79–006

106TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 106–781

VETERANS CLAIMS ASSISTANCE ACT OF 2000

JULY 24, 2000.—Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

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

submitted the following

R E P O R T

[To accompany H.R. 4864]

[Including cost estimate of the Congressional Budget Office]

The Committee on Veterans’ Affairs, to whom was referred the

bill (H.R. 4864) to amend title 38, United States Code, to reaffirm

and clarify the duty of the Secretary of Veterans Affairs to assist

claimants for benefits under laws administered by the Secretary,

and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as

amended do pass.

The amendment is as follows:

Strike all after the enacting clause and insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Veterans Claims Assistance Act of 2000’’.

SEC. 2. CLARIFICATION OF DEFINITION OF ‘‘CLAIMANT’’ FOR PURPOSES OF VETERANS LAWS.

(a) IN GENERAL.—Chapter 51 of title 38, United States Code, is amended by inserting before section 5101 the following new section:

‘‘§ 5100. Definition of ‘claimant’

‘‘For purposes of this chapter, the term ‘claimant’ means any individual applying

for, or submitting a claim for, any benefit under the laws administered by the Secretary.’’.

(b) CLERICAL AMENDMENT.—The table of sections at the beginning of such chapter

is amended by inserting before the item relating to section 5101 the following new

item:

‘‘5100. Definition of ‘claimant’.’’.

SEC. 3. ASSISTANCE TO CLAIMANTS.

(a) REAFFIRMATION AND CLARIFICATION OF DUTY TO ASSIST.—Chapter 51 of title

38, United States Code, is amended by striking sections 5102 and 5103 and inserting the following:

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‘‘§ 5102. Applications: forms furnished upon request; notice to claimants of

incomplete applications

‘‘(a) FURNISHING FORMS.—Upon request made in person or in writing by any person claiming or applying for a benefit under the laws administered by the Secretary,

the Secretary shall furnish such person, free of all expense, all such printed instructions and forms as may be necessary in establishing such claim.

‘‘(b) INCOMPLETE APPLICATIONS.—If a claimant’s application for a benefit under

the laws administered by the Secretary is incomplete, the Secretary shall notify the

claimant and the claimant’s representative, if any, of the information necessary to

complete the application. The Secretary shall notify each claimant of any additional

information and medical and lay evidence necessary to substantiate the claim. As

part of such notice, the Secretary shall indicate which portion of such evidence, if

any, is to be provided by the claimant and which portion of such evidence, if any,

the Secretary will attempt to obtain on behalf of the claimant.

‘‘(c) TIME LIMITATION.—In the case of evidence that the claimant is notified is to

be provided by the claimant, if such evidence is not received by the Secretary within

one year from the date of such notification, no benefits may be paid or furnished

by reason of such application.

‘‘(d) INAPPLICABILITY TO CERTAIN BENEFITS.—This section shall not apply to any

application or claim for Government life insurance benefits.

‘‘§ 5103. Applications: Duty to assist claimants

‘‘(a) DUTY TO ASSIST.—The Secretary shall make reasonable efforts to assist in obtaining evidence necessary to establish a claimant’s eligibility for a benefit under

a law administered by the Secretary. However, the Secretary may decide a claim

without providing assistance under this subsection when no reasonable possibility

exists that such assistance will aid in the establishment of eligibility for the benefit

sought.

‘‘(b) ASSISTANCE IN OBTAINING RECORDS.—(1) As part of the assistance provided

under subsection (a), the Secretary shall make reasonable efforts to obtain relevant

records that the claimant adequately identifies to the Secretary and authorizes the

Secretary to obtain.

‘‘(2) Whenever the Secretary, after making such reasonable efforts, is unable to

obtain all of the records sought, the Secretary shall inform the claimant that the

Secretary is unable to obtain such records. Such a notice shall—

‘‘(A) specifically identify the records the Secretary is unable to obtain;

‘‘(B) briefly explain the efforts that the Secretary made to obtain those

records;

‘‘(C) describe any further actions to be taken by the Secretary with respect

to the claim; and

‘‘(D) request the claimant, if the claimant intends to attempt to obtain such

records independently, to so notify the Secretary within a time period to be

specified in the notice.

‘‘(c) OBTAINING RECORDS FOR COMPENSATION CLAIMS.—In the case of a claim by

a veteran for disability compensation, the assistance provided by the Secretary

under subsection (a) shall include obtaining the following records if relevant to the

veteran’s claim:

‘‘(1) The claimant’s existing service medical records and, if the claimant has

furnished information sufficient to locate such records, other relevant service

records.

‘‘(2) Existing records of relevant medical treatment or examination of the veteran at Department health-care facilities or at the expense of the Department,

if the claimant has furnished information sufficient to locate such records.

‘‘(3) Information as described in section 5106 of this title.

‘‘(d) MEDICAL EXAMINATIONS FOR COMPENSATION CLAIMS.—In the case of a claim

by a veteran for disability compensation, the assistance provided by the Secretary

under subsection (a) shall include providing a medical examination, or obtaining a

medical opinion, when the evidence of record before the Secretary—

‘‘(1) establishes that—

‘‘(A) the claimant has—

‘‘(i) a current disability;

‘‘(ii) current symptoms of a disease that may not be characterized by

symptoms for extended periods of time; or

‘‘(iii) persistent or recurrent symptoms of disability following discharge or release from active military, naval, or air service; and

‘‘(B) there was an event, injury, or disease (or combination of events, injuries, or diseases) during the claimant’s active military, naval, or air service

capable of causing or aggravating the claimant’s current disability or symptoms, but

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‘‘(2) is insufficient to establish service-connection of the current disability or

symptoms.

‘‘(e) REGULATIONS.—The Secretary shall prescribe regulations to carry out this

section. Such regulations shall include provisions for—

‘‘(1) specifying the evidence necessary under subsection (a) to establish a

claimant’s eligibility for a benefit under a law administered by the Secretary;

and

‘‘(2) determining under subsections (b) and (c) what records are relevant to

a claim.

‘‘(f) RULE WITH RESPECT TO DISALLOWED CLAIMS.—Nothing in this section shall

be construed to require the Secretary to reopen a claim that has been disallowed

except when new and material evidence is presented or secured, as described in section 5108 of this title.

‘‘(g) OTHER ASSISTANCE NOT PRECLUDED.—Nothing in this section shall be construed as precluding the Secretary from providing such other assistance to a claimant as the Secretary considers appropriate.’’.

(b) REENACTMENT OF RULE FOR CLAIMANT’S LACKING A MAILING ADDRESS.—Chapter 51 of such title is amended by adding at the end the following new section:

‘‘§ 5126. Benefits not to be denied based on lack of mailing address

‘‘Benefits under laws administered by the Secretary may not be denied a claimant

on the basis that the claimant does not have a mailing address.’’.

(c) CLERICAL AMENDMENTS.—The table of sections at the beginning of chapter 51

of such title is amended—

(1) by striking the items relating to sections 5102 and 5103 and inserting the

following:

‘‘5102. Applications: forms furnished upon request; notice to claimants of incomplete applications.

‘‘5103. Applications: duty to assist claimants.’’;

and

(2) by adding at the end the following new item:

‘‘5126. Benefits not to be denied based on lack of mailing address.’’.

SEC. 4. BURDEN OF PROOF.

(a) REPEAL OF ‘‘WELL-GROUNDED CLAIM’’ RULE.—Section 5107 of title 38, United

States Code, is amended to read as follows:

‘‘§ 5107. Burden of proof; benefit of the doubt

‘‘(a) BURDEN OF PROOF.—Except when otherwise provided by this title or by the

Secretary in accordance with the provisions of this title, a claimant shall have the

burden of proving entitlement to benefits.

‘‘(b) BENEFIT OF THE DOUBT.—The Secretary shall consider all evidence and material of record in a case before the Department with respect to benefits under laws

administered by the Secretary and shall give the claimant the benefit of the doubt

when there is an approximate balance of positive and negative evidence regarding

any issue material to the determination of the matter.’’.

SEC. 5. PROHIBITION OF CHARGES FOR RECORDS FURNISHED BY OTHER FEDERAL DEPARTMENTS AND AGENCIES.

Section 5106 of title 38, United States Code, is amended by adding at the end the

following new sentence: ‘‘No charge may be imposed by the head of any such department or agency for providing such information.’’.

SEC. 6. EFFECTIVE DATE.

(a) IN GENERAL.—Except as specifically provided otherwise, the provisions of section 5107 of title 38, United States Code, as amended by section 4 of this Act, apply

to any claim—

(1) filed on or after the date of the enactment of this Act; or

(2) filed before the date of the enactment of this Act and not final as of the

date of the enactment of this Act.

(b) RULE FOR CLAIMS THE DENIAL OF WHICH BECAME FINAL AFTER THE COURT

OF APPEALS FOR VETERANS CLAIMS DECISION IN THE MORTON CASE.—(1) In the case

of any claim for benefits—

(A) the denial of which became final during the period beginning on July 14,

1999, and ending on the date of the enactment of this Act; and

(B) which was denied or dismissed by the Secretary of Veterans Affairs or a

court because the claim was not well grounded (as that term was used in section 5107(a) of title 38, United States Code, as in effect during that period),

the Secretary of Veterans Affairs shall, upon the request of the claimant, or on the

Secretary’s own motion, order the claim readjudicated under chapter 51 of such

title, as amended by this Act, as if such denial or dismissal had not been made.

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(2) A claim may not be readjudicated under this subsection unless the request is

filed or the motion made not later than two years after the date of the enactment

of this Act.

(3) In the absence of a timely request of a claimant, nothing in this Act shall be

construed as establishing a duty on the part of the Secretary of Veterans Affairs

to locate and readjudicate claims described in this subsection.

INTRODUCTION

On July 17, 2000, the Chairman and Ranking Member of the

Veterans’ Affairs Committee, the Honorable Bob Stump and the

Honorable Lane Evans, along with the Chairman and Ranking

Member of the Subcommittee on Benefits, the Honorable Jack

Quinn and the Honorable Bob Filner, introduced H.R. 4864 to

amend title 38, United States Code, to reaffirm and clarify the duty

of the Secretary of Veterans Affairs to assist claimants for benefits

under laws administered by the Secretary, and for other purposes.

On March 23, 2000, the Subcommittee on Benefits held a hearing

on the subject of ‘‘well-grounded’’ claims and H.R. 3193, the Duty

to Assist Veterans Act of 1999, introduced by the Honorable Lane

Evans and others. Witnesses testifying included: Mr. Richard

Schneider, Non Commissioned Officers Association; Mr. Leonard

Selfon, Esq., Vietnam Veterans of America; Mr. Rick Surratt, Disabled American Veterans; Mr. Carroll Williams, The American Legion; Mr. Geoff Hopkins, Paralyzed Veterans of America; Mr. John

McNeill, Veterans of Foreign Wars of the United States; and Honorable Joseph Thompson, Under Secretary for Benefits, Veterans

Benefits Administration.

Mr. Joseph Thompson testified about VA’s role in assisting veterans filing claims for benefits and the Department’s proposed

rules, as a result of the Morton v. West decision, relevant to the

concept of well-grounded claims and VA’s statutory duty to assist

claimants in the claim process. The veterans service organization

witnesses adamantly opposed VA’s regulations, and testified that

VA did not have the authority to make the changes proposed in

regulation.

SUMMARY OF THE REPORTED BILL

H.R. 4864, as amended, would:

1. Authorize the Secretary of Veterans Affairs to assist a claimant in obtaining evidence to establish entitlement to a benefit.

2. Eliminate the requirement that a claimant submit a ‘‘wellgrounded’’ claim before the Secretary can assist in obtaining

evidence. (In the context of claims for service-connected disability benefits, a ‘‘well-grounded’’ claim is one that has evidence of in-service injury or disease, a diagnosis of a current

disability or disease, and a medical opinion that the current

disability or disease is related to the in-service injury or

disease).

3. For most kinds of claims, require the Secretary to make reasonable efforts to obtain relevant records that the claimant

identifies and authorizes the Secretary to obtain.

4. For service-connected disability compensation claims, require

the Secretary to (a) obtain existing service medical records

and other Department treatment records, (b) obtain relevant

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1 H.R. Rept. No. 105–52, at 2 (1997).

2Duty to Assist Veterans Act of 1999: Hearings on H.R. 3193 Before the Subcomm. on Benefits of the House Veterans’ Affairs Committee, 106th Cong. 1–2 (2000) (statement of Joseph

Thompson, Under Secretary for Benefits, Department of Veterans Affairs).

records in the control of federal agencies, and (c) provide a

medical examination if the Secretary finds that the veteran

has a current disability or symptoms and there is evidence to

suggest that it may be related to an event, injury, or disease

which took place in service.

5. Define a ‘‘claimant’’ who would be eligible to receive assistance from the Secretary as any person seeking veterans’ benefits.

6. Require other Federal agencies to furnish relevant records to

the Department at no cost to the claimant.

7. Permit veterans who had claims denied or dismissed after the

Court of Appeals for Veterans Claims decision in Morton v.

West to request review of those claims within a two year period following enactment.

BACKGROUND AND DISCUSSION

As the Committee has noted, the Department of Veterans Affairs’

system for deciding benefits claims ‘‘is unlike any other adjudicative process. It is specifically designed to be claimant friendly. It

is non-adversarial; therefore, the VA must provide a substantial

amount of assistance to a veteran seeking benefits.’’ 1 This assistance includes requesting service records, medical records, and other

pertinent documents from sources identified by the claimant. VA

also provides medical examinations, when appropriate, to diagnose

or evaluate physical and mental conditions. The claims adjudication process inevitably involves some subjective judgment in evaluating the evidence in an individualized case. While VA regional offices historically requested service medical records and documentary evidence in the possession of VA medical facilities on claims,

the extent to which a claim is developed more fully to include a VA

examination or requesting private medical records differs among

VA’s regional offices depending on the subjective determination of

the claims examiner that a particular claim is not well-grounded.

In such cases, often involving claims filed many years after discharge from military service, a claimant may be requested to provide additional information before an examination is scheduled and

full development of the claim is undertaken. 2

As a result of court decisions construing the meaning of section

5107 of title 38, United States Code, concerning ‘‘well-grounded’’

claims and the Secretary’s ‘‘duty to assist’’ a veteran in obtaining

evidence in support of a claim, the VA is no longer able to provide

assistance to veterans as it has in the past. These decisions have

led to substantial differences among VA regional offices in the handling of claims which lack one or more of the elements needed to

‘‘well-ground’’ a claim as that term has been defined by the United

States Court of Appeals for Veterans Claims (CAVC). Testimony

before the Committee and review of files by Committee staff has

indicated confusion on the part of VA adjudicators concerning the

meaning and application of the ‘‘well-grounded’’ claim requirement.

An understanding of the CAVC’s development of the well-grounded

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3 Id., at 4. 4 Id.

claim concept is needed to understand VA’s current policy on this

issue.

JUDICIAL CONSTRUCTION OF ‘‘WELL-GROUNDED’’ CLAIM AND ‘‘DUTY TO

ASSIST’’

Soon after its establishment, the CAVC was confronted with the

necessity to construe the meaning of section 5107, particularly the

undefined term, ‘‘well-grounded’’ claim.3 In Gilbert v. Derwinski, 1

Vet. App. 49 (1990), the Court established a baseline for veterans’

claims adjudication. In this case, the Court read the language of

section 5107 as creating a ‘‘chronological’’ order for the submission

of evidence which constitutes a ‘‘well-grounded’’ claim and the triggering of the Secretary’s ‘‘duty to assist.’’

Read together, § 3007(a) and (b) [now codified at

§ 5107(a) and (b)] establish and allocate chronological obligations. Pursuant to § 3007(a) the initial obligation rests

with the veteran: ‘‘A person who submits a claim . . . shall

have the burden of submitting evidence sufficient to justify

a belief by a fair and impartial individual that the claim

is well grounded.’’ Under § 3007(b) the ‘‘benefit of the

doubt’’ rule does not shift ‘‘from the claimant to the [Secretary]’’ the initial burden to submit a facial valid claim.

Thus, the submission of a facially valid claim is necessary;

inherently incredible allegations of injury would obviously

not suffice.

Id. at 55 (citing 38 U.S.C. § 3007 now codified at § 5107).

In that same year, Murphy v. Derwinski, 1 Vet. App. 78 (1990),

refined the Court’s definition of a ‘‘well-grounded’’ claim. 4 Understanding the infancy of the Court and limited precedent case law,

the Court pointed to the fact that:

[b]ecause a well grounded claim is neither defined by the

statute nor the legislative history, it must be given a common sense construction. A well grounded claim is a plausible claim, one which is meritorious on its own or capable

of substantiation. Such a claim need not be conclusive but

only possible to satisfy the initial burden of § 3007(a) (now

codified at 38 U.S.C. § 5107(a)).

Id. at 81.

The Court was also confronted with the issue of deciding what

the Secretary’s ‘‘duty to assist’’ entailed:

When a claimant submits a properly filled out and executed VA form 21–526, Veteran’s Application for Compensation and Pension, the Secretary has the veteran’s biographical, family, medical, and service data. This information will enable the Secretary to fulfill his statutory

duty to assist the claimant by securing any relevant VA,

military or other governmental records. In addition, if private medical, hospital, employment or other civilian

records would assist the development of ‘the facts pertinent to the claim’, the Secretary would be able to request

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5 Id., at 5, quoting Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992). 6 Id., at 6. 7 Id., at 7. 8 Id., at 7, quoting Grivois at 139–140. 9 Id., at 7–8.

them from the claimant or, upon authorization, obtain

them directly.

Murphy at 82 (quoting S. Rept. No. 100–418, at 33–34 (1988)).

‘‘The Court has held that while the evidence to make a claim

well-grounded need not be conclusive, the statutory scheme ‘requires more than just an allegation; a claimant must submit supporting evidence’ that a claim is plausible.’’ 5 The meaning of ‘‘supporting evidence,’’ in turn, was refined by subsequent Court decisions. A 1993 Court decision held that ‘‘[w]here the determinative

issue involves medical causation or a medical diagnosis, competent

medical evidence to the effect that the claim is ‘plausible’ or ‘possible’ is required.’’ Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).

As a result of these and other Court decisions, the understanding

of a ‘‘well-grounded’’ claim evolved so that it included a requirement for the submission of medical evidence from a claimant who

was seeking benefits for a medical condition claimed to be related

to service. The lack of such medical evidence in the claim led the

Grottveit Court to conclude that the claim ‘‘was not one on which

relief could be granted; there was no claim to adjudicate on the

merits.’’ 6

In Grivois v. Brown, 6 Vet. App. 136 (1994), the CAVC stated

that it is the duty of VA claims examiners who first review a claim

to apply the ‘‘well-grounded’’ test ‘‘for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones.’’ The CAVC noted that the statutory scheme recognizes

that not all claims filed for VA benefits will be meritorious, and

that section 5107(a) ‘‘reflects a policy that implausible claims

should not consume the limited resources of the VA and force into

even greater backlog and delay’’ those claims which are well

grounded.7 The Court warned that ‘‘while no duty to assist arises

absent a well-grounded claim, if the Secretary, as a matter of policy, volunteers assistance to establish well groundedness, grave

questions of due process can arise if there is apparent disparate

treatment between claimants in this regard.’’ 8

VA’s response to this case was to revise its procedure manual in

January 1994 instructing field offices to fully develop claims before

deciding whether they are ‘‘well-grounded,’’ including requesting

service medical records, VA and other government records, and private records identified by the claimant as relevant to the claim.

VA’s policy was based on an understanding that although it may

not do less than the statute requires, it was not prohibited from

doing more than the statute requires.9

In 1995, the CAVC defined the specific requirements which

would ‘‘well-ground’’ a claim for service connection. In Caluza v.

Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir.

1996), the Court held that ‘‘in order for a claim to be well-grounded, there must be competent evidence [1] of current disability (a

medical diagnosis) . . . ; [2] of incurrence or aggravation of a disease or injury in service (lay or medical evidence) . . . ; [3] and of

a nexus between the in-service injury or disease and the current

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10 Id., at 8. 11 Id. 12 Id., at 10. 13 Id., at 10–11. 14 Id., at 11–12.

disability (medical evidence).’’ The United States Court of Appeals

for the Federal Circuit affirmed that holding in Epps v. Gober, 126

F.3d 1464 (Fed. Cir. 1997). These three basic elements or requirements have become a standard that a claimant must show in order

to establish entitlement to compensation under 38 U.S.C. § 1110.10

Nonetheless, believing that the statute did not prohibit VA from

volunteering assistance, the VA revised internal procedure manual

provisions and continued to operate and adjudicate claims in a

manner which delayed a decision on ‘‘well-groundedness’’ until a

claim had been fully developed.11

The VA position of providing assistance to claimants who had not

filed ‘‘well-grounded’’ claims was challenged by the CAVC in Morton v. West, 12 Vet. App. 477 (1999), decided on July 14, 1999. In

Morton, the claimant argued that the VA had created a blanket exception to the ‘‘well-grounded’’ claim requirement of section

5107(a). Citing VA’s internal procedures manual, the claimant argued that the VA had obligated itself to fully develop all claims, regardless of whether they were ‘‘well-grounded.’’ He asserted that

those manual provisions were valid exercises of the Secretary’s authority to create exceptions under the ‘‘[e]xcept when otherwise

provided’’ clause in the first sentence of section 5107(a).12

The CAVC rejected those assertions for two reasons. First, it concluded that the manual provisions at issue were merely internal

statements of policy or interpretation which could not be enforced

against VA. Second, CAVC concluded that if the manual provisions

were interpreted as establishing a blanket exception to the statute,

such an interpretation would be inconsistent with section 5107(a).

Additionally, the Court reiterated its prior holding that section

5107 reflects a Congressional policy that implausible claims should

not consume VA’s limited resources and force ‘‘well-grounded’’

claims into ever greater backlog and delay. . . . Morton, which is

currently on appeal to the Federal Circuit, required the Compensation and Pension Service to respond with a formal change in its

policy.13

In August 1999, the Department of Veterans Affairs issued a letter informing each VA regional office that a number of provisions

in their procedural manual were being rescinded as the result of

the Morton decision. The August 1999 letter instructed regional offices to follow an interim policy implementing the Morton decision

pending proposed rulemaking, specifically directing them to: determine whether or not claims are ‘‘well-grounded’’ prior to beginning

development; give notice to claimant if material evidence is necessary; and obtain VA medical and service records, but refrain from

private treatment records or scheduling a VA examination on

claims which are not ‘‘well-grounded.’’ On December 2, 1999, VA

proposed a new rule setting forth the circumstances in which it

would obtain relevant records or provide medical examinations

even if the claimant had not submitted a ‘‘well-grounded’’ claim.14

64 Fed. Reg. 67528 (1999) (proposed Dec. 2, 1991). As noted, witnesses at the March 23, 2000, hearing challenged the VA’s authorVerDate 11-MAY-2000 05:54 Jul 25, 2000 Jkt 079006 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\HR781.XXX pfrm04 PsN: HR781
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ity to issue these regulations and criticized the proposed rules for

failing to provide enough assistance to claimants.

Historically, the Secretary’s ‘‘duty to assist’’ has been interpreted

in varying fashions, but the goal is and has been to assist veterans

in developing claims and receiving benefits for which they are eligible. As questions abound over the proper role of veterans and the

VA in claim development, the Committee finds that it is necessary

to clarify claimants’ and the VA’s duties with respect to obtaining

evidence in support of claims for veterans benefits.

SECTION-BY-SECTION ANALYSIS

Section 1 would provide that this Act may be cited as the ‘‘Veterans Claims Assistance Act of 2000’’.

Section 2 would amend chapter 51 of title 38, United States

Code, to add a new section at the beginning of the chapter. The

new section would define the term ‘‘claimant’’ as that term is used

in chapter 51. The term ‘‘claimant’’ would be defined to mean ‘‘any

individual applying for, or submitting a claim for, any benefit

under the laws administered by the Secretary’’. The purpose of defining this term is to ensure that the Secretary will provide applications and assistance to persons whose status as a veteran is not

yet determined. Similarly, the Secretary would be obligated to respond to applications by persons who claim eligibility for or entitlement to a VA benefit by reason of their relationship to a veteran.

Section 3 would substantially revise sections 5102 and 5103 of

title 38, United States Code.

As revised, section 5102 would contain almost all of existing sections 5102 and 5103. Subsection (a) of the proposed section 5102(a)

is identical to existing section 5102. Subsections (b), (c), and (d)

are, with one exception, identical to existing subsections (a) and (b)

of existing section 5103. Proposed section 5102(b) restates the Secretary’s obligation to send notices to the claimant and the claimant’s representative, and to advise the claimant and the claimant’s

representative as to information the claimant must submit to complete the application. The Secretary would also be required to notify the claimant (and the claimant’s representative) of any additional information and medical and lay evidence necessary to substantiate the claim. It is the Committee’s understanding that the

Secretary currently undertakes to provide this notification to a

claimant, and that codification of this requirement should result in

a more uniform practice of notifying a claimant of what evidence

he or she must provide to the Department. For example, the Committee expects that information and evidence under the claimant’s

control such as birth and marriage evidence, school attendance and

income information should ordinarily be provided by the claimant.

Information and evidence in the control of governmental entities

and medical providers should ordinarily be obtained directly by the

Secretary.

Proposed subsection (a) of the new section 5103 is a revision of

language currently found in section 5107(a) of title 38, United

States Code, which requires the Secretary to assist claimants who

have filed a ‘‘well-grounded’’ claim. As revised, the Secretary’s duty

to assist claimants would not be contingent on the claimant filing

a claim that is ‘‘well-grounded.’’ That is, the Secretary would be obligated to assist a claimant in obtaining evidence that is necessary

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to establish eligibility for the benefit being sought. This language

recognizes the Secretary’s authority to establish differing evidentiary requirements for the various benefits administered by the

Department. It also recognizes that certain claims, including those

that on their face seek benefits for ineligible claimants (such as a

veteran who seeks pension benefits but lacks wartime service), or

claims which have been previously decided on the same evidence

can be decided without providing any assistance or obtaining any

additional evidence, and authorizes the Secretary to decide those

claims without providing any assistance under this subsection.

Proposed subsection (b) of the new section 5103 clarifies the Secretary’s obligation to assist a claimant in obtaining evidence that

is relevant to a particular claim. The requirement in section 5107

that the claimant has the burden of proving entitlement to benefits

would not be changed by this language. In using the term ‘‘reasonable efforts’’ to describe the Secretary’s obligation to assist in obtaining evidence, the Committee expects the Department to use a

practical approach to assisting a claimant in obtaining evidence.

That is, if the claimant has adequately identified the source of the

evidence and has given whatever permission is required for the

custodian to provide such evidence, the Committee expects the Secretary to make repeated, but not necessarily exhaustive, efforts to

obtain the evidence. In this regard, the Committee notes that one

effort to obtain evidence would be clearly inadequate and that four

efforts, except in an unusual case, would be exhaustive. Subsection

(b) would also require the Secretary to provide notice to the claimant if the effort to obtain evidence is unsuccessful and briefly explain the Secretary’s efforts to obtain such evidence, describe any

further actions to be taken by the Secretary, and allow the claimant a reasonable opportunity to obtain the evidence before the

claim is decided.

Proposed subsection (c) of section 5103 would provide special

rules for obtaining evidence in disability compensation claims. For

this type of claim, the Secretary would be obligated to obtain existing service medical records, records of treatment or examination at

Department health-care facilities, and relevant records in the possession of other Federal agencies if relevant to the veteran’s claim.

The limitation of ‘‘reasonableness’’ would not apply to the Secretary’s obligation to obtain these types of records if they exist and

the claimant has furnished sufficient information to locate such

records.

Proposed subsection (d) would require the Secretary to provide a

medical examination or obtain a medical opinion if the Secretary

has evidence establishing that (1) the claimant has (A) a current

disability, (B) current symptoms of a disease (such as hepatitis C

or post-traumatic arthritis) which may not be characterized by

symptoms for extended periods of time, or (C) persistent or recurrent symptoms of disability following discharge from service, and

2) there was an in-service event (or series of events) which could

have caused or aggravated the current disability or symptoms, but

3) the evidence is insufficient to establish service-connection. It is

the Committee’s understanding that the Department requests and

obtains in appropriate cases, as part of the report of a medical examination, the examiner’s opinion as to whether there is a ‘‘nexus’’

or linkage between the current disability or symptoms and some inVerDate 11-MAY-2000 05:54 Jul 25, 2000 Jkt 079006 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\HR781.XXX pfrm04 PsN: HR781
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service event or events. This section is intended to encourage that

practice. However, this provision would not require VA to provide

an examination where the evidence of record establishes service

connection on the basis of applicable presumptions or other laws.

The Committee expects the Secretary to continue the current practice of obtaining a medical examination, if needed, to establish the

rating to be assigned to a service-connected disability.

Proposed subsection (e) would require the Secretary to prescribe

regulations (1) specifying the evidence needed to establish a claimant’s eligibility for a benefit, and (2) determining what records or

evidence are relevant to a claim. The Committee notes that this

subsection would not require the Secretary to prescribe new regulations except to the extent that existing regulations are incomplete,

impractical, or inconsistent with the requirements of this Act.

Proposed subsection (f) of section 5103 would specify that nothing

in this legislation would affect the requirement in current section

5108 that the Secretary reopen a claim and review the former disposition of the claim only if new and material evidence is presented

by the claimant or is secured from a source which previously was

unable to produce such evidence.

Proposed subsection (g) of section 5103 would clarify that nothing

in this revised section should be construed as limiting the Secretary’s authority to provide assistance to claimants. The Committee’s intent is to overrule that portion of the decision in Morton

that found an implied limitation on VA’s authority to provide assistance to claimants who had not submitted ‘‘well-grounded’’

claims.

Proposed section 3(b) of the bill would recodify the language

presently found at section 5103(c) as a new section 5126 of title 38,

United States Code. Although there is no evidence that VA has

ever denied a benefit to a person because that person lacked a

mailing address, the Committee is retaining this language because

of concern that a repeal of it might lead some future VA official to

propose such a policy.

Section 4 would revise section 5107 of title 38, United States

Code, to eliminate the requirement that a veteran must submit a

‘‘well-grounded’’ claim. In general, the proposed revision to section

5103 discussed above sets out the authority for the Secretary to

provide assistance to a claimant. Thus, the extent to which the Secretary conducts a separate threshold examination of the evidence

provided in support of a claim is now addressed in that section.

The revised section 5107 restates without any substantive change

the requirements in existing law that the claimant still has the

burden of proving entitlement to benefits, and that the Secretary

must provide the benefit of the doubt to the claimant when there

is an approximate balance of positive and negative evidence regarding any material issue.

Section 5 would add a new sentence to section 5106 of title 38,

United States Code, to provide that Federal departments or agencies shall furnish the Department of Veterans Affairs with records

pertinent to a benefits application without charge.

Section 6 provides that in general, this Act would apply to claims

filed after the date of enactment or which have not been finally decided as of that date. Subsection (b) would establish a special rule

providing retroactive relief to claims which were finally denied or

12

which were dismissed as not ‘‘well-grounded’’ beginning on July 14,

1999 (the effective date of the Morton decision). In such cases, the

Secretary could order the claim to be readjudicated upon the request of the claimant or on the Secretary’s own motion. Subsection

(b)(3) would provide that a motion to readjudicate the claim would

have to be made within two years from the date of enactment of

this Act, while subsection (b)(4) would relieve the Secretary of any

obligation to locate and readjudicate claims which might be affected by the change in law described in this subsection.

OVERSIGHT FINDINGS

No oversight findings have been submitted to the Committee by

the Committee on Government Reform.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The following letter was received from the Congressional Budget

Office concerning the cost of the reported bill:

U.S. CONGRESS,

CONGRESSIONAL BUDGET OFFICE,

Washington, DC, July 21, 2000.

Hon. BOB STUMP,

Chairman, Committee on Veterans’ Affairs,

House of Representatives, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4864, the Veterans

Claims Assistance Act of 2000.

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

to provide them. The CBO staff contact is Evan Christman.

Sincerely,

DAN L. CRIPPEN, Director.

Enclosure.

H.R. 4864—Veterans Claims Assistance Act of 2000

Summary: H.R. 4864 would require the Department of Veterans

Affairs (VA) to provide assistance to veterans who file claims for

VA benefits. CBO estimates that implementing the bill would cost

$4 million in 2001 and $7 million to $8 million annually thereafter,

assuming appropriation of the necessary funds. Because the bill

would not affect direct spending or receipts, pay-as-you-go procedures would not apply. H.R. 4864 contains no intergovernmental or

private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA) and would not affect the budgets of state, local,

or tribal governments.

Estimated cost to the Federal Government: The estimated budgetary impact of the bill is shown in the following table. The costs

of this legislation fall within budget function 700 (veterans benefits

and services).

Basis of estimate: H.R. 4864 would require VA to provide more

assistance than it does under current law to veterans who file

claims for benefits. The bill would require VA to pursue any

records the Secretary identifies as necessary to establish a claim,

and it would require VA to draft regulations that specify what information is necessary for a claim. H.R. 4864 would direct VA to

13

inform veterans of any information the VA needs to adjudicate an

incomplete claim, pursue information the veteran authorizes or requests the VA to obtain, and inform the veteran when the department cannot locate information pertinent to a claim.

If relevant for claims to disability compensation, VA would be required to obtain pertinent records, including a veteran’s medical

record from military service, his or her service record, any records

of treatment provided by the VA, and any other relevant materials

available from other federal agencies. The bill also would require

VA to provide medical exams to veterans who need them to substantiate their claims. Also, the bill would allow any claimant who

had a claim denied since July 14, 1999, to resubmit it if the claim

was denied because it lacked sufficient evidence.

By fiscal year, in millions of dollars—

2000 2001 2002 2003 2004 2005

SPENDING SUBJECT TO APPROPRIATION

Spending under current law for VA’s general operating expenses:

Estimated authorization level 1 ....................................................... 941 941 941 941 941 941

Estimated outlays ............................................................................ 925 941 941 941 941 941

Proposed changes:

Estimated authorization level ......................................................... 0 4 7 8 8 8

Estimated outlays ............................................................................ 0 4 7 7 8 8

Spending under H.R. 4864 for VA’s general operating expenses:

Estimated authorization level 1 ....................................................... 941 945 948 949 949 949

Estimated outlays ............................................................................ 925 945 948 948 949 949

1 The 2000 level is the amount appropriated for that year.

Note.—This table assumes that funding under current law will remain at the level appropriated for 2000 without adjustment for inflation.

If funding over the 2001–2005 period is adjusted for inflation, the base amounts would increase by about $35 million a year, but the cost of

the proposed changes would remain as shown under ‘‘Proposed Changes.’’

CBO expects that, in order to carry out its responsibilities under

H.R. 4864, VA would have to hire additional claims adjudicators.

Based on information from the VA, CBO assumes that 110 additional claims adjudicators would be hired at an estimated cost of

$3 million in salary and benefits in 2001 and about $7 million annually thereafter. CBO estimates that training would cost about $1

million a year and that one-time costs associated with expanding

the claims processing staff would be about $700,000 in 2001. The

cost of providing medical exams is covered under current law. CBO

does not expect a significant increase in benefit payments as a result of this bill.

Pay-as-you-go considerations: None.

Intergovernmental and private-sector impact: H.R. 4864 contains

no intergovernmental or private-sector mandates as defined in

UMRA and would not affect the budgets of state, local, or tribal

governments.

Previous CBO estimate: On February 23, 2000, CBO transmitted

a cost estimate for H.R. 3193, the Duty to Assist Veterans Act of

1999. That bill and H.R. 4864 are similar, but not identical. The

estimated costs are the same, however, because CBO believes that

VA would implement them substantially the same way.

Estimate prepared by: Federal costs: Evan Christman; impact on

State, local, and tribal governments: Susan Seig Tompkins; impact

on the private sector: Rachel Schmidt.

Estimate approved by: Robert A. Sunshine, Assistant Director for

Budget Analysis.

14

INFLATIONARY IMPACT STATEMENT

The enactment of the reported bill would have no inflationary

impact.

APPLICABILITY TO LEGISLATIVE BRANCH

The reported bill would not be applicable to the legislative

branch under the Congressional Accountability Act, Public Law

104–1, because the bill would only affect Department of Veterans

Affairs programs and benefits recipients.

STATEMENT OF FEDERAL MANDATES

The reported bill would not establish a federal mandate under

the Unfunded Mandates Reform Act, Public Law 104–4.

STATEMENT OF CONSTITUTIONAL AUTHORITY

Pursuant to Article I, section 8 of the United States Constitution,

the reported bill is authorized by Congress’ power to ‘‘provide for

the common Defense and general Welfare of the United States.’’

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

In compliance with clause 3(e) of rule XIII of the Rules of the

House of Representatives, changes in existing law made by the bill,

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic,

existing law in which no change is proposed is shown in roman):

TITLE 38, UNITED STATES CODE

* * * * * * *

PART IV—GENERAL ADMINISTRATIVE

PROVISIONS

* * * * * * *

CHAPTER 51—CLAIMS, EFFECTIVE DATES, AND

PAYMENTS

SUBCHAPTER I—CLAIMS

Sec.

5100. Definition of ‘‘claimant’’.

5101. Claims and forms.

ø5102. Application forms furnished upon request.

ø5103. Incomplete applications.¿

5102. Applications: forms furnished upon request; notice to claimants of incomplete applications.

5103. Applications: duty to assist claimants.

* * * * * * *

5126. Benefits not to be denied based on lack of mailing address.

* * * * * * *

SUBCHAPTER I—CLAIMS

* * * * * * *

15

§ 5100. Definition of ‘‘claimant’’

For purposes of this chapter, the term ‘‘claimant’’ means any individual applying for, or submitting a claim for, any benefit under the

laws administered by the Secretary.

* * * * * * *

ø§ 5102. Application forms furnished upon request

øUpon request made in person or in writing by any person claiming or applying for benefits under the laws administered by the

Secretary, the Secretary shall furnish such person, free of all expense, all such printed instructions and forms as may be necessary

in establishing such claim.

ø§ 5103. Incomplete applications

ø(a) If a claimant’s application for benefits under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant of the evidence necessary to complete the application. If such evidence is not received within one year from the date

of such notification, no benefits may be paid or furnished by reason

of such application.

ø(b) This section shall not apply to any application or claim for

Government life insurance benefits.

ø(c) Benefits under laws administered by the Secretary may not

be denied an applicant on the basis that the applicant does not

have a mailing address.¿

§ 5102. Applications: forms furnished upon request; notice to

claimants of incomplete applications

(a) FURNISHING FORMS.—Upon request made in person or in writing by any person claiming or applying for a benefit under the laws

administered by the Secretary, the Secretary shall furnish such person, free of all expense, all such printed instructions and forms as

may be necessary in establishing such claim.

(b) INCOMPLETE APPLICATIONS.—If a claimant’s application for a

benefit under the laws administered by the Secretary is incomplete,

the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application. The Secretary shall notify each claimant of any additional information and medical and lay evidence necessary to substantiate

the claim. As part of such notice, the Secretary shall indicate which

portion of such evidence, if any, is to be provided by the claimant

and which portion of such evidence, if any, the Secretary will attempt to obtain on behalf of the claimant.

(c) TIME LIMITATION.—In the case of evidence that the claimant

is notified is to be provided by the claimant, if such evidence is not

received by the Secretary within one year from the date of such notification, no benefits may be paid or furnished by reason of such application.

(d) INAPPLICABILITY TO CERTAIN BENEFITS.—This section shall

not apply to any application or claim for Government life insurance

benefits.

16

§ 5103. Applications: Duty to assist claimants

(a) DUTY TO ASSIST.—The Secretary shall make reasonable efforts

to assist in obtaining evidence necessary to establish a claimant’s

eligibility for a benefit under a law administered by the Secretary.

However, the Secretary may decide a claim without providing assistance under this subsection when no reasonable possibility exists

that such assistance will aid in the establishment of eligibility for

the benefit sought.

(b) ASSISTANCE IN OBTAINING RECORDS.—(1) As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records that the claimant adequately identifies to the Secretary and authorizes the Secretary to

obtain.

(2) Whenever the Secretary, after making such reasonable efforts,

is unable to obtain all of the records sought, the Secretary shall inform the claimant that the Secretary is unable to obtain such

records. Such a notice shall—

(A) specifically identify the records the Secretary is unable to

obtain;

(B) briefly explain the efforts that the Secretary made to obtain those records;

(C) describe any further actions to be taken by the Secretary

with respect to the claim; and

(D) request the claimant, if the claimant intends to attempt

to obtain such records independently, to so notify the Secretary

within a time period to be specified in the notice.

(c) OBTAINING RECORDS FOR COMPENSATION CLAIMS.—In the case

of a claim by a veteran for disability compensation, the assistance

provided by the Secretary under subsection (a) shall include obtaining the following records if relevant to the veteran’s claim:

(1) The claimant’s existing service medical records and, if the

claimant has furnished information sufficient to locate such

records, other relevant service records.

(2) Existing records of relevant medical treatment or examination of the veteran at Department health-care facilities or at

the expense of the Department, if the claimant has furnished information sufficient to locate such records.

(3) Information as described in section 5106 of this title.

(d) MEDICAL EXAMINATIONS FOR COMPENSATION CLAIMS.—In the

case of a claim by a veteran for disability compensation, the assistance provided by the Secretary under subsection (a) shall include

providing a medical examination, or obtaining a medical opinion,

when the evidence of record before the Secretary—

(1) establishes that—

(A) the claimant has—

(i) a current disability;

(ii) current symptoms of a disease that may not be

characterized by symptoms for extended periods of

time; or

(iii) persistent or recurrent symptoms of disability

following discharge or release from active military,

naval, or air service; and

(B) there was an event, injury, or disease (or combination

of events, injuries, or diseases) during the claimant’s active

17

military, naval, or air service capable of causing or aggravating the claimant’s current disability or symptoms, but

(2) is insufficient to establish service-connection of the current

disability or symptoms.

(e) REGULATIONS.—The Secretary shall prescribe regulations to

carry out this section. Such regulations shall include provisions

for—

(1) specifying the evidence necessary under subsection (a) to

establish a claimant’s eligibility for a benefit under a law administered by the Secretary; and

(2) determining under subsections (b) and (c) what records

are relevant to a claim.

(f) RULE WITH RESPECT TO DISALLOWED CLAIMS.—Nothing in

this section shall be construed to require the Secretary to reopen a

claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this

title.

(g) OTHER ASSISTANCE NOT PRECLUDED.—Nothing in this section

shall be construed as precluding the Secretary from providing such

other assistance to a claimant as the Secretary considers appropriate.

* * * * * * *

§ 5106. Furnishing of information by other agencies

The head of any Federal department or agency shall provide such

information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or

verifying other information with respect thereto. No charge may be

imposed by the head of any such department or agency for providing such information.

ø§ 5107. Burden of proof; benefit of the doubt

ø(a) Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim

for benefits under a law administered by the Secretary shall have

the burden of submitting evidence sufficient to justify a belief by

a fair and impartial individual that the claim is well grounded. The

Secretary shall assist such a claimant in developing the facts pertinent to the claim. Such assistance shall include requesting information as described in section 5106 of this title.

ø(b) When, after consideration of all evidence and material of

record in a case before the Department with respect to benefits

under laws administered by the Secretary, there is an approximate

balance of positive and negative evidence regarding the merits of

an issue material to the determination of the matter, the benefit

of the doubt in resolving each such issue shall be given to the

claimant. Nothing in this subsection shall be construed as shifting

from the claimant to the Secretary the burden specified in subsection (a) of this section.¿

§ 5107. Burden of proof; benefit of the doubt

(a) BURDEN OF PROOF.—Except when otherwise provided by this

title or by the Secretary in accordance with the provisions of this

18

title, a claimant shall have the burden of proving entitlement to

benefits.

(b) BENEFIT OF THE DOUBT.—The Secretary shall consider all evidence and material of record in a case before the Department with

respect to benefits under laws administered by the Secretary and

shall give the claimant the benefit of the doubt when there is an approximate balance of positive and negative evidence regarding any

issue material to the determination of the matter.

* * * * * * *

§ 5126. Benefits not to be denied based on lack of mailing address

Benefits under laws administered by the Secretary may not be denied a claimant on the basis that the claimant does not have a

mailing address.

* * * * * * *

Æ