II 

115TH CONGRESS 

1ST SESSION S. 1024 

To amend title 38, United States Code, to reform the rights and processes 

relating to appeals of decisions regarding claims for benefits under the 

laws administered by the Secretary of Veterans Affairs, and for other 

purposes. 

IN THE SENATE OF THE UNITED STATES 

MAY 3, 2017 

Mr. ISAKSON (for himself, Mr. BLUMENTHAL, Mr. TESTER, Mr. DAINES, Ms. 

HASSAN, Mr. UDALL, Mr. KING, Ms. BALDWIN, and Mr. KAINE) introduced the following bill; which was read twice and referred to the Committee on Veterans’ Affairs 

A BILL 

To amend title 38, United States Code, to reform the rights 

and processes relating to appeals of decisions regarding 

claims for benefits under the laws administered by the 

Secretary of Veterans Affairs, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Veterans Appeals Im5 provement and Modernization Act of 2017’’. 


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1 SEC. 2. REFORM OF RIGHTS AND PROCESSES RELATING TO 

2 APPEALS OF DECISIONS REGARDING CLAIMS 

3 FOR BENEFITS UNDER LAWS ADMINISTERED 

4 BY SECRETARY OF VETERANS AFFAIRS. 

5 (a) DEFINITIONS.—Section 101 of title 38, United 

6 States Code, is amended by adding at the end the fol7 lowing new paragraphs: 

8 ‘‘(34) The term ‘agency of original jurisdiction’ 

9 means the activity which entered the original deter10 mination with regard to a claim for benefits under 

11 laws administered by the Secretary. 

12 ‘‘(35) The term ‘relevant evidence’ means evi13 dence that tends to prove or disprove a matter in 

14 issue. 

15 ‘‘(36) The term ‘supplemental claim’ means a 

16 claim for benefits under laws administered by the 

17 Secretary filed by a claimant who had previously 

18 filed a claim for the same or similar benefits on the 

19 same or similar basis.’’. 

20 (b) NOTICE REGARDING CLAIMS.—Section 5103(a) 

21 of such title is amended— 

22 (1) in paragraph (1), in the first sentence, by 

23 striking ‘‘The’’ and inserting ‘‘Except as provided in 

24 paragraph (3), the’’; 

25 (2) in paragraph (2)(B)(i) by striking ‘‘, a 

26 claim for reopening a prior decision on a claim, or 


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1 a claim for an increase in benefits;’’ and inserting 

2 ‘‘or a supplemental claim;’’; and 

3 (3) by adding at the end the following new 

4 paragraph: 

5 ‘‘(3) The requirement to provide notice under para6 graph (1) shall not apply with respect to a supplemental 

7 claim that is filed within the timeframe set forth in sub8 paragraphs (B) and (D) of section 5110(a)(2) of this 

9 title.’’. 

10 (c) MODIFICATION OF RULE REGARDING DIS11 ALLOWED CLAIMS.—Section 5103A(f) of such title is 

12 amended— 

13 (1) by striking ‘‘reopen’’ and inserting ‘‘readju14 dicate’’; and 

15 (2) by striking ‘‘material’’ and inserting ‘‘rel16 evant’’. 

17 (d) MODIFICATION OF DUTY TO ASSIST CLAIM18 ANTS.—Section 5103A of such title is amended— 

19 (1) by redesignating subsections (e) through (g) 

20 as subsections (g) through (i), respectively; and 

21 (2) by inserting after subsection (d) the fol22 lowing new subsections: 

23 ‘‘(e) APPLICABILITY OF DUTY TO ASSIST.—(1) The 

24 Secretary’s duty to assist under this section shall apply 

25 only to a claim, or supplemental claim, for a benefit under 


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1 a law administered by the Secretary until the time that 

2 a claimant is provided notice of the agency of original ju3 risdiction’s decision with respect to such claim, or supple4 mental claim, under section 5104 of this title. 

5 ‘‘(2) The Secretary’s duty to assist under this section 

6 shall not apply to higher-level review by the agency of 

7 original jurisdiction, pursuant to section 5104B of this 

8 title, or to review on appeal by the Board of Veterans’ 

9 Appeals. 

10 ‘‘(f) CORRECTION OF DUTY TO ASSIST ERRORS.— 

11 (1) If, during review of the agency of original jurisdiction 

12 decision under section 5104B of this title, the higher-level 

13 adjudicator identifies or learns of an error on the part of 

14 the agency of original jurisdiction to satisfy its duties 

15 under this section, and that error occurred prior to the 

16 agency of original jurisdiction decision being reviewed, un17 less the claim can be granted in full, the higher-level adju18 dicator shall return the claim for correction of such error 

19 and readjudication. 

20 ‘‘(2)(A) If the Board of Veterans’ Appeals, during re21 view on appeal of an agency of original jurisdiction deci22 sion, identifies or learns of an error on the part of the 

23 agency of original jurisdiction to satisfy its duties under 

24 this section, and that error occurred prior to the agency 

25 of original jurisdiction decision on appeal, unless the claim 


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1 can be granted in full, the Board shall remand the claim 

2 to the agency of original jurisdiction for correction of such 

3 error and readjudication. 

4 ‘‘(B) Remand for correction of such error may in5 clude directing the agency of original jurisdiction to obtain 

6 an advisory medical opinion under section 5109 of this 

7 title. 

8 ‘‘(3) Nothing in this subsection shall be construed to 

9 imply that the Secretary, during the consideration of a 

10 claim, does not have a duty to correct an error described 

11 in paragraph (1) or (2) that was erroneously not identified 

12 during higher-level review or during review on appeal with 

13 respect to the claim.’’. 

14 (e) DECISIONS AND NOTICES OF DECISIONS.—Sub15 section (b) of section 5104 of such title is amended to read 

16 as follows: 

17 ‘‘(b) Each notice provided under subsection (a) shall 

18 also include all of the following: 

19 ‘‘(1) Identification of the issues adjudicated. 

20 ‘‘(2) A summary of the evidence considered by 

21 the Secretary. 

22 ‘‘(3) A summary of the applicable laws and reg23 ulations. 

24 ‘‘(4) Identification of findings favorable to the 

25 claimant. 


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1 ‘‘(5) In the case of a denial, identification of 

2 elements not satisfied leading to the denial. 

3 ‘‘(6) An explanation of how to obtain or access 

4 evidence used in making the decision. 

5 ‘‘(7) If applicable, identification of the criteria 

6 that must be satisfied to grant service connection or 

7 the next higher level of compensation.’’. 

8 (f) BINDING NATURE OF FAVORABLE FINDINGS.— 

9 (1) IN GENERAL.—Chapter 51 of such title is 

10 amended by inserting after section 5104 the fol11 lowing new section: 

12 ‘‘§ 5104A. Binding nature of favorable findings 

13 ‘‘Any finding favorable to the claimant as described 

14 in section 5104(b)(4) of this title shall be binding on all 

15 subsequent adjudicators within the Department, unless 

16 clear and convincing evidence is shown to the contrary to 

17 rebut such favorable finding.’’. 

18 (2) CLERICAL AMENDMENT.—The table of sec19 tions at the beginning of chapter 51 of such title is 

20 amended by inserting after the item relating to sec21 tion 5104 the following new item: 

‘‘5104A. Binding nature of favorable findings.’’. 

22 (g) HIGHER-LEVEL REVIEW BY AGENCY OF ORIGI23 NAL JURISDICTION.— 

24 (1) IN GENERAL.—Chapter 51 of such title, as 

25 amended by subsection (f), is further amended by inVerDate Sep 11 2014 03:36 May 09, 2017 Jkt 069200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1024.IS S1024

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1 serting after section 5104A, as added by such sub2 section, the following new section: 

3 ‘‘§ 5104B. Higher-level review by the agency of origi4 nal jurisdiction 

5 ‘‘(a) IN GENERAL.—(1) A claimant may request a 

6 review of the decision of the agency of original jurisdiction 

7 by a higher-level adjudicator within the agency of original 

8 jurisdiction. 

9 ‘‘(2) The Secretary shall approve each request for re10 view under paragraph (1). 

11 ‘‘(b) TIME AND MANNER OF REQUEST.—(1) A re12 quest for higher-level review by the agency of original ju13 risdiction shall be— 

14 ‘‘(A) in writing in such form as the Secretary 

15 may prescribe; and 

16 ‘‘(B) made within one year of the notice of the 

17 agency of original jurisdiction’s decision. 

18 ‘‘(2) Such request may specifically indicate whether 

19 such review is requested by a higher-level adjudicator at 

20 the same office within the agency of original jurisdiction 

21 or by an adjudicator at a different office of the agency 

22 of original jurisdiction. The Secretary shall not deny such 

23 request for review by an adjudicator at a different office 

24 of the agency of original jurisdiction without good cause. 


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1 ‘‘(c) DECISION.—Notice of a higher-level review deci2 sion under this section shall be provided in writing and 

3 shall include a general statement— 

4 ‘‘(1) reflecting whether evidence was not consid5 ered pursuant to subsection (d); and 

6 ‘‘(2) noting the options available to the claim7 ant to have the evidence described in paragraph (1), 

8 if any, considered by the Department. 

9 ‘‘(d) EVIDENTIARY RECORD FOR REVIEW.—The evi10 dentiary record before the higher-level adjudicator shall be 

11 limited to the evidence of record in the agency of original 

12 jurisdiction decision being reviewed. 

13 ‘‘(e) DE NOVO REVIEW.—A review of the decision of 

14 the agency of original jurisdiction by a higher-level adjudi15 cator within the agency of original jurisdiction shall be de 

16 novo.’’. 

17 (2) CLERICAL AMENDMENT.—The table of sec18 tions at the beginning of chapter 51 of such title, as 

19 amended by subsection (f), is further amended by in20 serting after the item relating to section 5104A, as 

21 added by such subsection, the following new item: 

‘‘5104B. Higher-level review by the agency of original jurisdiction.’’. 

22 (h) OPTIONS FOLLOWING DECISION BY AGENCY OF

23 ORIGINAL JURISDICTION.— 

24 (1) IN GENERAL.—Chapter 51 of such title, as 

25 amended by subsection (g), is further amended by 


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1 inserting after section 5104B, as added by such sub2 section, the following new section: 

3 ‘‘§ 5104C. Options following decision by agency of 

4 original jurisdiction 

5 ‘‘(a) WITHIN ONE YEAR OF DECISION.—(1) Subject 

6 to paragraph (2), in any case in which the Secretary ren7 ders a decision on a claim, the claimant may take any of 

8 the following actions on or before the date that is one year 

9 after the date on which the agency of original jurisdiction 

10 issues a decision with respect to that claim: 

11 ‘‘(A) File a request for higher-level review 

12 under section 5104B of this title. 

13 ‘‘(B) File a supplemental claim under section 

14 5108 of this title. 

15 ‘‘(C) File a notice of disagreement under sec16 tion 7105 of this title. 

17 ‘‘(2)(A) Once a claimant takes an action set forth in 

18 paragraph (1), the claimant may not take another action 

19 set forth in that paragraph with respect to such claim 

20 until— 

21 ‘‘(i) the higher-level review, supplemental claim, 

22 or notice of disagreement is adjudicated; or 

23 ‘‘(ii) the request for higher-level review, supple24 mental claim, or notice of disagreement is with25 drawn. 


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1 ‘‘(B) Nothing in this subsection shall prohibit a 

2 claimant from taking any of the actions set forth in para3 graph (1) in succession with respect to a claim. 

4 ‘‘(C) Nothing in this subsection shall prohibit a 

5 claimant from taking different actions set forth in para6 graph (1) with respect to different claims. 

7 ‘‘(D) The Secretary may, as the Secretary considers 

8 appropriate, develop and implement a policy for claimants 

9 who— 

10 ‘‘(i) take an action under paragraph (1); 

11 ‘‘(ii) wish to withdraw the action before the 

12 higher-level review, supplemental claim, or notice of 

13 disagreement is adjudicated; and 

14 ‘‘(iii) in lieu of such action take a different ac15 tion under paragraph (1). 

16 ‘‘(b) MORE THAN ONE YEAR AFTER DECISION.—In 

17 any case in which the Secretary renders a decision on a 

18 claim and more than one year has passed since the date 

19 on which the agency of original jurisdiction issues a deci20 sion with respect to that claim, the claimant may file a 

21 supplemental claim under section 5108 of this title.’’. 

22 (2) CLERICAL AMENDMENT.—The table of sec23 tions at the beginning of chapter 51 of such title, as 

24 amended by subsection (g), is further amended by 


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1 inserting after the item relating to section 5104B, as 

2 added by such subsection, the following new item: 

‘‘5104C. Options following decision by agency of original jurisdiction.’’. 

3 (i) SUPPLEMENTAL CLAIMS.— 

4 (1) IN GENERAL.—Section 5108 of such title is 

5 amended to read as follows: 

6 ‘‘§ 5108. Supplemental claims 

7 ‘‘If new and relevant evidence is presented or secured 

8 with respect to a supplemental claim, the Secretary shall 

9 readjudicate the claim taking into consideration any evi10 dence added to the record prior to the former disposition 

11 of the claim.’’. 

12 (2) CLERICAL AMENDMENT.—The table of sec13 tions at the beginning of chapter 51 of such title is 

14 amended by striking the item relating to section 

15 5108 and inserting the following new item: 

‘‘5108. Supplemental claims.’’. 

16 (j) REMAND TO OBTAIN ADVISORY MEDICAL OPIN17 ION.—Section 5109 of such title is amended by adding 

18 at the end the following new subsection: 

19 ‘‘(d)(1) The Board of Veterans’ Appeals shall remand 

20 a claim to direct the agency of original jurisdiction to ob21 tain an advisory medical opinion from an independent 

22 medical expert under this section if the Board finds that 

23 the Veterans Benefits Administration should have exer24 cised its discretion to obtain such an opinion. 


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1 ‘‘(2) The Board’s remand instructions shall include 

2 the questions to be posed to the independent medical ex3 pert providing the advisory medical opinion.’’. 

4 (k) RESTATEMENT OF REQUIREMENT FOR EXPE5 DITED TREATMENT OF RETURNED AND REMANDED

6 CLAIMS.— 

7 (1) IN GENERAL.—Section 5109B of such title 

8 is amended to read as follows: 

9 ‘‘§ 5109B. Expedited treatment of returned and re10 manded claims 

11 ‘‘The Secretary shall take such actions as may be 

12 necessary to provide for the expeditious treatment by the 

13 Veterans Benefits Administration of any claim that is re14 turned by a higher-level adjudicator under section 5104B 

15 of this title or remanded by the Board of Veterans’ Ap16 peals.’’. 

17 (2) CLERICAL AMENDMENT.—The table of sec18 tions at the beginning of chapter 51 of such title is 

19 amended by striking the item relating to section 

20 5109B and inserting the following new item: 

‘‘5109B. Expedited treatment of returned and remanded claims.’’. 

21 (l) EFFECTIVE DATES OF AWARDS.—Section 5110 of 

22 title 38, United States Code, is amended— 

23 (1) by amending subsection (a) to read as fol24 lows: 


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1 ‘‘(a)(1) Unless specifically provided otherwise in this 

2 chapter, the effective date of an award based on an initial 

3 claim, or a supplemental claim, of compensation, depend4 ency and indemnity compensation, or pension, shall be 

5 fixed in accordance with the facts found, but shall not be 

6 earlier than the date of receipt of application therefor. 

7 ‘‘(2) For purposes of determining the effective date 

8 of an award under this section, the date of application 

9 shall be considered the date of the filing of the initial ap10 plication for a benefit if the claim is continuously pursued 

11 by filing any of the following, either alone or in succession: 

12 ‘‘(A) A request for higher-level review under 

13 section 5104B of this title on or before the date that 

14 is one year after the date on which the agency of 

15 original jurisdiction issues a decision. 

16 ‘‘(B) A supplemental claim under section 5108 

17 of this title on or before the date that is one year 

18 after the date on which the agency of original juris19 diction issues a decision. 

20 ‘‘(C) A notice of disagreement on or before the 

21 date that is one year after the date on which the 

22 agency of original jurisdiction issues a decision. 

23 ‘‘(D) A supplemental claim under section 5108 

24 of this title on or before the date that is one year 


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1 after the date on which the Board of Veterans’ Ap2 peals issues a decision. 

3 ‘‘(E) A supplemental claim under section 5108 

4 of this title on or before the date that is one year 

5 after the date on which the Court of Appeals for 

6 Veterans Claims issues a decision. 

7 ‘‘(3) Except as otherwise provided in this section, for 

8 supplemental claims received more than one year after the 

9 date on which the agency of original jurisdiction issued 

10 a decision or the Board of Veterans’ Appeals issued a deci11 sion, the effective date shall be fixed in accordance with 

12 the facts found, but shall not be earlier than the date of 

13 receipt of the supplemental claim.’’; and 

14 (2) in subsection (i), in the first sentence— 

15 (A) by striking ‘‘reopened’’ and inserting 

16 ‘‘readjudicated’’; 

17 (B) by striking ‘‘material’’ and inserting 

18 ‘‘relevant’’; and 

19 (C) by striking ‘‘reopening’’ and inserting 

20 ‘‘readjudication’’. 

21 (m) DEFINITION OF AWARD OR INCREASED AWARD

22 FOR PURPOSES OF PROVISIONS RELATING TO COM23 MENCEMENT OF PERIOD OF PAYMENT.—Section 

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1 opened award’’ and inserting ‘‘award or award based on 

2 a supplemental claim’’. 

3 (n) MODIFICATION ON LIMITATION ON FEES ALLOW4 ABLE FOR REPRESENTATION.—Section 5904(c) of such 

5 title is amended, in paragraphs (1) and (2), by striking 

6 ‘‘notice of disagreement is filed’’ both places it appears 

7 and inserting ‘‘claimant is provided notice of the agency 

8 of original jurisdiction’s initial decision under section 5104 

9 of this title’’. 

10 (o) CLARIFICATION OF BOARD OF VETERANS’ AP11 PEALS REFERRAL REQUIREMENTS AFTER ORDER FOR

12 RECONSIDERATION OF DECISIONS.—Section 7103(b)(1) 

13 of title 38, United States Code, is amended by striking 

14 ‘‘heard’’ both places it appears and inserting ‘‘decided’’. 

15 (p) CONFORMING AMENDMENT RELATING TO RE16 ADJUDICATION.—Section 7104(b) of such title is amended 

17 by striking ‘‘reopened’’ and inserting ‘‘readjudicated’’. 

18 (q) MODIFICATION OF PROCEDURES FOR APPEALS

19 TO BOARD OF VETERANS’ APPEALS.— 

20 (1) IN GENERAL.—Section 7105 of title 38, 

21 United States Code, is amended— 

22 (A) in subsection (a), by striking the first 

23 sentence and inserting ‘‘Appellate review shall 

24 be initiated by the filing of a notice of disagree25 ment in the form prescribed by the Secretary.’’; 


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1 (B) by amending subsection (b) to read as 

2 follows: 

3 ‘‘(b)(1)(A) Except in the case of simultaneously con4 tested claims, a notice of disagreement shall be filed within 

5 one year from the date of the mailing of notice of the deci6 sion of the agency of original jurisdiction pursuant to sec7 tion 5104, 5104B, or 5108 of this title. 

8 ‘‘(B) A notice of disagreement postmarked before the 

9 expiration of the one-year period shall be accepted as time10 ly filed. 

11 ‘‘(C) A question as to timeliness or adequacy of the 

12 notice of disagreement shall be decided by the Board. 

13 ‘‘(2)(A) Notices of disagreement shall be in writing, 

14 shall identify the specific determination with which the 

15 claimant disagrees, and may be filed by the claimant, the 

16 claimant’s legal guardian, or such accredited representa17 tive, attorney, or authorized agent as may be selected by 

18 the claimant or legal guardian. 

19 ‘‘(B) Not more than one recognized organization, at20 torney, or agent may be recognized at any one time in 

21 the prosecution of a claim. 

22 ‘‘(C) Notices of disagreement shall be filed with the 

23 Board. 

24 ‘‘(3) The notice of disagreement shall indicate wheth25 er the claimant requests— 


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1 ‘‘(A) a hearing before the Board, which shall 

2 include an opportunity to submit evidence in accord3 ance with section 7113(b) of this title; 

4 ‘‘(B) an opportunity to submit additional evi5 dence without a hearing before the Board, which 

6 shall include an opportunity to submit evidence in 

7 accordance with section 7113(c) of this title; or 

8 ‘‘(C) a review by the Board without a hearing 

9 or the submittal of additional evidence. 

10 ‘‘(4) The Secretary may develop a policy to permit 

11 a claimant to modify the information identified in the no12 tice of disagreement after the notice of disagreement has 

13 been filed under this section pursuant to such require14 ments as the Secretary may prescribe.’’; 

15 (C) by amending subsection (c) to read as 

16 follows: 

17 ‘‘(c) If no notice of disagreement is filed in accord18 ance with this chapter within the prescribed period, the 

19 action or decision of the agency of original jurisdiction 

20 shall become final and the claim shall not thereafter be 

21 readjudicated or allowed, except as may otherwise be pro22 vided by section 5104B or 5108 of this title or such regu23 lations as are consistent with this title.’’; 

24 (D) by striking subsection (d) and insert25 ing the following new subsection (d): 


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1 ‘‘(d) The Board of Veterans’ Appeals may dismiss 

2 any appeal which fails to identify the specific determina3 tion with which the claimant disagrees.’’; 

4 (E) by striking subsection (e); and 

5 (F) in the section heading, by striking 

6 ‘‘notice of disagreement and’’. 

7 (2) CLERICAL AMENDMENT.—The table of sec8 tions at the beginning of chapter 71 of such title is 

9 amended by striking the item relating to section 

10 7105 and inserting the following new item: 

‘‘7105. Filing of appeal.’’. 

11 (r) MODIFICATION OF PROCEDURES AND REQUIRE12 MENTS FOR SIMULTANEOUSLY CONTESTED CLAIMS.— 

13 Subsection (b) of section 7105A of such title is amended 

14 to read as follows: 

15 ‘‘(b)(1) The substance of the notice of disagreement 

16 shall be communicated to the other party or parties in in17 terest and a period of thirty days shall be allowed for filing 

18 a brief or argument in response thereto. 

19 ‘‘(2) Such notice shall be forwarded to the last known 

20 address of record of the parties concerned, and such action 

21 shall constitute sufficient evidence of notice.’’. 

22 (s) REPEAL OF PROCEDURES FOR ADMINISTRATIVE

23 APPEALS.— 

24 (1) IN GENERAL.—Chapter 71 of such title is 

25 amended by striking section 7106. 


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1 (2) CLERICAL AMENDMENT.—The table of sec2 tions at the beginning of chapter 71 of such title is 

3 amended by striking the item relating to section 

4 7106. 

5 (t) MODIFICATIONS RELATING TO APPEALS: DOCK6 ETS; HEARINGS.— 

7 (1) IN GENERAL.—Section 7107 of such title is 

8 amended to read as follows: 

9 ‘‘§ 7107. Appeals: dockets; hearings 

10 ‘‘(a) DOCKETS.—(1) Subject to paragraph (2), the 

11 Board shall maintain at least two separate dockets. 

12 ‘‘(2) The Board may not maintain more than two 

13 separate dockets unless the Board notifies the Committee 

14 on Veterans’ Affairs of the Senate and the Committee on 

15 Veterans’ Affairs of the House of Representatives of any 

16 additional docket, including a justification for maintaining 

17 such additional docket. 

18 ‘‘(3)(A) The Board may assign to each docket main19 tained under paragraph (1) such cases as the Board con20 siders appropriate, except that cases described in clause 

21 (i) of subparagraph (B) may not be assigned to any docket 

22 to which cases described in clause (ii) of such paragraph 

23 are assigned. 

24 ‘‘(B) Cases described in this paragraph are the fol25 lowing: 


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1 ‘‘(i) Cases in which no Board hearing is re2 quested and no additional evidence will be sub3 mitted. 

4 ‘‘(ii) Cases in which a Board hearing is re5 quested in the notice of disagreement. 

6 ‘‘(4) Except as provided in subsection (b), each case 

7 before the Board will be decided in regular order according 

8 to its respective place on the docket to which it is assigned 

9 by the Board. 

10 ‘‘(b) ADVANCEMENT ON THE DOCKET.—(1) A case 

11 on one of the dockets of the Board maintained under sub12 section (a) may, for cause shown, be advanced on motion 

13 for earlier consideration and determination. 

14 ‘‘(2) Any such motion shall set forth succinctly the 

15 grounds upon which the motion is based. 

16 ‘‘(3) Such a motion may be granted only— 

17 ‘‘(A) if the case involves interpretation of law of 

18 general application affecting other claims; 

19 ‘‘(B) if the appellant is seriously ill or is under 

20 severe financial hardship; or 

21 ‘‘(C) for other sufficient cause shown. 

22 ‘‘(c) MANNER AND SCHEDULING OF HEARINGS FOR

23 CASES ON A DOCKET THAT MAY INCLUDE A HEARING.— 

24 (1) For cases on a docket maintained by the Board under 

25 subsection (a) that may include a hearing, in which a 


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1 hearing is requested in the notice of disagreement, the 

2 Board shall notify the appellant whether a Board hearing 

3 will be held— 

4 ‘‘(A) at its principal location; or 

5 ‘‘(B) by picture and voice transmission at a fa6 cility of the Department where the Secretary has 

7 provided suitable facilities and equipment to conduct 

8 such hearings. 

9 ‘‘(2)(A) Upon notification of a Board hearing at the 

10 Board’s principal location as described in subparagraph 

11 (A) of paragraph (1), the appellant may alternatively re12 quest a hearing as described in subparagraph (B) of such 

13 paragraph. If so requested, the Board shall grant such re14 quest. 

15 ‘‘(B) Upon notification of a Board hearing by picture 

16 and voice transmission as described in subparagraph (B) 

17 of paragraph (1), the appellant may alternatively request 

18 a hearing as described in subparagraph (A) of such para19 graph. If so requested, the Board shall grant such request. 

20 ‘‘(d) SCREENING OF CASES.—Nothing in this section 

21 shall be construed to preclude the screening of cases for 

22 purposes of— 

23 ‘‘(1) determining the adequacy of the record for 

24 decisional purposes; or 


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1 ‘‘(2) the development, or attempted develop2 ment, of a record found to be inadequate for 

3 decisional purposes. 

4 ‘‘(e) POLICY ON CHANGING DOCKETS.—The Sec5 retary may develop and implement a policy allowing a 

6 claimant to move the claimant’s case from one docket to 

7 another docket.’’. 

8 (2) REPORT.—Not later than the date that is 

9 90 days before the date set forth in subsection (x), 

10 the Secretary shall submit to the Committee on Vet11 erans’ Affairs of the Senate and the Committee on 

12 Veterans’ Affairs of the House of Representatives a 

13 report setting forth a description of the docket that 

14 will be maintained under section 7107 of title 38, 

15 United States Code, as amended by paragraph (1), 

16 for cases in which no hearing before the Board of 

17 Veterans’ Appeals is requested in the notice of dis18 agreement but the appellant requests, in the notice 

19 of disagreement, an opportunity to submit additional 

20 evidence. 

21 (u) REPEAL OF CERTAIN AUTHORITY FOR INDE22 PENDENT MEDICAL OPINIONS.— 

23 (1) IN GENERAL.—Section 7109 of such title is 

24 repealed. 


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1 (2) CONFORMING AMENDMENT.—Section 

2 5701(b)(1) of such title is amended by striking ‘‘or 

3 7109’’. 

4 (3) CLERICAL AMENDMENT.—The table of sec5 tions at the beginning of chapter 71 of such title is 

6 amended by striking the item relating to section 

7 7109. 

8 (v) CLARIFICATION OF PROCEDURES FOR REVIEW OF

9 DECISIONS ON GROUNDS OF CLEAR AND UNMISTAKABLE

10 ERROR.—Section 7111(e) of such title is amended by 

11 striking ‘‘, without referral to any adjudicative or hearing 

12 official acting on behalf of the Secretary’’. 

13 (w) EVIDENTIARY RECORD BEFORE BOARD OF VET14 ERANS’ APPEALS.— 

15 (1) IN GENERAL.—Chapter 71 of such title is 

16 amended by adding at the end the following new sec17 tion: 

18 ‘‘§ 7113. Evidentiary record before the Board of Vet19 erans’ Appeals 

20 ‘‘(a) CASES WITH NO REQUEST FOR A HEARING OR

21 ADDITIONAL EVIDENCE.—For cases in which a hearing 

22 before the Board of Veterans’ Appeals is not requested 

23 in the notice of disagreement and no request was made 

24 to submit evidence, the evidentiary record before the 

25 Board shall be limited to the evidence of record at the 


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1 time of the decision of the agency of original jurisdiction 

2 on appeal. 

3 ‘‘(b) CASES WITH A REQUEST FOR A HEARING.—(1) 

4 Except as provided in paragraph (2), for cases in which 

5 a hearing is requested in the notice of disagreement, the 

6 evidentiary record before the Board shall be limited to the 

7 evidence of record at the time of the decision of the agency 

8 of original jurisdiction on appeal. 

9 ‘‘(2) The evidentiary record before the Board for 

10 cases described in paragraph (1) shall include each of the 

11 following, which the Board shall consider in the first in12 stance: 

13 ‘‘(A) Evidence submitted by the appellant and 

14 his or her representative, if any, at the Board hear15 ing. 

16 ‘‘(B) Evidence submitted by the appellant and 

17 his or her representative, if any, within 90 days fol18 lowing the Board hearing. 

19 ‘‘(c) CASES WITH NO REQUEST FOR A HEARING AND

20 WITH A REQUEST FOR ADDITIONAL EVIDENCE.—(1) Ex21 cept as provided in paragraph (2), for cases in which a 

22 hearing is not requested in the notice of disagreement but 

23 an opportunity to submit evidence is requested, the evi24 dentiary record before the Board shall be limited to the 


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1 evidence considered by the agency of original jurisdiction 

2 in the decision on appeal. 

3 ‘‘(2) The evidentiary record before the Board for 

4 cases described in paragraph (1) shall include each of the 

5 following, which the Board shall consider in the first in6 stance: 

7 ‘‘(A) Evidence submitted by the appellant and 

8 his or her representative, if any, with the notice of 

9 disagreement. 

10 ‘‘(B) Evidence submitted by the appellant and 

11 his or her representative, if any, within 90 days fol12 lowing receipt of the notice of disagreement.’’. 

13 (2) NOTIFICATION WHEN EVIDENCE NOT CON14 SIDERED.—Section 7104(d) of such title is amend15 ed— 

16 (A) in paragraph (1), by striking ‘‘; and’’ 

17 and inserting a semicolon; 

18 (B) by redesignating paragraph (2) as 

19 paragraph (3); and 

20 (C) by inserting after paragraph (1) the 

21 following new paragraph (2): 

22 ‘‘(2) a general statement— 

23 ‘‘(A) reflecting whether evidence was not 

24 considered in making the decision because the 


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1 evidence was received at a time when not per2 mitted under section 7113 of this title; and 

3 ‘‘(B) noting such options as may be avail4 able for having the evidence considered by the 

5 Department; and’’. 

6 (3) CLERICAL AMENDMENT.—The table of sec7 tions at the beginning of chapter 71 of such title is 

8 amended by inserting after the item relating to sec9 tion 7112 the following new item: 

‘‘7113. Evidentiary record before the Board of Veterans’ Appeals.’’. 

10 (x) APPLICABILITY.— 

11 (1) IN GENERAL.—Except as otherwise pro12 vided in this subsection, the amendments made by 

13 this section shall apply to all claims for which notice 

14 of a decision under section 5104 of title 38, United 

15 States Code, is provided by the Secretary of Vet16 erans Affairs on or after the later of— 

17 (A) the date that is 540 days after the 

18 date of the enactment of this Act; and 

19 (B) the date that is 30 days after the date 

20 on which the Secretary of Veterans Affairs sub21 mits to the appropriate committees of Congress 

22 a certification that the Secretary confirms, 

23 without delegation, that the Department of Vet24 erans Affairs has the resources, personnel, ofVerDate Sep 11 2014 03:36 May 09, 2017 Jkt 069200 PO 00000 Frm 00026 Fmt 6652 Sfmt 6201 E:\BILLS\S1024.IS S1024

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1 fice space, procedures, and information tech2 nology required— 

3 (i) to carry out the new appeals sys4 tem; and 

5 (ii) to timely address both appeals of 

6 decisions on legacy claims and appeals 

7 under the new appeals system. 

8 (2) COLLABORATION.—In determining whether 

9 and when to make a certification under paragraph 

10 (1)(B), the Secretary shall collaborate with, partner 

11 with, and give weight to the advice of veterans serv12 ice organizations and such other stakeholders as the 

13 Secretary considers appropriate. 

14 (3) EARLY APPLICABILITY.—The Secretary 

15 may apply the new appeals system to a claim with 

16 respect to which the claimant— 

17 (A) receives a notice of a decision under 

18 section 5104 of such title after the date of the 

19 enactment of this Act and before the applica20 bility date set forth in paragraph (1); and 

21 (B) elects to subject the claim to the new 

22 appeals system. 

23 (4) PHASED ROLLOUT.—The Secretary may 

24 begin implementation of the new appeals system in 

25 phases, with the first phase of such phased impleVerDate Sep 11 2014 03:36 May 09, 2017 Jkt 069200 PO 00000 Frm 00027 Fmt 6652 Sfmt 6201 E:\BILLS\S1024.IS S1024

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1 mentation beginning on the applicability date set 

2 forth in paragraph (1). 

3 (5) TREATMENT OF LEGACY CLAIMS.—With re4 spect to legacy claims, upon the issuance to a claim5 ant of a statement of the case or supplemental state6 ment of the case occurring on or after the applica7 bility date specified in paragraph (1), a claimant 

8 may elect to participate in the new appeals system. 

9 (6) PUBLICATION OF APPLICABILITY DATE.— 

10 Not later than the date on which the new appeals 

11 system goes into effect (or the first phase of the new 

12 appeals system goes into effect under paragraph (4), 

13 as the case may be), the Secretary shall publish in 

14 the Federal Register such date. 

15 (7) DEFINITIONS.—In this subsection: 

16 (A) APPROPRIATE COMMITTEES OF CON17 GRESS.—The term ‘‘appropriate committees of 

18 Congress’’ means— 

19 (i) the Committee on Veterans’ Af20 fairs and the Committee on Appropriations 

21 of the Senate; and 

22 (ii) the Committee on Veterans’ Af23 fairs and the Committee on Appropriations 

24 of the House of Representatives. 


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1 (B) VETERANS SERVICE ORGANIZATION.— 

2 The term ‘‘veterans service organization’’ 

3 means any organization recognized by the Sec4 retary for the representation of veterans under 

5 section 5902 of title 38, United States Code. 

6 (y) RULE OF CONSTRUCTION.—Nothing in this sec7 tion or any of the amendments made by this section shall 

8 be construed to limit the ability of a claimant to request 

9 a revision of a decision under section 5109A or 7111 of 

10 title 38, United States Code. 

11 SEC. 3. COMPREHENSIVE PLAN FOR PROCESSING OF LEG12 ACY APPEALS AND IMPLEMENTING NEW AP13 PEALS SYSTEM. 

14 (a) PLAN REQUIRED.—Not later than 90 days after 

15 the date of the enactment of this Act, the Secretary of 

16 Veterans Affairs shall submit to the appropriate commit17 tees of Congress and the Comptroller General of the 

18 United States a comprehensive plan for— 

19 (1) the processing of appeals of decisions on 

20 legacy claims that the Secretary considers pending; 

21 (2) implementing the new appeals system; 

22 (3) timely processing, under the new appeals 

23 system, of— 


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1 (A) supplemental claims under section 

2 5108 of title 38, United States Code, as amend3 ed by section 2(i); 

4 (B) requests for higher-level review under 

5 section 5104B of such title, as added by section 

6 2(g); and 

7 (C) appeals on any docket maintained 

8 under section 7107 of such title, as amended by 

9 section 2(t); and 

10 (4) monitoring the implementation of the new 

11 appeals system, including metrics and goals— 

12 (A) to track the progress of the implemen13 tation; 

14 (B) to evaluate the efficiency and effective15 ness of the implementation; and 

16 (C) to identify potential issues relating to 

17 the implementation. 

18 (b) ELEMENTS.—The plan required by subsection (a) 

19 shall include, at a minimum, the following: 

20 (1) Delineation of the total resource require21 ments of the Veterans Benefits Administration and 

22 the Board of Veterans’ Appeals, disaggregated by 

23 resources required to implement and administer the 

24 new appeals system and resources required to ad25 dress the appeals of decisions on legacy claims. 


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1 (2) Delineation of the personnel requirements 

2 of the Administration and the Board, including 

3 staffing levels during the— 

4 (A) period in which the Administration and 

5 the Board are concurrently processing— 

6 (i) appeals of decisions on legacy 

7 claims; and 

8 (ii) appeals of decisions on non-legacy 

9 claims under the new appeals system; and 

10 (B) the period during which the Adminis11 tration and the Board are no longer processing 

12 any appeals of decisions on legacy claims. 

13 (3) Identification of the legal authorities under 

14 which the Administration or the Board may— 

15 (A) hire additional employees to conduct 

16 the concurrent processing described in para17 graph (2)(A); and 

18 (B) remove employees who are no longer 

19 required by the Administration or the Board 

20 once the Administration and the Board are no 

21 longer processing any appeals of decisions on 

22 legacy claims. 

23 (4) An estimate of the amount of time the Ad24 ministration and the Board will require to hire addi25 tional employees as described in paragraph (3)(A) 


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1 once funding has been made available for such pur2 pose, including a comparison of such estimate and 

3 the historical average time required by the Adminis4 tration and the Board to hire additional employees. 

5 (5) A description of the modifications to the in6 formation technology systems of the Administration 

7 and the Board that the Administration and the 

8 Board require to carry out the new appeals system, 

9 including cost estimates and a timeline for making 

10 the modifications. 

11 (6) An estimate of the office space the Adminis12 tration and the Board will require during each of the 

13 periods described in paragraph (2), including— 

14 (A) an estimate of the amount of time the 

15 Administration and the Board will require to 

16 acquire any additional office space to carry out 

17 processing of appeals of decisions on legacy 

18 claims and processing of appeals under the new 

19 appeals system; 

20 (B) a comparison of the estimate under 

21 subparagraph (A) and the historical average 

22 time required by the Administration and the 

23 Board to acquire new office space; and 

24 (C) a plan for using telework to accommo25 date staff exceeding available office space, inVerDate Sep 11 2014 03:36 May 09, 2017 Jkt 069200 PO 00000 Frm 00032 Fmt 6652 Sfmt 6201 E:\BILLS\S1024.IS S1024

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1 cluding how the Administration and the Board 

2 will provide training and oversight with respect 

3 to such teleworking. 

4 (7) Projections for the productivity of individual 

5 employees at the Administration and the Board in 

6 carrying out tasks relating to the processing of ap7 peals of decisions on legacy claims and appeals 

8 under the new appeals system, taking into account 

9 the experience level of new employees and the en10 hanced notice requirements under section 5104(b) of 

11 title 38, United States Code, as amended by section 

12 2(e). 

13 (8) An outline of the outreach the Secretary ex14 pects to conduct to inform veterans, families of vet15 erans, survivors of veterans, veterans service organi16 zations, military service organizations, congressional 

17 caseworkers, advocates for veterans, and such other 

18 stakeholders as the Secretary considers appropriate 

19 about the new appeals system, including— 

20 (A) a description of the resources required 

21 to conduct such outreach; and 

22 (B) timelines for completing such outreach. 

23 (9) Identification of and a timeline for— 

24 (A) any training that may be required as 

25 a result of hiring new employees to carry out 


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1 the new appeals system or to process appeals of 

2 decisions on legacy claims; and 

3 (B) any retraining of existing employees 

4 that may be required to carry out such system 

5 or to process such claims. 

6 (10) Identification of the costs to the Depart7 ment of the training identified under paragraph (9) 

8 and any additional training staff and any additional 

9 training facilities that will be required to provide 

10 such training. 

11 (11) Timelines for updating any policy guid12 ance, Internet websites, and official forms that may 

13 be necessary to carry out the new appeals system, 

14 including— 

15 (A) identification of which offices and enti16 ties will be involved in efforts relating to such 

17 updating; and 

18 (B) historical information about how long 

19 similar update efforts have taken. 

20 (12) A timeline, including interim milestones, 

21 for promulgating such regulations as may be nec22 essary to carry out the new appeals system and a 

23 comparison with historical averages for time re24 quired to promulgate regulations of similar com25 plexity and scope. 


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1 (13) An outline of the circumstances under 

2 which claimants with pending appeals of decisions 

3 on legacy claims would be authorized to have their 

4 appeals reviewed under the new appeals system. 

5 (14) A delineation of the key goals and mile6 stones for reducing the number of pending appeals 

7 that are not processed under the new appeals sys8 tem, including the expected number of appeals, re9 mands, and hearing requests at the Administration 

10 and the Board each year, beginning with the one 

11 year period beginning on the date of the enactment 

12 of this Act, until there are no longer any appeals 

13 pending before the Administration or the Board for 

14 a decision on a legacy claim. 

15 (15) A description of each risk factor associated 

16 with each element of the plan and a contingency 

17 plan to minimize each such risk. 

18 (c) REVIEW BY COMPTROLLER GENERAL OF THE

19 UNITED STATES.— 

20 (1) IN GENERAL.—Not later than 90 days after 

21 the Comptroller General of the United States re22 ceives the plan required by subsection (a), the 

23 Comptroller General shall— 

24 (A) assess such plan; and 


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1 (B) notify the appropriate committees of 

2 Congress of the findings of the Comptroller 

3 General with respect to the assessment con4 ducted under subparagraph (A). 

5 (2) ELEMENTS.—The assessment conducted 

6 under paragraph (1)(A) shall include the following: 

7 (A) An assessment of whether the plan 

8 comports with sound planning practices. 

9 (B) Identification of any gaps in the plan. 

10 (C) Formulation of such recommendations 

11 as the Comptroller General considers appro12 priate. 

13 (d) PERIODIC PROGRESS REPORTS.—Not later than 

14 90 days after the date on which the Secretary submits 

15 the plan under subsection (a), not less frequently than 

16 once every 90 days thereafter until the applicability date 

17 set forth in section 2(x)(1), and not less frequently than 

18 once every 180 days thereafter for the 10-year period fol19 lowing such applicability date, the Secretary shall submit 

20 to the appropriate committees of Congress and the Comp21 troller General a report on the progress of the Secretary 

22 in carrying out the plan. 

23 (e) APPROPRIATE COMMITTEES OF CONGRESS DE24 FINED.—In this section, the term ‘‘appropriate commit25 tees of Congress’’ means— 


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1 (1) the Committee on Veterans’ Affairs and the 

2 Committee on Appropriations of the Senate; and 

3 (2) the Committee on Veterans’ Affairs and the 

4 Committee on Appropriations of the House of Rep5 resentatives. 

6 SEC. 4. PROGRAMS TO TEST ASSUMPTIONS RELIED ON IN 

7 DEVELOPMENT OF COMPREHENSIVE PLAN 

8 FOR PROCESSING OF LEGACY APPEALS AND 

9 SUPPORTING NEW APPEALS SYSTEM. 

10 (a) AUTHORIZATION.— 

11 (1) IN GENERAL.—The Secretary of Veterans 

12 Affairs may carry out such programs as the Sec13 retary considers appropriate to test any assumptions 

14 relied upon in developing the comprehensive plan re15 quired by section 3(a) and to test the feasibility and 

16 advisability of any facet of the new appeals system. 

17 (2) REPORTING REQUIRED.—Whenever the Sec18 retary determines, based on the conduct of a pro19 gram under paragraph (1), that legislative changes 

20 to the new appeals system are necessary, the Sec21 retary shall submit to the Committee on Veterans’ 

22 Affairs of the Senate and the Committee on Vet23 erans’ Affairs of the House of Representatives notice 

24 of such determination. 


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1 (b) DEPARTMENT OF VETERANS AFFAIRS PROGRAM

2 ON FULLY DEVELOPED APPEALS.— 

3 (1) IN GENERAL.—The Secretary of Veterans 

4 Affairs may, under subsection (a)(1), carry out a 

5 program to provide the option of an alternative ap6 peals process that shall more quickly determine such 

7 appeals in accordance with this subsection. 

8 (2) ELECTION.— 

9 (A) FILING.—In accordance with subpara10 graph (B), a claimant may elect to file a fully 

11 developed appeal under the program by filing 

12 with the Secretary all of the following: 

13 (i) The notice of disagreement under 

14 chapter 71 of title 38, United States Code, 

15 along with the written election of the 

16 claimant to have the appeal determined 

17 under the program. 

18 (ii) All evidence that the claimant be19 lieves is needed for the appeal as of the 

20 date of the filing. 

21 (iii) A statement of the argument in 

22 support of the claim, if any. 

23 (B) TIMING.—A claimant shall make an 

24 election under subparagraph (A) as part of the 


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1 notice of disagreement filed by the claimant in 

2 accordance with subparagraph (A)(i). 

3 (C) TRIAGE.—The Secretary shall, upon 

4 expiration of the period specified in paragraph 

5 (3)(C)(iii), ensure that an assessment is under6 taken of whether an appeal filed under subpara7 graph (A) of this paragraph satisfies the re8 quirements for appeal under the program and 

9 provide appropriate notification to the claimant 

10 of the results of that assessment. 

11 (D) REVERSION.— 

12 (i) ELECTED REVERSION.—At any 

13 time, a claimant who makes an election 

14 under subparagraph (A) may elect to re15 vert to the standard appeals process. Such 

16 a reversion shall be final. 

17 (ii) AUTOMATIC REVERSION.—A 

18 claimant described in clause (i), or a claim19 ant who makes an election under subpara20 graph (A) but is later determined to be in21 eligible for the program under paragraph 

22 (1), shall revert to the standard appeals 

23 process without any penalty to the claim24 ant other than the loss of the docket numVerDate Sep 11 2014 03:36 May 09, 2017 Jkt 069200 PO 00000 Frm 00039 Fmt 6652 Sfmt 6201 E:\BILLS\S1024.IS S1024

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1 ber associated with the fully developed ap2 peal. 

3 (E) OUTREACH.—In providing claimants 

4 with notices of the determination of a claim 

5 during the period in which the program under 

6 paragraph (1) is carried out, the Secretary shall 

7 conduct outreach as follows: 

8 (i) The Secretary shall provide to the 

9 claimant (and to the representative of 

10 record of the claimant, if any) information 

11 regarding— 

12 (I) the program, including the 

13 advantages and disadvantages of the 

14 program; 

15 (II) how to make an election 

16 under subparagraph (A); 

17 (III) the limitation on the use of 

18 new evidence described in subpara19 graph (C) of paragraph (3) and the 

20 development of information under 

21 subparagraph (D) of such paragraph; 

22 (IV) the ability of the claimant to 

23 seek advice and education regarding 

24 such process from veterans service or25 ganizations, attorneys, and claims 


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1 agents recognized under chapter 59 of 

2 title 38, United States Code; and 

3 (V) the circumstances under 

4 which the appeal will automatically re5 vert to the standard appeals process, 

6 including by making a request for a 

7 hearing. 

8 (ii) The Secretary shall collaborate, 

9 partner with, and give weight to the advice 

10 of the three veterans service organizations 

11 with the most members and such other 

12 stakeholders as the Secretary considers ap13 propriate to publish on the Internet 

14 website of the Department of Veterans Af15 fairs an online tutorial explaining the ad16 vantages and disadvantages of the pro17 gram. 

18 (3) TREATMENT BY DEPARTMENT AND

19 BOARD.— 

20 (A) PROCESS.—Upon the election of a 

21 claimant to file a fully developed appeal pursu22 ant to paragraph (2)(A), the Secretary shall— 

23 (i) not provide the claimant with a 

24 statement of the case nor require the 

25 claimant to file a substantive appeal; and 


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1 (ii) transfer jurisdiction over the fully 

2 developed appeal directly to the Board of 

3 Veterans’ Appeals. 

4 (B) DOCKET.— 

5 (i) IN GENERAL.—The Board of Vet6 erans’ Appeals shall— 

7 (I) maintain fully developed ap8 peals on a separate docket than 

9 standard appeals; 

10 (II) decide fully developed ap11 peals in the order that the fully devel12 oped appeals are received on the fully 

13 developed appeal docket; 

14 (III) except as provided by clause 

15 (ii), decide not more than one fully 

16 developed appeal for each four stand17 ard appeals decided; and 

18 (IV) to the extent practicable, de19 cide each fully developed appeal by 

20 the date that is one year following the 

21 date on which the claimant files the 

22 notice of disagreement. 

23 (ii) ADJUSTMENT.—Beginning one 

24 year after the date on which the program 

25 commences, the Board may adjust the 


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1 number of standard appeals decided for 

2 each fully developed appeal under clause 

3 (i)(III) if the Board determines that such 

4 adjustment is fair for both standard ap5 peals and fully developed appeals. 

6 (C) LIMITATION ON USE OF NEW EVI7 DENCE.— 

8 (i) IN GENERAL.—Except as provided 

9 by clauses (ii) and (iii)— 

10 (I) a claimant may not submit or 

11 identify to the Board of Veterans’ Ap12 peals any new evidence relating to a 

13 fully developed appeal after filing such 

14 appeal unless the claimant reverts to 

15 the standard appeals process pursuant 

16 to paragraph (2)(D); and 

17 (II) if a claimant submits or 

18 identifies any such new evidence, such 

19 submission or identification shall be 

20 deemed to be an election to make such 

21 a reversion pursuant to paragraph 

22 (2)(D). 

23 (ii) EVIDENCE GATHERED BY

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1 graphs (D) and (E). The Board shall con2 sider such evidence in the first instance 

3 without consideration by the Veterans Ben4 efits Administration. 

5 (iii) REPRESENTATIVE OF RECORD.— 

6 The representative of record of a claimant 

7 for appeals purposes, if any, shall be pro8 vided an opportunity to review the fully de9 veloped appeal of the claimant and submit 

10 any additional arguments or evidence that 

11 the representative determines necessary 

12 during a period specified by the Board for 

13 purposes of this subparagraph. 

14 (D) PROHIBITION ON REMAND FOR ADDI15 TIONAL DEVELOPMENT.—If the Board of Vet16 erans’ Appeals determines that a fully devel17 oped appeal requires Federal records, inde18 pendent medical opinions, or new medical ex19 aminations, the Board shall— 

20 (i) in accordance with subparagraph 

21 (E), take such actions as may be necessary 

22 to develop such records, opinions, or ex23 aminations in accordance with section 

24 5103A of title 38, United States Code; 


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1 (ii) retain jurisdiction of the fully de2 veloped appeal without requiring a deter3 mination by the Veterans Benefits Admin4 istration based on such records, opinions, 

5 or examinations; 

6 (iii) ensure the claimant, and the rep7 resentative of record of a claimant, if any, 

8 receives a copy of such records, opinions, 

9 or examinations; and 

10 (iv) provide the claimant a period of 

11 90 days after the date of mailing such 

12 records, opinions, or examinations during 

13 which the claimant may provide the Board 

14 any additional evidence without requiring 

15 the claimant to make a reversion pursuant 

16 to paragraph (2)(D). 

17 (E) DEVELOPMENT UNIT.— 

18 (i) ESTABLISHMENT.—The Board of 

19 Veterans’ Appeals shall establish an office 

20 to develop Federal records, independent 

21 medical opinions, and new medical exami22 nations pursuant to subparagraph (D)(i) 

23 that the Board determines necessary to de24 cide a fully developed appeal. 


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1 (ii) REQUIREMENTS.—The Secretary 

2 shall— 

3 (I) ensure that the Veterans Ben4 efits Administration cooperates with 

5 the Board of Veterans’ Appeals in 

6 carrying out clause (i); and 

7 (II) transfer employees of the 

8 Veterans Benefits Administration 

9 who, prior to the enactment of this 

10 Act, were responsible for processing 

11 claims remanded by the Board of Vet12 erans’ Appeals to positions within the 

13 office of the Board established under 

14 clause (i) in a number the Secretary 

15 determines sufficient to carry out 

16 such subparagraph. 

17 (F) HEARINGS.—Notwithstanding section 

18 7107 of title 38, United States Code, the Sec19 retary may not provide hearings with respect to 

20 fully developed appeals under the program. If a 

21 claimant requests to hold a hearing pursuant to 

22 such section 7107, such request shall be deemed 

23 to be an election to revert to the standard ap24 peals process pursuant to paragraph (2)(D). 

25 (4) DURATION; APPLICABILITY.— 


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1 (A) DURATION.—Subject to subsection (c), 

2 the Secretary may carry out the program dur3 ing such period as the Secretary considers ap4 propriate. 

5 (B) APPLICABILITY.—This section shall 

6 apply only to fully developed appeals that are 

7 filed during the period in which the program is 

8 carried out pursuant to subparagraph (A). 

9 (5) DEFINITIONS.—In this subsection: 

10 (A) COMPENSATION.—The term ‘‘com11 pensation’’ has the meaning given that term in 

12 section 101 of title 38, United States Code. 

13 (B) FULLY DEVELOPED APPEAL.—The 

14 term ‘‘fully developed appeal’’ means an appeal 

15 of a claim for disability compensation that is— 

16 (i) filed by a claimant in accordance 

17 with paragraph (2)(A); and 

18 (ii) considered in accordance with this 

19 subsection. 

20 (C) STANDARD APPEAL.—The term 

21 ‘‘standard appeal’’ means an appeal of a claim 

22 for disability compensation that is not a fully 

23 developed appeal. 

24 (c) TERMINATION OF AUTHORITY.—The Secretary of 

25 Veterans Affairs may not carry out a program under this 


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1 section after the applicability date set forth in section 

2 2(x)(1). 

3 SEC. 5. PERIODIC PUBLICATION OF METRICS RELATING TO 

4 PROCESSING OF APPEALS BY DEPARTMENT 

5 OF VETERANS AFFAIRS. 

6 The Secretary of Veterans Affairs shall periodically 

7 publish on an Internet website of the Department of Vet8 erans Affairs the following: 

9 (1) With respect to the processing by the Sec10 retary of appeals under the new appeals system of 

11 decisions regarding claims for benefits under laws 

12 administered by the Secretary, the following: 

13 (A) For the Veterans Benefits Administra14 tion and, to the extent practicable, each re15 gional office of the Department of Veterans Af16 fairs, the number of— 

17 (i) supplemental claims under section 

18 5108 of title 38, United States Code, as 

19 amended by section 2(i), that are pending; 

20 and 

21 (ii) requests for higher-level review 

22 under section 5104B of such title, as 

23 added by section 2(g), that are pending. 


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1 (B) The number of appeals on any docket 

2 maintained under section 7107 of such title, as 

3 amended by section 2(t), that are pending. 

4 (C) The average duration for processing 

5 claims and supplemental claims, disaggregated 

6 by regional office. 

7 (D) The average duration for processing 

8 requests for higher-level review under section 

9 5104B of such title, as added by section 2(g), 

10 disaggregated by regional office. 

11 (E) The average number of days that ap12 peals are pending on a non-hearing option dock13 et of the Board of Veterans’ Appeals main14 tained pursuant to section 7107 of such title, as 

15 amended by section 2(t), and any other docket 

16 maintained by the Board under such section 

17 that prohibits the submittal of additional evi18 dence. 

19 (F) The average number of days that ap20 peals are pending on dockets maintained under 

21 such section in which hearings are requested or 

22 submittal of additional evidence is allowed. 

23 (G) The average number of days that an 

24 appeal is pending on any other docket main25 tained by the Board under such section. 


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1 (H) In the case that the Secretary develops 

2 and implements a policy under section 7107(e) 

3 of such title, as amended by section 2(t)— 

4 (i) the number of cases moved from 

5 one docket to another pursuant to such 

6 policy; 

7 (ii) the average time cases were pend8 ing prior to moving from one docket to an9 other; and 

10 (iii) the average time to adjudicate the 

11 cases after so moving. 

12 (I) The total number of remands to obtain 

13 advisory medical opinions under section 

14 5109(d) of title 38, United States Code, as 

15 added by section 2(j). 

16 (J) The average number of days between 

17 the date on which the Board remands a claim 

18 to obtain an advisory medical opinion under 

19 section 5109(d) of such title, as so added, and 

20 the date on which the advisory medical opinion 

21 is obtained. 

22 (K) The average number of days between 

23 the date on which the Board remands a claim 

24 to obtain an advisory medical opinion under 

25 section 5109(d) of such title, as so added, and 


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1 the date on which the agency of original juris2 diction issues a decision taking that advisory 

3 opinion into account. 

4 (L) The number of appeals that are grant5 ed, the number of appeals that are remanded, 

6 and the number of appeals that are denied by 

7 the Board disaggregated by docket. 

8 (M) The number of claimants each year 

9 that take action within the period set forth in 

10 section 5110(a)(2) of such title, as added by 

11 section 2(l), to protect their effective date under 

12 such section 5110(a)(2), disaggregated by the 

13 status of the claimants taking the actions, such 

14 as whether the claimant is represented by a vet15 erans service organization, the claimant is rep16 resented by an attorney, or the claimant is tak17 ing such action pro se. 

18 (N) The total number of times on average 

19 each claimant files under section 5110(a)(2) of 

20 such title, as so added, to protect their effective 

21 date under such section, disaggregated by the 

22 subparagraph of such section under which they 

23 file. 

24 (O) The average duration, from the filing 

25 of an initial claim until the claim is resolved 


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1 and claimants no longer take any action to pro2 tect their effective date under section 

3 5110(a)(2) of such title, as so added— 

4 (i) of claims under the new appeals 

5 system, excluding legacy claims that opt in 

6 to the new appeals system; and 

7 (ii) of legacy claims that opt in to the 

8 new appeals system. 

9 (P) How frequently an action taken within 

10 one year to protect an effective date under sec11 tion 5110(a)(2) of such title, as so added, leads 

12 to additional grant of benefits, disaggregated by 

13 action taken. 

14 (Q) The average of how long it takes to 

15 complete each segment of the claims process 

16 while claimants are protecting the effective date 

17 under such section, disaggregated by the time 

18 waiting for the claimant to take an action and 

19 the time waiting for the Secretary to take an 

20 action. 

21 (R) The number and the average amount 

22 of retroactive awards of benefits from the Sec23 retary as a result of protected effective dates 

24 under such section, disaggregated by action 

25 taken. 


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1 (S) The average number of times claim2 ants submit to the Secretary different claims 

3 with respect to same condition, such as an ini4 tial claim and a supplemental claim. 

5 (T) The number of cases each year in 

6 which a claimant inappropriately tried to take 

7 simultaneous actions, such as filing a supple8 mental claim while a higher-level review is 

9 pending, what actions the Secretary took in re10 sponse, and how long it took on average to take 

11 those actions. 

12 (U) In the case that the Secretary develops 

13 and implements a policy under section 

14 5104C(a)(2)(D) of such title, as amended by 

15 section 2(h)(1), the number of actions with16 drawn and new actions taken pursuant to such 

17 policy. 

18 (V) The number of times the Secretary re19 ceived evidence relating to an appeal or higher20 level review at a time not authorized under the 

21 new appeals system, disaggregated by actions 

22 taken by the Secretary to deal with the evidence 

23 and how long on average it took to take those 

24 actions. 


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1 (W) The number of errors committed by 

2 the Secretary in carrying out the Secretary’s 

3 duty to assist under section 5103A of title 38, 

4 United States Code, that were identified by 

5 higher-level review and by the Board, 

6 disaggregated by type of error, such as errors 

7 relating to private records and inadequate ex8 aminations, and a comparison with errors com9 mitted by the Secretary in carrying out such 

10 duty with respect to appeals of decisions on leg11 acy claims. 

12 (X) An assessment of the productivity of 

13 employees at the regional offices and at the 

14 Board, disaggregated by level of experience of 

15 the employees. 

16 (2) With respect to the processing by the Sec17 retary of appeals of decisions on legacy claims, the 

18 following: 

19 (A) The average duration of each segment 

20 of the appeals process, disaggregated by periods 

21 in which the Secretary is waiting for a claimant 

22 to take an action and periods in which the 

23 claimant is waiting for the Secretary to take an 

24 action. 


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1 (B) The frequency by which appeals lead 

2 to additional grant of benefits by the Secretary, 

3 disaggregated by whether the additional bene4 fits are a result of additional evidence added 

5 after the initial decision. 

6 (C) The number and average amount of 

7 retroactive awards of benefits resulting from an 

8 appeal. 

9 (D) The average duration from filing a leg10 acy claim with the Secretary until all appeals 

11 and remands relating to such legacy claim are 

12 completed. 

13 (E) The average number of times claim14 ants submit to the Secretary different claims 

15 with respect to same condition, such as an ini16 tial claim, new and material evidence, or a 

17 claim for an increase in benefits. 

18 (F) An assessment of the productivity of 

19 employees at the regional offices and at the 

20 Board, disaggregated by level of experience of 

21 the employees. 

22 (G) The average number of days the dura23 tion of an appeal is extended because the Sec24 retary secured or attempted to secure an advi25 sory medical opinion under section 5109 of title 


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1 38, United States Code, or section 7109 of such 

2 title (as in effect on the day before the date of 

3 the enactment of this Act). 

4 (3) With respect to the processing by the Sec5 retary of appeals of decisions on legacy claims that 

6 opt in to the new appeals system, the following: 

7 (A) The cumulative number of such legacy 

8 claims. 

9 (B) The portion of work in the new ap10 peals system attributable to appeals of decisions 

11 on such legacy claims. 

12 (C) The average period such legacy claims 

13 were pending before opting in to the new ap14 peals system and the average period required to 

15 adjudicate such legacy claims on average after 

16 opting in— 

17 (i) with respect to claims at a regional 

18 office of the Department of Veterans Af19 fairs, disaggregated by— 

20 (I) supplemental claims under 

21 section 5108 of title 38, United States 

22 Code, as amended by section 2(i); and 

23 (II) requests for higher-level re24 view under section 5104B of such 

25 title, as added by section 2(g); and 


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1 (ii) with respect to appeals, 

2 disaggregated by docket of the Board 

3 maintained under section 7107 of such 

4 title, as amended by section 2(t). 

5 SEC. 6. DEFINITIONS. 

6 In this Act: 

7 (1) CLAIMANT.—The term ‘‘claimant’’ has the 

8 meaning given such term in section 5100 of title 38, 

9 United States Code. 

10 (2) LEGACY CLAIMS.—The term ‘‘legacy claim’’ 

11 means a claim— 

12 (A) that was submitted to the Secretary of 

13 Veterans Affairs for a benefit under a law ad14 ministered by the Secretary; and 

15 (B) for which notice of a decision under 

16 section 5104 of title 38, United States Code, 

17 was provided by the Secretary before the date 

18 set forth in section 2(x). 

19 (3) OPT IN.—The term ‘‘opt in’’ means, with 

20 respect to a legacy claim of a claimant, that the 

21 claimant elects to subject the claim to the new ap22 peals system pursuant to— 

23 (A) section 2(x)(3); or 


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1 (B) such other mechanism as the Secretary 

2 may prescribe for purposes of carrying out this 

3 Act and the amendments made by this Act. 

4 (4) NEW APPEALS SYSTEM.—The term ‘‘new 

5 appeals system’’ means the set of processes and 

6 mechanisms by which the Secretary processes, pur7 suant to the authorities and requirements modified 

8 by section 2, claims for benefits under laws adminis9 tered by the Secretary. 

Æ 


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