterans married to one another and both in need of regular aid and attendance, 

VA estimates the cost of this bill, if enacted, would be $733,000 in 

the first year, $3.7 million over 5 years, and $8 million over 10 

years. VA has determined that there would be no additional administrative or full-time employee costs associated with this bill. 

S. 3368 

S. 3368 would authorize certain individuals and organizations to 

sign an application for VA benefits on behalf of claimants under 18 

years of age, mentally incompetent, or physically unable to sign the 

application form. 

VA does not support this bill because it is unnecessary and 

would place Veterans, their family members, and VA at a higher 

risk for abuse and fraud. First, VA regulations currently provide a 

process for initiating a claim without a traditional signature. Section 3.2130 of title 38, Code of Federal Regulations, requires VA to 

accept a signature by mark or thumbprint if appropriately witnessed or certified by a notary public or certain VA employees. This 

alternate process enables claims to be filed by persons unable to 

sign an application. Second, a claimant unable to sign an application for benefits due to mental deficiency will likely be found incompetent to handle his or her own VA benefit payments, which requires VA to appoint a fiduciary, who would be qualified to sign application forms for the claimant. Allowing persons not appointed as 

VA fiduciaries to file claims for incompetent claimants would inVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00040 Fmt 6604 Sfmt 6604 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
41 

crease the risk that VA benefits would be diverted from claimants. 

For these reasons, we do not support S. 3368. 

VA estimates that there would be no benefit costs or administrative costs associated with this bill. 

S. 3370 

S. 3370 would amend 38 U.S.C. § 5105(a), which directs the Secretary of Veterans Affairs and the Commissioner of Social Security 

to jointly prescribe forms for use by survivors of members and 

former members of the uniformed services to apply for benefits 

under both chapter 13 of title 38, United States Code, and title II 

of the Social Security Act. Under section 5105(b), when an application on such a form is filed with either VA or the Social Security 

Administration (SSA), it is deemed to be an application for benefits 

under both chapter 13 of title 38 and title II of the Social Security 

Act. Accordingly, applicants for survivor benefits need file only one 

of the prescribed forms with either agency to apply for such benefits at both agencies. 

The bill would authorize but no longer require VA and SSA to 

jointly prescribe forms to apply for survivor benefits and, more significantly, require VA and SSA to interpret an application made on 

any form indicating an intent to apply for survivor benefits filed 

with either agency as an application for benefits under both chapter 13 of title 38, United States Code, and title II of the Social Security Act. Requiring VA and SSA to accept as an application for 

survivor benefits any application that indicates an intent to file for 

such benefits without regard to the application form would be inconsistent with the concept embodied in 38 U.S.C. § 5101(a) that a 

claim for veterans benefits must be made by filing a claim ‘‘in the 

form prescribed by the Secretary.’’ This requirement serves the 

beneficial purpose of ensuring that a claim contains sufficient information as specified in the claim form to permit VA to efficiently adjudicate the claim. Permitting the filing of ‘‘any form’’ to constitute 

a claim for survivor benefits would condone use of a multitude of 

forms (for example, a VA Form 21–4138, Statement in Support of 

Claim), that might provide only minimal information and require 

inefficient follow up inquiries from VA. Such a procedure would be 

inconsistent with VA’s efforts to improve the efficiency of claim adjudications. For this reason, VA does not support S. 3370. 

We estimate that there would be no cost associated with S. 3370. 

* * * * * * * 

The Office of Management and Budget has advised that there is 

no objection to the submission of this report from the standpoint 

of the Administration’s program. 

Sincerely, 

ERIC K. SHINSEKI. 

42 

THE SECRETARY OF VETERANS AFFAIRS, Washington, DC, October 1, 2010. 

Hon. DANIEL K. AKAKA, 

Chairman, 

Committee on Veterans’ Affairs, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: I am pleased to provide the Committee 

with the views of the Department of Veterans Affairs (VA) on five 

of the amendments agreed to at the Committee’s August 5, 2010, 

markup. 

AUTOMATIC ANNUAL INCREASE IN RATES OF DISABILITY

COMPENSATION AND DEPENDENCY AND INDEMNITY COMPENSATION. 

This amendment would provide for an automatic cost-of-living increase in the rates of disability compensation for Veterans with 

service-connected disabilities, and of dependency and indemnity 

compensation (DIC) for the survivors of Veterans whose deaths are 

service related, whenever there is such an increase in Social Security benefits, and by the same percentage as the percentage by 

which Social Security benefits are increased. VA benefits would increase on the date Social Security benefits are increased. VA supports enactment of this amendment. 

Since 1992, Congress has enacted annual increases in these benefits in the same percentages as Social Security benefit increases. 

Making the cost-of-living adjustments (COLAs) automatic would 

simplify the annual rate adjustments for compensation and DIC in 

the same manner that the process for pension was simplified by indexing pension increases to Social Security COLAs. VA believes the 

annual increases are necessary and appropriate to provide continuous protection of the affected benefits from the effects of inflation. 

The beneficiaries deserve no less. 

Because future COLA estimates are already included in the baseline President’s budget, this legislation would not result in additional costs. 

AUTHORITY FOR RETROACTIVE EFFECTIVE DATE FOR AWARDS OF DIS- ABILITY COMPENSATION IN CONNECTION WITH APPLICATIONS THAT

ARE FULLY-DEVELOPED AT SUBMITTAL. 

This amendment would amend 38 United States Code (U.S.C.) 

§ 5110(b) to provide an effective date for an award of disability compensation to a Veteran who submits an application that sets forth 

a claim that is ‘‘fully-developed’’ as of the date of submittal of the 

application. The effective date of such an award would be fixed in 

accordance with the facts found, but could not be earlier than the 

date one year earlier than the date VA received the application. VA 

does not support enactment of this amendment. 

The availability of a retroactive effective date for an award of 

disability compensation granted on a claim fully developed when 

submitted would create an incentive for Veterans to file fully developed claims. Submission of more fully developed claims would free 

up resources at VA regional offices to address the claim backlog. 

However, VA does not support this amendment because it would 

penalize Veterans who, through no fault of their own, are not able 

43 

to submit all the evidence necessary to decide the claim with the 

initial application. This would lead to the inequitable result of Veterans with similar disability claims receiving different compensation amounts based on the extent of medical treatment they may 

have received in the year prior to submission of their claims and 

the types of information readily available to them. Further, it 

would provide Veterans whose claims involve relatively simple fact 

issues with a greater benefit than Veterans whose claims are factually complex but no less meritorious. 

We note that certain claimants already receive retroactive benefits. Under 38 U.S.C. § 5110(b)(1), if a Veteran files a claim for disability compensation within one year of discharge from military 

service, the effective date of an award will be the day following the 

date of the Veteran’s discharge. Under 38 U.S.C. § 5110(b)(2), if a 

Veteran files a claim for increased compensation within one year 

of the date the disability increased, the effective date of an award 

may be retroactive to the date of such increase. Entitlement to 

those retroactive payments is based on the prompt filing of a claim, 

which is generally within the claimant’s control. Because retroactive payments under this amendment may rest upon matters beyond a claimant’s control, it would create an inequity not found in 

existing law. The creation of another category of claimants, specifically those who submit a fully developed claim, who are eligible for 

retroactive benefits also would add more complexity to the adjudication process and significantly increase benefit entitlement 

costs. 

We cannot estimate costs without knowing how many fully-developed claims would be submitted and the disability ratings awarded 

to these Veterans. 

PROCESSING OF APPLICATIONS FOR RELIEF FROM ADJUDICATION OF

MENTAL INCOMPETENCE FOR CERTAIN PURPOSES. 

Under current law, VA has one year to process applications for 

relief from restrictions on buying firearms imposed because a person has been adjudicated as a mental defective or committed to a 

mental institution. If VA fails to resolve a claim for relief within 

365 days, the claim is deemed denied for purposes of judicial review of agency action. This amendment would create a statutory 

provision specific to VA that would require that such applications 

for relief be processed not later than 180 days after receipt, and if 

VA fails to ‘‘resolve such application’’ within 180 days, for any reason, the application for relief would be deemed granted. 

VA agrees that relief applications should be processed in a timely 

manner. However, VA has great difficulty in adjudicating cases of 

this type, which involve issues of public safety that fall outside 

VA’s mission. VA is concerned that this provision could raise serious issues of public safety and potential liability if a person whose 

restrictions are relieved on this basis obtains firearms and causes 

death or injury. The Committee should also consider the Department of Justice’s views regarding the legal and policy implications 

of this provision. 

44 

REQUIREMENT THAT BID SAVINGS ON MAJOR MEDICAL FACILITY

PROJECTS OF DEPARTMENT OF VETERANS AFFAIRS BE USED FOR

OTHER MAJOR MEDICAL FACILITY CONSTRUCTION PROJECTS OF THE

DEPARTMENT. 

This amendment would modify 38 U.S.C. § 8104(d) to state that, 

‘‘[i]n any fiscal year, unobligated amounts in the Construction, 

Major Projects account that are a direct result of bid savings from 

a major medical facility project may only be obligated for other 

major medical facility projects authorized for that fiscal year or a 

previous fiscal year.’’ VA does not support enactment of this 

amendment. 

VA is concerned that this amendment would limit a Secretary’s 

flexibility to apply construction dollars where he or she deems 

them most needed. Specifically, the amendment would restrict VA’s 

ability to respond to emergent situations as they arise. VA currently is allowed to use major construction bid savings for any VA 

major construction project, consistent with authorization and programming limitations contained in chapter 81 of title 38, U.S.C. 

The amendment would also add new fiscal year restrictions because bid savings could only be used for projects authorized in the 

current fiscal year or in a prior fiscal year. This would hamper the 

Secretary’s ability to use unobligated balances that are authorized 

in future fiscal years to respond to new project needs in as timely 

a manner as possible to optimize the infrastructure serving our Nation’s Veterans. 

Congress already maintains close oversight and control over 

major construction projects. VA projects may not move forward 

without budgetary review and congressional authorization, and the 

Department now consults with Congressional committees regarding 

any substantial movement of funds. This amendment would severely impede VA’s ability to maintain flexibility in major construction projects. 

ACTION PLAN TO IMPROVE CORRELATION BETWEEN

EMPLOYEE PAY AND PERFORMANCE. 

This amendment would require VA, in consultation with the Director of the Office of Personnel Management, to submit to Congress an action plan for improving the correlation between pay, advancement, and rewards of VA employees with their job performance. This amendment is specifically focused on VA employees who 

process and adjudicate claims for compensation under chapters 11 

and 13 of title 38, U.S.C. (i.e., employees who work within VA at 

the Veterans Benefits Administration (VBA)), but would apply to 

all VA employees. While VA appreciates the intent of this amendment, VA does not support enactment. 

VBA already has in place elaborate metrics for tracking the adjudication of cases on which employee performance evaluations are 

based. The performance management system that is already in 

place for VBA, and for that matter, VA, provides the necessary correlation between job performance and employee pay, advancement 

and compensation as required by chapter 43 of title 5, U.S.C. This 

performance management system includes performance standards 

that are aligned with VBA and VA’s corporate performance objecVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00044 Fmt 6604 Sfmt 6604 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
45 

tives and goals, and VA reviews and updates this system, as needed. Additionally, chapter 45 of title 5, U.S.C., provides VA authority to give awards to employees—another mechanism to connect 

pay and performance. Also, for General Schedule employees, VA 

can provide Quality Step Increases to employees with the highest 

performance rating. 

This system, in conjunction with the existing professional development opportunities that VA offers its employees, effectively and 

appropriately aligns our employees’ professional contributions and 

accomplishments with their compensation levels and rewards. Further, VA’s senior executive performance management system is certified by the Office of Personnel Management and the Office of 

Management and Budget. Certification requirements include alignment of performance standards with VA’s strategic goals and objectives. While this amendment is expressly applicable to VBA employees, it would apply to all VA employees. This approach is overly broad if Congress’ goal is to improve the efficiency of VA’s claims 

processing. 

Given VBA already has a system in place for tracking the adjudication of cases on which employee performance evaluations are 

based, VA will be willing to work with Congress to provide a briefing regarding the system currently in existence, rather than create 

a new action plan as required by this legislation. 

While the anticipated cost of preparing the action plan described 

in this proposed legislation would likely be nominal, the commitment of personnel resources and time would be significant. 

Thank you for the opportunity to provide the Department’s views 

on these amendments. I look forward to continuing to work together with you on our shared goals of improving benefits and services to our Nation’s Veterans. Thank you for your ongoing support 

of our mission. 

The Office of Management and Budget has advised that there is 

no objection to the submission of this report from the standpoint 

of the Administration’s program. 

Sincerely, 

ERIC K. SHINSEKI. 

46 

47 

48 

49 

50 

51 

52 

53 

54 

55 

56 

57 

* * * * * * * 

(58) 

CHANGES IN EXISTING LAW

In compliance with rule XXVI paragraph 12 of the Standing 

Rules of the Senate, changes in existing law made by the Committee 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 II. General Benefits 

* * * * * * * 

Chapter 11. Compensation for Service-Connected Disability 

or Death 

* * * * * * * 

Subchapter VI. General Compensation Provisions 

* * * * * * * 

SEC. 1157. COMBINATION OF CERTAIN RATINGS 

(a) IN GENERAL.—The Secretary øThe Secretary¿ shall provide 

for the combination of ratings and pay compensation at the rates 

prescribed in subchapter II of this chapter to those veterans who 

served during a period of war and during any other time, who have 

suffered disability in line of duty in each period of service. 

(b) INTERMEDIATE ASSIGNMENT OF RATINGS.—(1) In the case of a 

veteran who submits to the Secretary a claim for compensation 

under this chapter for more than one condition and the Secretary 

determines that a disability rating can be assigned without further 

development for one or more conditions but not all conditions in the 

claim, the Secretary shall— 

(A) expeditiously assign a disability rating for the condition 

or conditions that the Secretary determined could be assigned 

without further development; and 

(B) continue development of the remaining conditions. 

(2) If the Secretary is able to assign a disability rating for a condition described in paragraph (1)(B) with respect to a claim, the 

Secretary shall assign such rating and combine such rating with 

the rating or ratings previously assigned under paragraph (1)(A) 

with respect to that claim. 

(3) If the Secretary determines, after assigning a rating for a condition under paragraph (1)(A), that further development of the conVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00058 Fmt 6604 Sfmt 6603 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
59 

dition could result in assignment of a higher rating, the Secretary 

shall continue development of such condition and reassess the rating. 

* * * * * * * 

Chapter 15. Pension for Non-Service-Connected Disability 

or Death or for Service 

* * * * * * * 

Subchapter II. Veterans’ Pensions 

* * * * * * * 

NON-SERVICE-CONNECTED DISABILITY PENSION 

SEC. 1521. VETERANS OF A PERIOD OF WAR 

* * * * * * * 

(f)(1) * * * 

(2) If either such veteran is in need of regular aid and attendance, the annual rate provided by paragraph (1) of this 

subsection shall be $23,396. If both such veterans are in need 

of regular aid and attendance, such rate shall be ø$30,480¿ 

$31,305. 

* * * * * * * 

Part IV. General Administrative Provisions 

* * * * * * * 

Chapter 51. Claims, Effective Dates, and Payments 

Sec. 

SUBCHAPTER I. CLAIMS 

5100. Definition of ‘‘claimant’’. 

* * * * * * * 

5103A. Duty to assist claimants. 

5103B. Treatment of private medical opinions. 

5103C. Expedited review of claims for disability compensation. 

5103D. Procedures for fully developed claims. 

* * * * * * * 

Subchapter I. Claims 

* * * * * * * 

SEC. 5101. CLAIMS AND FORMS 

(a)(1) A specific øA specific¿ claim in the form prescribed by the 

Secretary (or jointly with the Commissioner of Social Security, as 

prescribed by section 5105 of this title must be filed in order for 

benefits to be paid or furnished to any individual under the laws 

administered by the Secretary. 

(2) If an individual has not attained the age of 18 years, is mentally incompetent, or is physically unable to sign a form, a form 

60 

filed under paragraph (1) for the individual may be signed by a 

court appointed representative or a person who is responsible for the 

care of the individual, including a spouse or other relative. If the 

individual is in the care of an institution, the manager or principal 

officer of the institution may sign the form. 

(b) * * * 

(c)(1) Any person who applies for, signs a form on behalf of a person to apply for, or is in receipt of any compensation or pension 

benefit under laws administered by the Secretary shall, if requested by the Secretary, furnish the Secretary with the social security number of such person, or TIN in the case that the person 

is not an individual, and the social security number of any dependent or beneficiary on whose behalf, or based upon whom, such person applies for or is in receipt of such benefit. A person is not required to furnish the Secretary with a social security number for 

any person to whom a social security number has not been assigned. 

(2) The Secretary shall deny the application of or terminate the 

payment of compensation or pension to a person who fails to furnish the Secretary with a social security number or TIN required 

to be furnished pursuant to paragraph (1) of this subsection. The 

Secretary may thereafter reconsider the application or reinstate 

payment of compensation or pension, as the case may be, if such 

person furnishes the Secretary with such social security number or 

TIN. 

(3) * * * 

(d) In this section: 

(1) The term ‘‘mentally incompetent’’ with respect to an individual means that the individual lacks the mental capacity— 

(A) to provide substantially accurate information needed 

to complete a form; or 

(B) to certify that the statements made on a form are true 

and complete. 

(2) The term ‘‘TIN’’ has the meaning given the term in section 

7701(a)(41) of the Internal Revenue Code of 1986. 

* * * * * * * 

SEC. 5103. NOTICE TO CLAIMANTS OF REQUIRED INFORMATION AND 

EVIDENCE 

(a) REQUIRED INFORMATION AND EVIDENCE.— 

(1) øUpon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the 

claimant’s representative, if any, of any information, and any 

medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.¿ If the Secretary receives a complete or substantially complete application 

that does not include information or medical or lay evidence not 

previously provided to the Secretary that is necessary to substantiate the claim, the Secretary shall, upon receipt of such application, notify the claimant and the claimant’s representative, 

if any, that such information or evidence is necessary to substantiate and grant 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 porVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00060 Fmt 6604 Sfmt 6601 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
61 

tion, 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) * * * 

(3) A notice provided under this subsection shall inform a 

claimant, as the Secretary considers appropriate with respect to 

the claimant’s claim— 

(A) of the rights of the claimant to assistance under section 5103A of this title; and 

(B) if the claimant submits a private medical opinion in 

support of a claim for disability compensation, how such 

medical opinion will be treated under section 5103B of this 

title. 

* * * * * * * 

SEC. 5103B. TREATMENT OF PRIVATE MEDICAL OPINIONS 

(a) IN GENERAL.—If a claimant submits a private medical opinion 

in support of a claim for disability compensation in accordance with 

standards established by the Secretary, such opinion shall be treated by the Secretary with the same deference as a medical opinion 

provided by a Department health care provider. 

(b) SUPPLEMENTAL INFORMATION.—(1) If a private medical opinion submitted as described in subsection (a) is found by the Secretary to be competent, credible, and probative, but otherwise not entirely adequate for purposes of assigning a disability rating or determining service-connection and the Secretary determines a medical 

opinion from a Department health care provider is necessary for 

such purposes, the Secretary shall obtain from an appropriate Department health care provider (as determined pursuant to the 

standards described in subsection (a)) a medical opinion that is 

adequate for such purposes. 

(2) If a private medical opinion submitted as described in subsection (a) addresses a matter relevant to the claim described in 

such subsection and such matter is within an area of expertise of 

the provider of such opinion, any opinion obtained by the Secretary 

under paragraph (1) of this subsection that addresses the same matter shall, to the extent feasible, be obtained from a health care provider of the Department that has expertise in that area. 

(c) DEPARTMENT HEALTH CARE PROVIDER DEFINED.—In this section, the term ‘‘Department health care provider’’ includes a provider of health care who provides health care under contract with 

the Department. 

SEC. 5103C. EXPEDITED REVIEW OF CLAIMS FOR DISABILITY COMPENSATION 

(a) PROCESS REQUIRED.—The Secretary shall establish a process 

for the rapid identification of initial claims for disability compensation that should, in the adjudication of such claims, receive priority 

in the order of review. 

(b) REVIEW OF INITIAL CLAIMS.—As part of the process required 

by subsection (a), the Secretary shall assign employees of the Department who are experienced in the processing of claims for disability compensation to carry out a preliminary review of all initial 

claims for disability compensation submitted to the Secretary in 

order to identify whether— 

62 

(1) the claims have the potential of being adjudicated quickly; 

(2) the claims qualify for priority treatment under paragraph 

(2) of subsection (c); and 

(3) a temporary disability rating could be assigned with respect to the claims under section 1156 of this title. 

(c) PRIORITY IN ADJUDICATION OF CLAIMS.—(1) Except as provided in paragraph (2), the Secretary shall, in the adjudication of 

claims for disability compensation submitted to the Secretary, give 

priority in the order of review of such claims to claims identified 

under subsection (b)(1) as having the potential of being adjudicated 

quickly. 

(2) The Secretary may, under regulations the Secretary shall prescribe, provide priority in the order of review of claims for disability 

compensation. 

SEC. 5103D. PROCEDURES FOR FULLY DEVELOPED CLAIMS 

Upon notification received from a claimant that the claimant has 

no additional information or evidence to submit, the Secretary may 

determine that the claim is a fully developed claim. The Secretary 

shall then undertake any development necessary for any Federal 

records, medical examinations, or opinions relevant to the claim 

and may decide the claim based on all the evidence of record. 

SEC. 5104. DECISIONS AND NOTICES OF DECISIONS 

(a) In the case of a decision by the Secretary under section 511 

of this title affecting the provision of benefits to a claimant, the 

Secretary shall, on a timely basis, provide to the claimant (and to 

the claimant’s representative) notice of such decision. øThe notice 

shall include an explanation of the procedure for obtaining review 

of the decision.¿ 

(b) In any case where the Secretary denies a benefit sought, the 

notice required by subsection (a) shall øalso include (1) a statement 

of the reasons for the decision, and (2) a summary of the evidence 

considered by the Secretary.¿ include the following: 

(1) A statement of the reasons for the decision. 

(2) A summary of the evidence relied upon by the Secretary 

in making the decision. 

(3) An explanation of the procedure for obtaining review of 

the decision, including the period prescribed under paragraph 

(1) of section 7105(b) of this title and the good cause exception 

under paragraph (3) of such section. 

(4) A form that, once completed, can serve as a notice of disagreement under section 7105(a) of this title. 

SEC. 5105. JOINT APPLICATIONS FOR SOCIAL SECURITY AND DEPENDENCY AND INDEMNITY COMPENSATION 

(a) The Secretary and the Commissioner of Social Security 

øshall¿ may jointly prescribe forms for use by survivors of members 

and former members of the uniformed services in filing application 

for benefits under chapter 13 of this title and title II of the Social 

Security Act (42 U.S.C. 401 et seq.). øEach such form¿ Such forms 

øshall¿ may request information sufficient to constitute an application for benefits under both chapter 13 of this title and title II of 

the Social Security Act (42 U.S.C. 401 et seq.). 

(b) When an application øon such a form¿ on any form indicating 

an intent to apply for survivor benefits is filed with either the SecVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00062 Fmt 6604 Sfmt 6601 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
63 

retary or the Commissioner of Social Security, it shall be deemed 

to be an application for benefits under both chapter 13 of this title 

and title II of the Social Security Act (42 U.S.C. 401 et seq.). A copy 

of each such application filed with either the Secretary or the Commissioner, together with any additional information and supporting 

documents (or certifications thereof) which may have been received 

by the Secretary or the Commissioner with such application, and 

which may be needed by the other official in connection therewith, 

shall be transmitted by the Secretary or the Commissioner receiving the application to the other official. The preceding sentence 

shall not prevent the Secretary and the Commissioner of Social Security from requesting the applicant, or any other individual, to 

furnish such additional information as may be necessary for purposes of chapter 13 of this title and title II of the Social Security 

Act (42 U.S.C. 401 et seq.) respectively. 

* * * * * * * 

Subchapter II. Effective Dates 

SEC. 5110. EFFECTIVE DATES OF AWARDS 

(a) * * * 

(b)(1) * * * 

(2) The effective date of an award of disability compensation to 

a veteran who submits an application therefor that sets forth a 

claim that is fully-developed (as prescribed by the Secretary for purposes of this paragraph) as of the date of submittal shall be fixed 

in accordance with the facts found, but shall not be earlier than the 

date that is one year before the date of receipt of the application. 

(3) ø(2)¿ The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that 

an increase in disability had occurred, if application is received 

within one year from such date. 

(4) ø(3)¿(A) The effective date of an award of disability pension 

to a veteran described in subparagraph (B) of this paragraph shall 

be the date of application or the date on which the veteran became 

permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the 

advantage of the veteran. 

* * * * * * * 

Chapter 53. Special Provisions Relating to Benefits 

* * * * * * * 

SEC. 5312. ANNUAL ADJUSTMENT OF CERTAIN BENEFIT RATES 

* * * * * * * 

(d)(1) Whenever there is an increase in benefit amounts payable 

under title II of the Social Security Act (42 U.S.C. 401 et seq.) as 

a result of a determination made under section 215(i) of such Act 

(42 U.S.C. 415(i)), the Secretary shall, effective on the date of such 

increase in benefit amounts, increase the dollar amounts in effect for 

the payment of disability compensation and dependency and indemnity compensation by the Secretary, as specified in paragraph (2), 

as such amounts were in effect immediately before the date of such 

64 

increase in benefit amounts payable under title II of the Social Security Act, by the same percentage as the percentage by which such 

benefit amounts are increased. 

(2) The dollar amounts to be increased pursuant to paragraph (1) 

are the following: 

(A) COMPENSATION.—Each of the dollar amounts in effect 

under section 1114 of this title. 

(B) ADDITIONAL COMPENSATION FOR DEPENDENTS.—Each of 

the dollar amounts in effect under section 1115(1) of this title. 

(C) CLOTHING ALLOWANCE.—The dollar amount in effect 

under section 1162 of this title. 

(D) NEW DIC RATES.—Each of the dollar amounts in effect 

under paragraphs (1) and (2) of section 1311(a) of this title. 

(E) OLD DIC RATES.—Each of the dollar amounts in effect 

under section 1311(a)(3) of this title. 

(F) ADDITIONAL DIC FOR SURVIVING SPOUSES WITH MINOR

CHILDREN.—The dollar amount in effect under section 1311(b) 

of this title. 

(G) ADDITIONAL DIC FOR DISABILITY.—Each of the dollar 

amounts in effect under sections 1311(c) and 1311(d) of this 

title. 

(H) DIC FOR DEPENDENT CHILDREN.—Each of the dollar 

amounts in effect under sections 1313(a) and 1314 of this title. 

(3) Whenever there is an increase under paragraph (1) in amounts 

in effect for the payment of disability compensation and dependency 

and indemnity compensation, the Secretary shall publish such 

amounts, as increased pursuant to such paragraph, in the Federal 

Register at the same time as the material required by section 

215(i)(2)(D) of the Social Security Act (42 U.S.C. 415(i)(2)(D)) is 

published by reason of a determination under section 215(i) of such 

Act (42 U.S.C. 415(i)). 

* * * * * * * 

Chapter 55. Minors, Incompetents, and Other Wards 

* * * * * * * 

SEC. 5502. PAYMENTS TO AND SUPERVISION OF FIDUCIARIES 

* * * * * * * 

(f)(1) The Secretary may require any person appointed or recognized as a fiduciary for a Department beneficiary under this section 

to provide authorization for the Secretary to obtain (subject to the 

cost reimbursement requirements of section 1115(a) of the Right to 

Financial Privacy Act of 1978 (12 U.S.C. 3415)) from any financial 

institution any financial record held by the institution with respect 

to the fiduciary or the beneficiary whenever the Secretary determines that the financial record is necessary— 

(A) for the administration of a program administered by the 

Secretary; or 

(B) in order to safeguard the beneficiary’s benefits against neglect, misappropriation, misuse, embezzlement, or fraud. 

(2) Notwithstanding section 1104(a)(1) of such Act (12 U.S.C. 

3404(a)(1)), an authorization provided by a fiduciary under paraVerDate Nov 24 2008 16:11 Nov 30, 2010 Jkt 000000 PO 00000 Frm 00064 Fmt 6604 Sfmt 6603 H:\REPORTS AND CORDONS\S. 3517 - CLAIMS - 111TH 2ND\S3517RPT.TXT SVETS
65 

graph (1) with respect to a beneficiary shall remain effective until 

the earliest of— 

(A) the approval by a court or the Secretary of a final accounting of payment of benefits under any law administered by 

the Secretary to a fiduciary on behalf of such beneficiary; 

(B) in the absence of any evidence of neglect, misappropriation, misuse, embezzlement, or fraud, the express revocation by 

the fiduciary of the authorization in a written notification to the 

Secretary; or 

(C) the date that is three years after the date of the authorization. 

(3)(A) An authorization obtained by the Secretary pursuant to this 

subsection shall be considered to meet the requirements of the Right 

to Financial Privacy Act of 1978 (12 U.S.C. 3401 et seq.) for purposes of section 1103(a) of such Act (12 U.S.C. 3403(a)), and need 

not be furnished to the financial institution, notwithstanding section 

1104(a) of such Act (12 U.S.C. 3404(a)), if the Secretary provides a 

copy of the authorization to the financial institution. 

(B) The certification requirements of section 1103(b) of such Act 

(12 U.S.C. 3403(b)) shall not apply to requests by the Secretary pursuant to an authorization provided under this subsection. 

(C) A request for a financial record by the Secretary pursuant to 

an authorization provided by a fiduciary under this subsection is 

deemed to meet the requirements of section 1104(a)(3) of such Act 

(12 U.S.C. 3404(a)(3)) and the matter in section 1102 of such Act 

(12 U.S.C. 3402) that precedes paragraph (1) of such section if such 

request identifies the fiduciary and the beneficiary concerned. 

(D) The Secretary shall inform any person who provides authorization under this subsection of the duration and scope of the authorization. 

(E) If a fiduciary of a Department beneficiary refuses to provide, 

or revokes, any authorization to permit the Secretary to obtain from 

any financial institution any financial record concerning benefits 

paid by the Secretary for such beneficiary, the Secretary may, on 

that basis, revoke the appointment or the recognition of the fiduciary for such beneficiary and for any other Department beneficiary 

for whom such fiduciary has been appointed or recognized. If the 

appointment or recognition of a fiduciary is revoked, benefits may 

be paid as provided in subsection (d). 

(4) For purposes of section 1113(d) of such Act (12 U.S.C. 

3413(d)), a disclosure pursuant to this subsection shall be considered a disclosure pursuant to a Federal statute. 

(5) In this subsection: 

(A) The term ‘‘fiduciary’’ includes any person appointed or 

recognized to receive payment of benefits under any law administered by the Secretary on behalf of a Department beneficiary. 

(B) The term ‘‘financial institution’’ has the meaning given 

such term in section 1101 of such Act (12 U.S.C. 3401), except 

that such term shall also include any benefit association, insurance company, safe deposit company, money market mutual 

fund, or similar entity authorized to do business in any State. 

(C) The term ‘‘financial record’’ has the meaning given such 

term in such section. 

* * * * * * * 

66 

Part V. Boards, Administrations, and Services 

Chapter 71. Board of Veterans’ Appeals 

* * * * * * * 

SEC. 7103. RECONSIDERATION; CORRECTION OF OBVIOUS ERRORS 

* * * * * * * 

(c)(1) Except as provided in paragraph (2), if a person adversely 

affected by a final decision of the Board, who has not filed a notice 

of appeal with the United States Court of Appeals for Veterans 

Claims under section 7266(a) of this title within the period set forth 

in that section, files a document with the Board or the agency of 

original jurisdiction referred to in section 7105(b)(1) of this title that 

expresses disagreement with such decision not later than 120 days 

after the date of such decision, such document shall be treated as 

a motion for reconsideration of such decision under subsection (a). 

(2) A document described in paragraph (1) shall not be treated as 

a motion for reconsideration of the decision under paragraph (1) 

if— 

(A) the Board or the agency of original jurisdiction referred 

to in paragraph (1)— 

(i) receives the document described in paragraph (1); 

(ii) determines that such document expresses an intent to 

appeal the decision to the United States Court of Appeals 

for Veterans Claims; and 

(iii) forwards such document to the United States Court 

of Appeals for Veterans Claims; and 

(B) the United States Court of Appeals for Veterans Claims 

receives such document within the period set forth by section 

7266(a) of this title. 

(d) ø(c)¿ The Board on its own motion may correct an obvious 

error in the record, without regard to whether there has been a motion or order for reconsideration. 

* * * * * * * 

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 østatement of the 

case¿ post-notice of disagreement decision is furnished as prescribed 

in this section. 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 øone year¿ 180 days 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 or 

transmitted by electronic means before the expiration of the øoneyear¿ 180-day period will be accepted as timely filed. 

(2) * * * 

67 

(3)(A) A notice of disagreement not filed within the time prescribed by paragraph (1) shall be treated by the Secretary as timely 

filed if— 

(i) the Secretary determines that the claimant, legal guardian, or other accredited representative, attorney, or authorized 

agent filing the notice had good cause for the lack of filing 

within such time; and 

(ii) the notice of disagreement is filed not later than 186 days 

after the period prescribed by paragraph (1). 

(B) For purposes of this paragraph, good cause shall include the 

following: 

(i) Circumstances relating to any physical, mental, educational, or linguistic limitation of the claimant, legal guardian, representative, attorney, or authorized agent concerned (including lack of facility with the English language). 

(ii) Circumstances relating to significant delay in the delivery 

of the initial decision or of the notice of disagreement caused by 

natural disaster or factors relating to geographic location. 

(iii) A change in financial circumstances, including the payment of medical expenses or other changes in income or net 

worth that are considered in determining eligibility for benefits 

and services on an annualized basis for purposes of needs-based 

benefits under chapters 15 and 17 of this title. 

(c) * * * 

(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 østatement of the case¿ post-notice of disagreement decision. A østatement of the case¿ post-notice 

of disagreement decision shall include the following: 

ø(A) A summary of the evidence in the case pertinent to the 

issue or issues with which disagreement has been expressed. 

ø(B) A citation to pertinent laws and regulations and a discussion of how such laws and regulations affect the agency’s 

decision. 

ø(C) The decision on each issue and a summary of the reasons for such decision.¿ 

(A) A description of the specific facts in the case that support the agency’s decision, including, if applicable, an assessment as to the credibility of any lay evidence pertinent 

to the issue or issues with which disagreement has been expressed. 

(B) A citation to pertinent laws and regulations that support the agency’s decision. 

(C) A statement that addresses each issue and provides 

the reasons why the evidence relied upon supports the conclusions of the agency under the specific laws and regulations applied. 

(D) The date by which a substantive appeal must be filed 

in order to obtain further review of the decision. 

68 

(E) The rights of the claimant under subsection (f). 

(2) A østatement of the case¿ post-notice of disagreement decision, 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 ‘‘østatement of the case¿ post-notice of disagreement decision’’ prescribed in paragraph (1) of this subsection will 

be submitted to the claimant and to the claimant’s representative, 

if there is one. øThe 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.¿ 

ø(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. 

ø(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.¿ 

(4) The post-notice of disagreement decision shall be written in 

plain language. 

(e)(1) A claimant shall be afforded a period of 60 days from the 

date the post-notice of disagreement decision is mailed under subsection (d) to file a substantive appeal. 

(2)(A) The period under paragraph (1) may be extended for an additional 60 days for good cause shown on a request for such extension submitted in writing within such period. 

(B) For purposes of this paragraph, good cause shall include the 

following: 

(i) Circumstances relating to any physical, mental, educational, or linguistic limitation of the claimant, legal guardian, or other accredited representative, attorney, or authorized 

agent filing the request (including lack of facility with the 

English language). 

(ii) Circumstances relating to significant delay in the delivery 

of the initial decision or of the notice of disagreement caused by 

natural disaster or factors relating to geographic location. 

(iii) A change in financial circumstances, including the payment of medical expenses or other changes in income or net 

worth that are considered in determining eligibility for benefits 

and services on an annualized basis for purposes of needs-based 

benefits under chapters 15 and 17 of this title. 

(3) A substantive appeal under this subsection shall identify the 

particular determination or determinations being appealed and allege specific errors of fact or law made by the agency of original jurisdiction in each determination being appealed. 

69 

(4) A claimant in any case under this subsection may not be presumed to agree with any statement of fact contained in the post-notice of disagreement decision to which the claimant does not specifically express disagreement. 

(5) If the claimant does not file a substantive appeal in accordance with the provisions of this chapter within the period afforded 

under paragraphs (1) and (2), as the case may be, the agency of 

original jurisdiction shall dismiss the appeal and notify the claimant of the dismissal. The notice shall include an explanation of the 

procedure for obtaining review of the dismissal by the Board of Veterans’ Appeals. 

(6) In order to obtain review by the Board of a dismissal of an 

appeal by the agency of original jurisdiction, a claimant shall file 

a request for such review with the Board within the 60-day period 

beginning on the date on which notice of the dismissal is mailed 

pursuant to paragraph (5). 

(7) If a claimant does not file a request for review by the Board 

in accordance with paragraph (6) within the prescribed period or if 

such a request is timely filed and the Board affirms the dismissal 

of the appeal, the determination of the agency of original jurisdiction regarding the claim for benefits under this title shall become 

final and the claim may not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent 

with this title. 

(8) If an appeal is not dismissed by the agency of original jurisdiction, the Board may nonetheless dismiss any appeal which is— 

(A) untimely; or 

(B) fails to allege specific error of fact or law in the determination being appealed. 

(f) 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. Such request for review 

shall accompany the submittal of the evidence or be made within 30 

days of the submittal. 

SEC. 7105A. SIMULTANEOUSLY CONTESTED CLAIMS 

(a) * * * 

(b) Upon the filing of a notice of disagreement, all parties in interest will be furnished with a østatement of the case¿ post-notice 

of disagreement decision 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 

østatement of the case¿ post-notice of disagreement decision 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 

70 

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 øoneyear period described in section 7105¿ period described in section 

7105(b)(1) 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 

* * * * * * * 

(d)(1) øAn appellant may request that a hearing before the Board 

be held at its principal location or at a facility of the Department 

located within the area served by a regional office of the Department.¿ Upon request by an appellant for a hearing before the 

Board, the Board shall present the appellant with the following: 

(A) The option of holding the hearing at— 

(i) the Board’s principal location; or 

(ii) a facility of the Department located within the area 

served by a regional office of the Department. 

(B) A recommendation as to the option presented under subparagraph (A) that would lead to the earliest possible date for 

the hearing, including with respect to the use of facilities and 

equipment under subsection (e). 

(C) Statistics on the average wait experienced by similarly situated appellants for hearings at either option presented under 

subparagraph (A). 

* * * * * * * 

(e)(1) * * * 

(2)(A) When such øWhen such¿ facilities and equipment are 

available, the Chairman may afford the appellant an opportunity 

to participate in a hearing before the Board through the use of 

such facilities and equipment in lieu of a hearing held by personally appearing before a Board member or panel as provided in subsection (d). 

(B) Any such øAny such¿ hearing shall be conducted in the same 

manner as, and shall be considered the equivalent of, a personal 

hearing. 

(C) In affording the appellant an opportunity under subparagraph (A), the Board shall inform the appellant of the advantages 

and disadvantages of participating in a hearing through the use of 

such facilities and equipment. 

(D) If the appellant øIf the appellant¿ declines to participate in 

a hearing through the use of such facilities and equipment, the opportunity of the appellant to a hearing as provided in such subsection (d) shall not be affected. 

* * * * * * * 

Chapter 72. United States Court of Appeals for 

Veterans Claims 

* * * * * * * 

71 

Subchapter II. Procedure 

SEC. 7261. SCOPE OF REVIEW 

(a) In any action brought under this chapter, the Court of Appeals for Veterans Claimsø, to the extent necessary to its decision 

and when presented, shall¿ shall, when presented— 

* * * * * * * 

(c) In carrying out a review of a decision of the Board of Veterans’ 

Appeals, the Court shall render a decision on every issue raised by 

an appellant within the extent set forth in this section. 

(d) ø(c)¿ In no event shall findings of fact made by the Secretary 

or the Board of Veterans’ Appeals be subject to trial de novo by the 

Court. 

(e) ø(d)¿ When a final decision of the Board of Veterans’ Appeals 

is adverse to a party and the sole stated basis for such decision is 

the failure of the party to comply with any applicable regulation 

prescribed by the Secretary, the Court shall review only questions 

raised as to compliance with and the validity of the regulation. 

* * * * * * * 

SEC. 7266. NOTICE OF APPEAL 

(a) * * * 

(b)(1) The Court may extend the initial period for the filing of a 

notice of appeal set forth in subsection (a) for an additional period 

not to exceed 120 days from the expiration of such initial period 

upon a motion— 

(A) filed with the Court not later than 120 days after the expiration of such initial period; and 

(B) showing good cause for such extension. 

(2) If a motion for extension under paragraph (1) is filed after expiration of the initial period for the filing of a notice of appeal set 

forth in subsection (a), the notice of appeal shall be filed concurrently with, or prior to, the filing of the motion. 

(c) ø(b)¿ An appellant shall file a notice of appeal under this section by delivering or mailing the notice to the Court. 

(d) ø(c)¿ A notice of appeal shall be deemed to be received by the 

Court as follows: 

(1) * * * 

(2) * * * 

(e) ø(d)¿ For a notice of appeal mailed to the Court to be deemed 

to be received under øsubsection (c)(2)¿ subsection (d)(2) on a particular date, the United States Postal Service postmark on the 

cover in which the notice is posted must be legible. The Court shall 

determine the legibility of any such postmark and the Court’s determination as to legibility shall be final and not subject to review 

by any other Court. 

* * * * * * * 

Æ