II 

Calendar No. 166 

115TH CONGRESS 

1ST SESSION S. 1024 

[Report No. 115–126] 

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, Mr. KAINE, Mr. HATCH, 

Mrs. CAPITO, Ms. COLLINS, Mr. DURBIN, Mr. THUNE, Mr. HELLER, Mr. 

CRAPO, Mr. COCHRAN, Mr. WARNER, Mr. MANCHIN, Ms. HIRONO, Mr. 

BROWN, Mr. ENZI, Mr. ROUNDS, Mr. NELSON, Mrs. MCCASKILL, and 

Mr. HEINRICH) introduced the following bill; which was read twice and 

referred to the Committee on Veterans’ Affairs 

JULY 10, 2017 

Reported by Mr. ISAKSON, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

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. 


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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’’. 

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

7 APPEALS OF DECISIONS REGARDING CLAIMS 

8 FOR BENEFITS UNDER LAWS ADMINISTERED 

9 BY SECRETARY OF VETERANS AFFAIRS. 

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

11 States Code, is amended by adding at the end the fol12 lowing new paragraphs: 

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

14 means the activity which entered the original deter15 mination with regard to a claim for benefits under 

16 laws administered by the Secretary. 

17 ‘‘(35) The term ‘relevant evidence’ means evi18 dence that tends to prove or disprove a matter in 

19 issue. 

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

21 claim for benefits under laws administered by the 

22 Secretary filed by a claimant who had previously 

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

24 same or similar basis.’’. 


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

2 of such title is amended— 

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

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

5 paragraph (3), the’’; 

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

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

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

9 ‘‘or a supplemental claim;’’; and 

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

11 paragraph: 

12 ‘‘(3) The requirement to provide notice under para13 graph (1) shall not apply with respect to a supplemental 

14 claim that is filed within the timeframe set forth in sub15 paragraphs (B) and (D) of section 5110(a)(2) of this 

16 title.’’. 

17 (c) MODIFICATION OF RULE REGARDING DIS18 ALLOWED CLAIMS.—Section 5103A(f) of such title is 

19 amended— 

20 (1) by striking ‘‘reopen’’ and inserting ‘‘readju21 dicate’’; and 

22 (2) by striking ‘‘material’’ and inserting ‘‘rel23 evant’’. 

24 (d) MODIFICATION OF DUTY TO ASSIST CLAIM25 ANTS.—Section 5103A of such title is amended— 


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

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

3 (2) by inserting after subsection (d) the fol4 lowing new subsections: 

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

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

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

8 a law administered by the Secretary until the time that 

9 a claimant is provided notice of the agency of original ju10 risdiction’s decision with respect to such claim, or supple11 mental claim, under section 5104 of this title. 

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

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

14 original jurisdiction, pursuant to section 5104B of this 

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

16 Appeals. 

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

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

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

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

21 the agency of original jurisdiction to satisfy its duties 

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

23 agency of original jurisdiction decision being reviewed, un24 less the claim can be granted in full, the higher-level adjuVerDate Sep 11 2014 22:42 Jul 10, 2017 Jkt 069200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6401 E:\BILLS\S1024.RS S1024

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1 dicator shall return the claim for correction of such error 

2 and readjudication. 

3 ‘‘(2)(A) If the Board of Veterans’ Appeals, during re4 view on appeal of an agency of original jurisdiction deci5 sion, identifies or learns of an error on the part of the 

6 agency of original jurisdiction to satisfy its duties under 

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

8 of original jurisdiction decision on appeal, unless the claim 

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

10 to the agency of original jurisdiction for correction of such 

11 error and readjudication. 

12 ‘‘(B) Remand for correction of such error may in13 clude directing the agency of original jurisdiction to obtain 

14 an advisory medical opinion under section 5109 of this 

15 title. 

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

17 imply that the Secretary, during the consideration of a 

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

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

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

21 respect to the claim.’’. 

22 (e) DECISIONS AND NOTICES OF DECISIONS.—Sub23 section (b) of section 5104 of such title is amended to read 

24 as follows: 


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

2 also include all of the following: 

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

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

5 the Secretary. 

6 ‘‘(3) A summary of the applicable laws and reg7 ulations. 

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

9 claimant. 

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

11 elements not satisfied leading to the denial. 

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

13 evidence used in making the decision. 

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

15 that must be satisfied to grant service connection or 

16 the next higher level of compensation.’’. 

17 (f) BINDING NATURE OF FAVORABLE FINDINGS.— 

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

19 amended by inserting after section 5104 the fol20 lowing new section: 

21 ‘‘§ 5104A. Binding nature of favorable findings 

22 ‘‘Any finding favorable to the claimant as described 

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

24 subsequent adjudicators within the Department, unless 


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1 clear and convincing evidence is shown to the contrary to 

2 rebut such favorable finding.’’. 

3 (2) CLERICAL AMENDMENT.—The table of sec4 tions at the beginning of chapter 51 of such title is 

5 amended by inserting after the item relating to sec6 tion 5104 the following new item: 

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

7 (g) HIGHER-LEVEL REVIEW BY AGENCY OF ORIGI8 NAL JURISDICTION.— 

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

10 amended by subsection (f), is further amended by in11 serting after section 5104A, as added by such sub12 section, the following new section: 

13 ‘‘§ 5104B. Higher-level review by the agency of origi14 nal jurisdiction 

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

16 review of the decision of the agency of original jurisdiction 

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

18 jurisdiction. 

19 ‘‘(2) The Secretary shall approve each request for re20 view under paragraph (1). 

21 ‘‘(b) TIME AND MANNER OF REQUEST.—(1) A re22 quest for higher-level review by the agency of original ju23 risdiction shall be— 

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

25 may prescribe; and 


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

2 agency of original jurisdiction’s decision. 

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

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

5 the same office within the agency of original jurisdiction 

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

7 of original jurisdiction. The Secretary shall not deny such 

8 request for review by an adjudicator at a different office 

9 of the agency of original jurisdiction without good cause. 

10 ‘‘(c) DECISION.—Notice of a higher-level review deci11 sion under this section shall be provided in writing and 

12 shall include a general statement— 

13 ‘‘(1) reflecting whether evidence was not consid14 ered pursuant to subsection (d); and 

15 ‘‘(2) noting the options available to the claim16 ant to have the evidence described in paragraph (1), 

17 if any, considered by the Department. 

18 ‘‘(d) EVIDENTIARY RECORD FOR REVIEW.—The evi19 dentiary record before the higher-level adjudicator shall be 

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

21 jurisdiction decision being reviewed. 

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

23 the agency of original jurisdiction by a higher-level adjudi24 cator within the agency of original jurisdiction shall be de 

25 novo.’’. 


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1 (2) CLERICAL AMENDMENT.—The table of sec2 tions at the beginning of chapter 51 of such title, as 

3 amended by subsection (f), is further amended by in4 serting after the item relating to section 5104A, as 

5 added by such subsection, the following new item: 

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

6 (h) OPTIONS FOLLOWING DECISION BY AGENCY OF

7 ORIGINAL JURISDICTION.— 

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

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

10 inserting after section 5104B, as added by such sub11 section, the following new section: 

12 ‘‘§ 5104C. Options following decision by agency of 

13 original jurisdiction 

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

15 to paragraph (2), in any case in which the Secretary ren16 ders a decision on a claim, the claimant may take any of 

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

18 after the date on which the agency of original jurisdiction 

19 issues a decision with respect to that claim: 

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

21 under section 5104B of this title. 

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

23 5108 of this title. 

24 ‘‘(C) File a notice of disagreement under sec25 tion 7105 of this title. 


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

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

3 set forth in that paragraph with respect to such claim 

4 until— 

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

6 or notice of disagreement is adjudicated; or 

7 ‘‘(ii) the request for higher-level review, supple8 mental claim, or notice of disagreement is with9 drawn. 

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

11 claimant from taking any of the actions set forth in para12 graph (1) in succession with respect to a claim. 

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

14 claimant from taking different actions set forth in para15 graph (1) with respect to different claims. 

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

17 appropriate, develop and implement a policy for claimants 

18 who— 

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

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

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

22 disagreement is adjudicated; and 

23 ‘‘(iii) in lieu of such action take a different ac24 tion under paragraph (1). 


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

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

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

4 on which the agency of original jurisdiction issues a deci5 sion with respect to that claim, the claimant may file a 

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

7 (2) CLERICAL AMENDMENT.—The table of sec8 tions at the beginning of chapter 51 of such title, as 

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

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

11 added by such subsection, the following new item: 

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

12 (i) SUPPLEMENTAL CLAIMS.— 

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

14 amended to read as follows: 

15 ‘‘§ 5108. Supplemental claims 

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

17 with respect to a supplemental claim, the Secretary shall 

18 readjudicate the claim taking into consideration any evi19 dence added to the record prior to the former disposition 

20 of the claim.’’. 

21 (2) CLERICAL AMENDMENT.—The table of sec22 tions at the beginning of chapter 51 of such title is 

23 amended by striking the item relating to section 

24 5108 and inserting the following new item: 

‘‘5108. Supplemental claims.’’. 


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1 (j) REMAND TO OBTAIN ADVISORY MEDICAL OPIN2 ION.—Section 5109 of such title is amended by adding 

3 at the end the following new subsection: 

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

5 a claim to direct the agency of original jurisdiction to ob6 tain an advisory medical opinion from an independent 

7 medical expert under this section if the Board finds that 

8 the Veterans Benefits Administration should have exer9 cised its discretion to obtain such an opinion. 

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

11 the questions to be posed to the independent medical ex12 pert providing the advisory medical opinion.’’. 

13 (k) RESTATEMENT OF REQUIREMENT FOR EXPE14 DITED TREATMENT OF RETURNED AND REMANDED

15 CLAIMS.— 

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

17 is amended to read as follows: 

18 ‘‘§ 5109B. Expedited treatment of returned and re19 manded claims 

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

21 necessary to provide for the expeditious treatment by the 

22 Veterans Benefits Administration of any claim that is re23 turned by a higher-level adjudicator under section 5104B 

24 of this title or remanded by the Board of Veterans’ Ap25 peals.’’. 


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1 (2) CLERICAL AMENDMENT.—The table of sec2 tions at the beginning of chapter 51 of such title is 

3 amended by striking the item relating to section 

4 5109B and inserting the following new item: 

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

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

6 title 38, United States Code, is amended— 

7 (1) by amending subsection (a) to read as fol8 lows: 

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

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

11 claim, or a supplemental claim, of compensation, depend12 ency and indemnity compensation, or pension, shall be 

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

14 earlier than the date of receipt of application therefor. 

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

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

17 shall be considered the date of the filing of the initial ap18 plication for a benefit if the claim is continuously pursued 

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

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

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

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

23 original jurisdiction issues a decision. 

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

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


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1 after the date on which the agency of original juris2 diction issues a decision. 

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

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

5 agency of original jurisdiction issues a decision. 

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

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

8 after the date on which the Board of Veterans’ Ap9 peals issues a decision. 

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

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

12 after the date on which the Court of Appeals for 

13 Veterans Claims issues a decision. 

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

15 supplemental claims received more than one year after the 

16 date on which the agency of original jurisdiction issued 

17 a decision or the Board of Veterans’ Appeals issued a deci18 sion, the effective date shall be fixed in accordance with 

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

20 receipt of the supplemental claim.’’; and 

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

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

23 ‘‘readjudicated’’; 

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

25 ‘‘relevant’’; and 


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

2 ‘‘readjudication’’. 

3 (m) DEFINITION OF AWARD OR INCREASED AWARD

4 FOR PURPOSES OF PROVISIONS RELATING TO COM5 MENCEMENT OF PERIOD OF PAYMENT.—Section 

6 5111(d)(1) of such title is amended by striking ‘‘or re7 opened award’’ and inserting ‘‘award or award based on 

8 a supplemental claim’’. 

9 (n) MODIFICATION ON LIMITATION ON FEES ALLOW10 ABLE FOR REPRESENTATION.—Section 5904(c) of such 

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

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

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

14 of original jurisdiction’s initial decision under section 5104 

15 of this title’’. 

16 (o) CLARIFICATION OF BOARD OF VETERANS’ AP17 PEALS REFERRAL REQUIREMENTS AFTER ORDER FOR

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

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

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

21 (p) CONFORMING AMENDMENT RELATING TO RE22 ADJUDICATION.—Section 7104(b) of such title is amended 

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

24 (q) MODIFICATION OF PROCEDURES FOR APPEALS

25 TO BOARD OF VETERANS’ APPEALS.— 


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

2 United States Code, is amended— 

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

4 sentence and inserting ‘‘Appellate review shall 

5 be initiated by the filing of a notice of disagree6 ment in the form prescribed by the Secretary.’’; 

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

8 follows: 

9 ‘‘(b)(1)(A) Except in the case of simultaneously con10 tested claims, a notice of disagreement shall be filed within 

11 one year from the date of the mailing of notice of the deci12 sion of the agency of original jurisdiction pursuant to sec13 tion 5104, 5104B, or 5108 of this title. 

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

15 expiration of the one-year period shall be accepted as time16 ly filed. 

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

18 notice of disagreement shall be decided by the Board. 

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

20 shall identify the specific determination with which the 

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

22 claimant’s legal guardian, or such accredited representa23 tive, attorney, or authorized agent as may be selected by 

24 the claimant or legal guardian. 


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1 ‘‘(B) Not more than one recognized organization, at2 torney, or agent may be recognized at any one time in 

3 the prosecution of a claim. 

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

5 Board. 

6 ‘‘(3) The notice of disagreement shall indicate wheth7 er the claimant requests— 

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

9 include an opportunity to submit evidence in accord10 ance with section 7113(b) of this title; 

11 ‘‘(B) an opportunity to submit additional evi12 dence without a hearing before the Board, which 

13 shall include an opportunity to submit evidence in 

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

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

16 or the submittal of additional evidence. 

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

18 a claimant to modify the information identified in the no19 tice of disagreement after the notice of disagreement has 

20 been filed under this section pursuant to such require21 ments as the Secretary may prescribe.’’; 

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

23 follows: 

24 ‘‘(c) If no notice of disagreement is filed in accord25 ance with this chapter within the prescribed period, the 


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1 action or decision of the agency of original jurisdiction 

2 shall become final and the claim shall not thereafter be 

3 readjudicated or allowed, except as may otherwise be pro4 vided by section 5104B or 5108 of this title or such regu5 lations as are consistent with this title.’’; 

6 (D) by striking subsection (d) and insert7 ing the following new subsection (d): 

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

9 any appeal which fails to identify the specific determina10 tion with which the claimant disagrees.’’; 

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

12 (F) in the section heading, by striking 

13 ‘‘notice of disagreement and’’. 

14 (2) CLERICAL AMENDMENT.—The table of sec15 tions at the beginning of chapter 71 of such title is 

16 amended by striking the item relating to section 

17 7105 and inserting the following new item: 

‘‘7105. Filing of appeal.’’. 

18 (r) MODIFICATION OF PROCEDURES AND REQUIRE19 MENTS FOR SIMULTANEOUSLY CONTESTED CLAIMS.— 

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

21 to read as follows: 

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

23 shall be communicated to the other party or parties in in24 terest and a period of thirty days shall be allowed for filing 

25 a brief or argument in response thereto. 


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

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

3 shall constitute sufficient evidence of notice.’’. 

4 (s) REPEAL OF PROCEDURES FOR ADMINISTRATIVE

5 APPEALS.— 

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

7 amended by striking section 7106. 

8 (2) CLERICAL AMENDMENT.—The table of sec9 tions at the beginning of chapter 71 of such title is 

10 amended by striking the item relating to section 

11 7106. 

12 (t) MODIFICATIONS RELATING TO APPEALS: DOCK13 ETS; HEARINGS.— 

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

15 amended to read as follows: 

16 ‘‘§ 7107. Appeals: dockets; hearings 

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

18 Board shall maintain at least two separate dockets. 

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

20 separate dockets unless the Board notifies the Committee 

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

22 Veterans’ Affairs of the House of Representatives of any 

23 additional docket, including a justification for maintaining 

24 such additional docket. 


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1 ‘‘(3)(A) The Board may assign to each docket main2 tained under paragraph (1) such cases as the Board con3 siders appropriate, except that cases described in clause 

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

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

6 are assigned. 

7 ‘‘(B) Cases described in this paragraph are the fol8 lowing: 

9 ‘‘(i) Cases in which no Board hearing is re10 quested and no additional evidence will be sub11 mitted. 

12 ‘‘(ii) Cases in which a Board hearing is re13 quested in the notice of disagreement. 

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

15 before the Board will be decided in regular order according 

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

17 by the Board. 

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

19 on one of the dockets of the Board maintained under sub20 section (a) may, for cause shown, be advanced on motion 

21 for earlier consideration and determination. 

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

23 grounds upon which the motion is based. 

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


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

2 general application affecting other claims; 

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

4 severe financial hardship; or 

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

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

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

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

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

10 hearing is requested in the notice of disagreement, the 

11 Board shall notify the appellant whether a Board hearing 

12 will be held— 

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

14 ‘‘(B) by picture and voice transmission at a fa15 cility of the Department where the Secretary has 

16 provided suitable facilities and equipment to conduct 

17 such hearings. 

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

19 Board’s principal location as described in subparagraph 

20 (A) of paragraph (1), the appellant may alternatively re21 quest a hearing as described in subparagraph (B) of such 

22 paragraph. If so requested, the Board shall grant such re23 quest. 

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

25 and voice transmission as described in subparagraph (B) 


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

2 a hearing as described in subparagraph (A) of such para3 graph. If so requested, the Board shall grant such request. 

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

5 shall be construed to preclude the screening of cases for 

6 purposes of— 

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

8 decisional purposes; or 

9 ‘‘(2) the development, or attempted develop10 ment, of a record found to be inadequate for 

11 decisional purposes. 

12 ‘‘(e) POLICY ON CHANGING DOCKETS.—The Sec13 retary may develop and implement a policy allowing a 

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

15 another docket.’’. 

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

17 90 days before the date set forth in subsection (x), 

18 the Secretary shall submit to the Committee on Vet19 erans’ Affairs of the Senate and the Committee on 

20 Veterans’ Affairs of the House of Representatives a 

21 report setting forth a description of the docket that 

22 will be maintained under section 7107 of title 38, 

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

24 for cases in which no hearing before the Board of 

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1 agreement but the appellant requests, in the notice 

2 of disagreement, an opportunity to submit additional 

3 evidence. 

4 (u) REPEAL OF CERTAIN AUTHORITY FOR INDE5 PENDENT MEDICAL OPINIONS.— 

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

7 repealed. 

8 (2) CONFORMING AMENDMENT.—Section 

9 5701(b)(1) of such title is amended by striking ‘‘or 

10 7109’’. 

11 (3) CLERICAL AMENDMENT.—The table of sec12 tions at the beginning of chapter 71 of such title is 

13 amended by striking the item relating to section 

14 7109. 

15 (v) CLARIFICATION OF PROCEDURES FOR REVIEW OF

16 DECISIONS ON GROUNDS OF CLEAR AND UNMISTAKABLE

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

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

19 official acting on behalf of the Secretary’’. 

20 (w) EVIDENTIARY RECORD BEFORE BOARD OF VET21 ERANS’ APPEALS.— 

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

23 amended by adding at the end the following new sec24 tion: 


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1 ‘‘§ 7113. Evidentiary record before the Board of Vet2 erans’ Appeals 

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

4 ADDITIONAL EVIDENCE.—For cases in which a hearing 

5 before the Board of Veterans’ Appeals is not requested 

6 in the notice of disagreement and no request was made 

7 to submit evidence, the evidentiary record before the 

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

9 time of the decision of the agency of original jurisdiction 

10 on appeal. 

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

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

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

14 evidentiary record before the Board shall be limited to the 

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

16 of original jurisdiction on appeal. 

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

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

19 following, which the Board shall consider in the first in20 stance: 

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

22 his or her representative, if any, at the Board hear23 ing. 

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

25 his or her representative, if any, within 90 days fol26 lowing the Board hearing. 


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

2 WITH A REQUEST FOR ADDITIONAL EVIDENCE.—(1) Ex3 cept as provided in paragraph (2), for cases in which a 

4 hearing is not requested in the notice of disagreement but 

5 an opportunity to submit evidence is requested, the evi6 dentiary record before the Board shall be limited to the 

7 evidence considered by the agency of original jurisdiction 

8 in the decision 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, with the notice of 

15 disagreement. 

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

17 his or her representative, if any, within 90 days fol18 lowing receipt of the notice of disagreement.’’. 

19 (2) NOTIFICATION WHEN EVIDENCE NOT CON20 SIDERED.—Section 7104(d) of such title is amend21 ed— 

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

23 and inserting a semicolon; 

24 (B) by redesignating paragraph (2) as 

25 paragraph (3); and 


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

2 following new paragraph (2): 

3 ‘‘(2) a general statement— 

4 ‘‘(A) reflecting whether evidence was not 

5 considered in making the decision because the 

6 evidence was received at a time when not per7 mitted under section 7113 of this title; and 

8 ‘‘(B) noting such options as may be avail9 able for having the evidence considered by the 

10 Department; and’’. 

11 (3) CLERICAL AMENDMENT.—The table of sec12 tions at the beginning of chapter 71 of such title is 

13 amended by inserting after the item relating to sec14 tion 7112 the following new item: 

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

15 (x) APPLICABILITY.— 

16 (1) IN GENERAL.—Except as otherwise pro17 vided in this subsection, the amendments made by 

18 this section shall apply to all claims for which notice 

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

20 States Code, is provided by the Secretary of Vet21 erans Affairs on or after the later of— 

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

23 date of the enactment of this Act; and 

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

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1 mits to the appropriate committees of Congress 

2 a certification that the Secretary confirms, 

3 without delegation, that the Department of Vet4 erans Affairs has the resources, personnel, of5 fice space, procedures, and information tech6 nology required— 

7 (i) to carry out the new appeals sys8 tem; and 

9 (ii) to timely address both appeals of 

10 decisions on legacy claims and appeals 

11 under the new appeals system. 

12 (2) COLLABORATION.—In determining whether 

13 and when to make a certification under paragraph 

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

15 with, and give weight to the advice of veterans serv16 ice organizations and such other stakeholders as the 

17 Secretary considers appropriate. 

18 (3) EARLY APPLICABILITY.—The Secretary 

19 may apply the new appeals system to a claim with 

20 respect to which the claimant— 

21 (A) receives a notice of a decision under 

22 section 5104 of such title after the date of the 

23 enactment of this Act and before the applica24 bility date set forth in paragraph (1); and 


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

2 appeals system. 

3 (4) PHASED ROLLOUT.—The Secretary may 

4 begin implementation of the new appeals system in 

5 phases, with the first phase of such phased imple6 mentation beginning on the applicability date set 

7 forth in paragraph (1). 

8 (5) TREATMENT OF LEGACY CLAIMS.—With re9 spect to legacy claims, upon the issuance to a claim10 ant of a statement of the case or supplemental state11 ment of the case occurring on or after the applica12 bility date specified in paragraph (1), a claimant 

13 may elect to participate in the new appeals system. 

14 (6) PUBLICATION OF APPLICABILITY DATE.— 

15 Not later than the date on which the new appeals 

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

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

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

19 the Federal Register such date. 

20 (7) DEFINITIONS.—In this subsection: 

21 (A) APPROPRIATE COMMITTEES OF CON22 GRESS.—The term ‘‘appropriate committees of 

23 Congress’’ means— 


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1 (i) the Committee on Veterans’ Af2 fairs and the Committee on Appropriations 

3 of the Senate; and 

4 (ii) the Committee on Veterans’ Af5 fairs and the Committee on Appropriations 

6 of the House of Representatives. 

7 (B) VETERANS SERVICE ORGANIZATION.— 

8 The term ‘‘veterans service organization’’ 

9 means any organization recognized by the Sec10 retary for the representation of veterans under 

11 section 5902 of title 38, United States Code. 

12 (y) RULE OF CONSTRUCTION.—Nothing in this sec13 tion or any of the amendments made by this section shall 

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

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

16 title 38, United States Code. 

17 SEC. 3. COMPREHENSIVE PLAN FOR PROCESSING OF LEG18 ACY APPEALS AND IMPLEMENTING NEW AP19 PEALS SYSTEM. 

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

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

22 Veterans Affairs shall submit to the appropriate commit23 tees of Congress and the Comptroller General of the 

24 United States a comprehensive plan for— 


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1 (1) the processing of appeals of decisions on 

2 legacy claims that the Secretary considers pending; 

3 (2) implementing the new appeals system; 

4 (3) timely processing, under the new appeals 

5 system, of— 

6 (A) supplemental claims under section 

7 5108 of title 38, United States Code, as amend8 ed by section 2(i); 

9 (B) requests for higher-level review under 

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

11 2(g); and 

12 (C) appeals on any docket maintained 

13 under section 7107 of such title, as amended by 

14 section 2(t); and 

15 (4) monitoring the implementation of the new 

16 appeals system, including metrics and goals— 

17 (A) to track the progress of the implemen18 tation; 

19 (B) to evaluate the efficiency and effective20 ness of the implementation; and 

21 (C) to identify potential issues relating to 

22 the implementation. 

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

24 shall include, at a minimum, the following: 


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1 (1) Delineation of the total resource require2 ments of the Veterans Benefits Administration and 

3 the Board of Veterans’ Appeals, disaggregated by 

4 resources required to implement and administer the 

5 new appeals system and resources required to ad6 dress the appeals of decisions on legacy claims. 

7 (2) Delineation of the personnel requirements 

8 of the Administration and the Board, including 

9 staffing levels during the— 

10 (A) period in which the Administration and 

11 the Board are concurrently processing— 

12 (i) appeals of decisions on legacy 

13 claims; and 

14 (ii) appeals of decisions on non-legacy 

15 claims under the new appeals system; and 

16 (B) the period during which the Adminis17 tration and the Board are no longer processing 

18 any appeals of decisions on legacy claims. 

19 (3) Identification of the legal authorities under 

20 which the Administration or the Board may— 

21 (A) hire additional employees to conduct 

22 the concurrent processing described in para23 graph (2)(A); and 

24 (B) remove employees who are no longer 

25 required by the Administration or the Board 


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1 once the Administration and the Board are no 

2 longer processing any appeals of decisions on 

3 legacy claims. 

4 (4) An estimate of the amount of time the Ad5 ministration and the Board will require to hire addi6 tional employees as described in paragraph (3)(A) 

7 once funding has been made available for such pur8 pose, including a comparison of such estimate and 

9 the historical average time required by the Adminis10 tration and the Board to hire additional employees. 

11 (5) A description of the modifications to the in12 formation technology systems of the Administration 

13 and the Board that the Administration and the 

14 Board require to carry out the new appeals system, 

15 including cost estimates and a timeline for making 

16 the modifications. 

17 (6) An estimate of the office space the Adminis18 tration and the Board will require during each of the 

19 periods described in paragraph (2), including— 

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

21 Administration and the Board will require to 

22 acquire any additional office space to carry out 

23 processing of appeals of decisions on legacy 

24 claims and processing of appeals under the new 

25 appeals system; 


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1 (B) a comparison of the estimate under 

2 subparagraph (A) and the historical average 

3 time required by the Administration and the 

4 Board to acquire new office space; and 

5 (C) a plan for using telework to accommo6 date staff exceeding available office space, in7 cluding how the Administration and the Board 

8 will provide training and oversight with respect 

9 to such teleworking. 

10 (7) Projections for the productivity of individual 

11 employees at the Administration and the Board in 

12 carrying out tasks relating to the processing of ap13 peals of decisions on legacy claims and appeals 

14 under the new appeals system, taking into account 

15 the experience level of new employees and the en16 hanced notice requirements under section 5104(b) of 

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

18 2(e). 

19 (8) An outline of the outreach the Secretary ex20 pects to conduct to inform veterans, families of vet21 erans, survivors of veterans, veterans service organi22 zations, military service organizations, congressional 

23 caseworkers, advocates for veterans, and such other 

24 stakeholders as the Secretary considers appropriate 

25 about the new appeals system, including— 


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1 (A) a description of the resources required 

2 to conduct such outreach; and 

3 (B) timelines for completing such outreach. 

4 (9) Identification of and a timeline for— 

5 (A) any training that may be required as 

6 a result of hiring new employees to carry out 

7 the new appeals system or to process appeals of 

8 decisions on legacy claims; and 

9 (B) any retraining of existing employees 

10 that may be required to carry out such system 

11 or to process such claims. 

12 (10) Identification of the costs to the Depart13 ment of the training identified under paragraph (9) 

14 and any additional training staff and any additional 

15 training facilities that will be required to provide 

16 such training. 

17 (11) Timelines for updating any policy guid18 ance, Internet websites, and official forms that may 

19 be necessary to carry out the new appeals system, 

20 including— 

21 (A) identification of which offices and enti22 ties will be involved in efforts relating to such 

23 updating; and 

24 (B) historical information about how long 

25 similar update efforts have taken. 


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1 (12) A timeline, including interim milestones, 

2 for promulgating such regulations as may be nec3 essary to carry out the new appeals system and a 

4 comparison with historical averages for time re5 quired to promulgate regulations of similar com6 plexity and scope. 

7 (13) An outline of the circumstances under 

8 which claimants with pending appeals of decisions 

9 on legacy claims would be authorized to have their 

10 appeals reviewed under the new appeals system. 

11 (14) A delineation of the key goals and mile12 stones for reducing the number of pending appeals 

13 that are not processed under the new appeals sys14 tem, including the expected number of appeals, re15 mands, and hearing requests at the Administration 

16 and the Board each year, beginning with the one 

17 year period beginning on the date of the enactment 

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

19 pending before the Administration or the Board for 

20 a decision on a legacy claim. 

21 (15) A description of each risk factor associated 

22 with each element of the plan and a contingency 

23 plan to minimize each such risk. 

24 (c) REVIEW BY COMPTROLLER GENERAL OF THE

25 UNITED STATES.— 


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

2 the Comptroller General of the United States re3 ceives the plan required by subsection (a), the 

4 Comptroller General shall— 

5 (A) assess such plan; and 

6 (B) notify the appropriate committees of 

7 Congress of the findings of the Comptroller 

8 General with respect to the assessment con9 ducted under subparagraph (A). 

10 (2) ELEMENTS.—The assessment conducted 

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

12 (A) An assessment of whether the plan 

13 comports with sound planning practices. 

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

15 (C) Formulation of such recommendations 

16 as the Comptroller General considers appro17 priate. 

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

19 90 days after the date on which the Secretary submits 

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

21 once every 90 days thereafter until the applicability date 

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

23 once every 180 days thereafter for the 10-year period fol24 lowing such applicability date, the Secretary shall submit 

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1 troller General a report on the progress of the Secretary 

2 in carrying out the plan. 

3 (e) APPROPRIATE COMMITTEES OF CONGRESS DE4 FINED.—In this section, the term ‘‘appropriate commit5 tees of Congress’’ means— 

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

7 Committee on Appropriations of the Senate; and 

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

9 Committee on Appropriations of the House of Rep10 resentatives. 

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

12 DEVELOPMENT OF COMPREHENSIVE PLAN 

13 FOR PROCESSING OF LEGACY APPEALS AND 

14 SUPPORTING NEW APPEALS SYSTEM. 

15 (a) AUTHORIZATION.— 

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

17 Affairs may carry out such programs as the Sec18 retary considers appropriate to test any assumptions 

19 relied upon in developing the comprehensive plan re20 quired by section 3(a) and to test the feasibility and 

21 advisability of any facet of the new appeals system. 

22 (2) REPORTING REQUIRED.—Whenever the Sec23 retary determines, based on the conduct of a pro24 gram under paragraph (1), that legislative changes 

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1 retary shall submit to the Committee on Veterans’ 

2 Affairs of the Senate and the Committee on Vet3 erans’ Affairs of the House of Representatives notice 

4 of such determination. 

5 (b) DEPARTMENT OF VETERANS AFFAIRS PROGRAM

6 ON FULLY DEVELOPED APPEALS.— 

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

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

9 program to provide the option of an alternative ap10 peals process that shall more quickly determine such 

11 appeals in accordance with this subsection. 

12 (2) ELECTION.— 

13 (A) FILING.—In accordance with subpara14 graph (B), a claimant may elect to file a fully 

15 developed appeal under the program by filing 

16 with the Secretary all of the following: 

17 (i) The notice of disagreement under 

18 chapter 71 of title 38, United States Code, 

19 along with the written election of the 

20 claimant to have the appeal determined 

21 under the program. 

22 (ii) All evidence that the claimant be23 lieves is needed for the appeal as of the 

24 date of the filing. 


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1 (iii) A statement of the argument in 

2 support of the claim, if any. 

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

4 election under subparagraph (A) as part of the 

5 notice of disagreement filed by the claimant in 

6 accordance with subparagraph (A)(i). 

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

8 expiration of the period specified in paragraph 

9 (3)(C)(iii), ensure that an assessment is under10 taken of whether an appeal filed under subpara11 graph (A) of this paragraph satisfies the re12 quirements for appeal under the program and 

13 provide appropriate notification to the claimant 

14 of the results of that assessment. 

15 (D) REVERSION.— 

16 (i) ELECTED REVERSION.—At any 

17 time, a claimant who makes an election 

18 under subparagraph (A) may elect to re19 vert to the standard appeals process. Such 

20 a reversion shall be final. 

21 (ii) AUTOMATIC REVERSION.—A 

22 claimant described in clause (i), or a claim23 ant who makes an election under subpara24 graph (A) but is later determined to be in25 eligible for the program under paragraph 


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1 (1), shall revert to the standard appeals 

2 process without any penalty to the claim3 ant other than the loss of the docket num4 ber associated with the fully developed ap5 peal. 

6 (E) OUTREACH.—In providing claimants 

7 with notices of the determination of a claim 

8 during the period in which the program under 

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

10 conduct outreach as follows: 

11 (i) The Secretary shall provide to the 

12 claimant (and to the representative of 

13 record of the claimant, if any) information 

14 regarding— 

15 (I) the program, including the 

16 advantages and disadvantages of the 

17 program; 

18 (II) how to make an election 

19 under subparagraph (A); 

20 (III) the limitation on the use of 

21 new evidence described in subpara22 graph (C) of paragraph (3) and the 

23 development of information under 

24 subparagraph (D) of such paragraph; 


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1 (IV) the ability of the claimant to 

2 seek advice and education regarding 

3 such process from veterans service or4 ganizations, attorneys, and claims 

5 agents recognized under chapter 59 of 

6 title 38, United States Code; and 

7 (V) the circumstances under 

8 which the appeal will automatically re9 vert to the standard appeals process, 

10 including by making a request for a 

11 hearing. 

12 (ii) The Secretary shall collaborate, 

13 partner with, and give weight to the advice 

14 of the three veterans service organizations 

15 with the most members and such other 

16 stakeholders as the Secretary considers ap17 propriate to publish on the Internet 

18 website of the Department of Veterans Af19 fairs an online tutorial explaining the ad20 vantages and disadvantages of the pro21 gram. 

22 (3) TREATMENT BY DEPARTMENT AND

23 BOARD.— 


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

2 claimant to file a fully developed appeal pursu3 ant to paragraph (2)(A), the Secretary shall— 

4 (i) not provide the claimant with a 

5 statement of the case nor require the 

6 claimant to file a substantive appeal; and 

7 (ii) transfer jurisdiction over the fully 

8 developed appeal directly to the Board of 

9 Veterans’ Appeals. 

10 (B) DOCKET.— 

11 (i) IN GENERAL.—The Board of Vet12 erans’ Appeals shall— 

13 (I) maintain fully developed ap14 peals on a separate docket than 

15 standard appeals; 

16 (II) decide fully developed ap17 peals in the order that the fully devel18 oped appeals are received on the fully 

19 developed appeal docket; 

20 (III) except as provided by clause 

21 (ii), decide not more than one fully 

22 developed appeal for each four stand23 ard appeals decided; and 

24 (IV) to the extent practicable, de25 cide each fully developed appeal by 


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1 the date that is one year following the 

2 date on which the claimant files the 

3 notice of disagreement. 

4 (ii) ADJUSTMENT.—Beginning one 

5 year after the date on which the program 

6 commences, the Board may adjust the 

7 number of standard appeals decided for 

8 each fully developed appeal under clause 

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

10 adjustment is fair for both standard ap11 peals and fully developed appeals. 

12 (C) LIMITATION ON USE OF NEW EVI13 DENCE.— 

14 (i) IN GENERAL.—Except as provided 

15 by clauses (ii) and (iii)— 

16 (I) a claimant may not submit or 

17 identify to the Board of Veterans’ Ap18 peals any new evidence relating to a 

19 fully developed appeal after filing such 

20 appeal unless the claimant reverts to 

21 the standard appeals process pursuant 

22 to paragraph (2)(D); and 

23 (II) if a claimant submits or 

24 identifies any such new evidence, such 

25 submission or identification shall be 


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1 deemed to be an election to make such 

2 a reversion pursuant to paragraph 

3 (2)(D). 

4 (ii) EVIDENCE GATHERED BY

5 BOARD.—Clause (i) shall not apply to evi6 dence developed pursuant to subpara7 graphs (D) and (E). The Board shall con8 sider such evidence in the first instance 

9 without consideration by the Veterans Ben10 efits Administration. 

11 (iii) REPRESENTATIVE OF RECORD.— 

12 The representative of record of a claimant 

13 for appeals purposes, if any, shall be pro14 vided an opportunity to review the fully de15 veloped appeal of the claimant and submit 

16 any additional arguments or evidence that 

17 the representative determines necessary 

18 during a period specified by the Board for 

19 purposes of this subparagraph. 

20 (D) PROHIBITION ON REMAND FOR ADDI21 TIONAL DEVELOPMENT.—If the Board of Vet22 erans’ Appeals determines that a fully devel23 oped appeal requires Federal records, inde24 pendent medical opinions, or new medical ex25 aminations, the Board shall— 


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1 (i) in accordance with subparagraph 

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

3 to develop such records, opinions, or ex4 aminations in accordance with section 

5 5103A of title 38, United States Code; 

6 (ii) retain jurisdiction of the fully de7 veloped appeal without requiring a deter8 mination by the Veterans Benefits Admin9 istration based on such records, opinions, 

10 or examinations; 

11 (iii) ensure the claimant, and the rep12 resentative of record of a claimant, if any, 

13 receives a copy of such records, opinions, 

14 or examinations; and 

15 (iv) provide the claimant a period of 

16 90 days after the date of mailing such 

17 records, opinions, or examinations during 

18 which the claimant may provide the Board 

19 any additional evidence without requiring 

20 the claimant to make a reversion pursuant 

21 to paragraph (2)(D). 

22 (E) DEVELOPMENT UNIT.— 

23 (i) ESTABLISHMENT.—The Board of 

24 Veterans’ Appeals shall establish an office 

25 to develop Federal records, independent 


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1 medical opinions, and new medical exami2 nations pursuant to subparagraph (D)(i) 

3 that the Board determines necessary to de4 cide a fully developed appeal. 

5 (ii) REQUIREMENTS.—The Secretary 

6 shall— 

7 (I) ensure that the Veterans Ben8 efits Administration cooperates with 

9 the Board of Veterans’ Appeals in 

10 carrying out clause (i); and 

11 (II) transfer employees of the 

12 Veterans Benefits Administration 

13 who, prior to the enactment of this 

14 Act, were responsible for processing 

15 claims remanded by the Board of Vet16 erans’ Appeals to positions within the 

17 office of the Board established under 

18 clause (i) in a number the Secretary 

19 determines sufficient to carry out 

20 such subparagraph. 

21 (F) HEARINGS.—Notwithstanding section 

22 7107 of title 38, United States Code, the Sec23 retary may not provide hearings with respect to 

24 fully developed appeals under the program. If a 

25 claimant requests to hold a hearing pursuant to 


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1 such section 7107, such request shall be deemed 

2 to be an election to revert to the standard ap3 peals process pursuant to paragraph (2)(D). 

4 (4) DURATION; APPLICABILITY.— 

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

6 the Secretary may carry out the program dur7 ing such period as the Secretary considers ap8 propriate. 

9 (B) APPLICABILITY.—This section shall 

10 apply only to fully developed appeals that are 

11 filed during the period in which the program is 

12 carried out pursuant to subparagraph (A). 

13 (5) DEFINITIONS.—In this subsection: 

14 (A) COMPENSATION.—The term ‘‘com15 pensation’’ has the meaning given that term in 

16 section 101 of title 38, United States Code. 

17 (B) FULLY DEVELOPED APPEAL.—The 

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

19 of a claim for disability compensation that is— 

20 (i) filed by a claimant in accordance 

21 with paragraph (2)(A); and 

22 (ii) considered in accordance with this 

23 subsection. 

24 (C) STANDARD APPEAL.—The term 

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


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1 for disability compensation that is not a fully 

2 developed appeal. 

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

4 Veterans Affairs may not carry out a program under this 

5 section after the applicability date set forth in section 

6 2(x)(1). 

7 SEC. 5. PERIODIC PUBLICATION OF METRICS RELATING TO 

8 PROCESSING OF APPEALS BY DEPARTMENT 

9 OF VETERANS AFFAIRS. 

10 The Secretary of Veterans Affairs shall periodically 

11 publish on an Internet website of the Department of Vet12 erans Affairs the following: 

13 (1) With respect to the processing by the Sec14 retary of appeals under the new appeals system of 

15 decisions regarding claims for benefits under laws 

16 administered by the Secretary, the following: 

17 (A) For the Veterans Benefits Administra18 tion and, to the extent practicable, each re19 gional office of the Department of Veterans Af20 fairs, the number of— 

21 (i) supplemental claims under section 

22 5108 of title 38, United States Code, as 

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

24 and 


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1 (ii) requests for higher-level review 

2 under section 5104B of such title, as 

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

4 (B) The number of appeals on any docket 

5 maintained under section 7107 of such title, as 

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

7 (C) The average duration for processing 

8 claims and supplemental claims, disaggregated 

9 by regional office. 

10 (D) The average duration for processing 

11 requests for higher-level review under section 

12 5104B of such title, as added by section 2(g), 

13 disaggregated by regional office. 

14 (E) The average number of days that ap15 peals are pending on a non-hearing option dock16 et of the Board of Veterans’ Appeals main17 tained pursuant to section 7107 of such title, as 

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

19 maintained by the Board under such section 

20 that prohibits the submittal of additional evi21 dence. 

22 (F) The average number of days that ap23 peals are pending on dockets maintained under 

24 such section in which hearings are requested or 

25 submittal of additional evidence is allowed. 


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1 (G) The average number of days that an 

2 appeal is pending on any other docket main3 tained by the Board under such section. 

4 (H) In the case that the Secretary develops 

5 and implements a policy under section 7107(e) 

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

7 (i) the number of cases moved from 

8 one docket to another pursuant to such 

9 policy; 

10 (ii) the average time cases were pend11 ing prior to moving from one docket to an12 other; and 

13 (iii) the average time to adjudicate the 

14 cases after so moving. 

15 (I) The total number of remands to obtain 

16 advisory medical opinions under section 

17 5109(d) of title 38, United States Code, as 

18 added by section 2(j). 

19 (J) The average number of days between 

20 the date on which the Board remands a claim 

21 to obtain an advisory medical opinion under 

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

23 the date on which the advisory medical opinion 

24 is obtained. 


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1 (K) The average number of days between 

2 the date on which the Board remands a claim 

3 to obtain an advisory medical opinion under 

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

5 the date on which the agency of original juris6 diction issues a decision taking that advisory 

7 opinion into account. 

8 (L) The number of appeals that are grant9 ed, the number of appeals that are remanded, 

10 and the number of appeals that are denied by 

11 the Board disaggregated by docket. 

12 (M) The number of claimants each year 

13 that take action within the period set forth in 

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

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

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

17 status of the claimants taking the actions, such 

18 as whether the claimant is represented by a vet19 erans service organization, the claimant is rep20 resented by an attorney, or the claimant is tak21 ing such action pro se. 

22 (N) The total number of times on average 

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

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

25 date under such section, disaggregated by the 


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1 subparagraph of such section under which they 

2 file. 

3 (O) The average duration, from the filing 

4 of an initial claim until the claim is resolved 

5 and claimants no longer take any action to pro6 tect their effective date under section 

7 5110(a)(2) of such title, as so added— 

8 (i) of claims under the new appeals 

9 system, excluding legacy claims that opt in 

10 to the new appeals system; and 

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

12 new appeals system. 

13 (P) How frequently an action taken within 

14 one year to protect an effective date under sec15 tion 5110(a)(2) of such title, as so added, leads 

16 to additional grant of benefits, disaggregated by 

17 action taken. 

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

19 complete each segment of the claims process 

20 while claimants are protecting the effective date 

21 under such section, disaggregated by the time 

22 waiting for the claimant to take an action and 

23 the time waiting for the Secretary to take an 

24 action. 


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1 (R) The number and the average amount 

2 of retroactive awards of benefits from the Sec3 retary as a result of protected effective dates 

4 under such section, disaggregated by action 

5 taken. 

6 (S) The average number of times claim7 ants submit to the Secretary different claims 

8 with respect to same condition, such as an ini9 tial claim and a supplemental claim. 

10 (T) The number of cases each year in 

11 which a claimant inappropriately tried to take 

12 simultaneous actions, such as filing a supple13 mental claim while a higher-level review is 

14 pending, what actions the Secretary took in re15 sponse, and how long it took on average to take 

16 those actions. 

17 (U) In the case that the Secretary develops 

18 and implements a policy under section 

19 5104C(a)(2)(D) of such title, as amended by 

20 section 2(h)(1), the number of actions with21 drawn and new actions taken pursuant to such 

22 policy. 

23 (V) The number of times the Secretary re24 ceived evidence relating to an appeal or higher25 level review at a time not authorized under the 


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1 new appeals system, disaggregated by actions 

2 taken by the Secretary to deal with the evidence 

3 and how long on average it took to take those 

4 actions. 

5 (W) The number of errors committed by 

6 the Secretary in carrying out the Secretary’s 

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

8 United States Code, that were identified by 

9 higher-level review and by the Board, 

10 disaggregated by type of error, such as errors 

11 relating to private records and inadequate ex12 aminations, and a comparison with errors com13 mitted by the Secretary in carrying out such 

14 duty with respect to appeals of decisions on leg15 acy claims. 

16 (X) An assessment of the productivity of 

17 employees at the regional offices and at the 

18 Board, disaggregated by level of experience of 

19 the employees. 

20 (2) With respect to the processing by the Sec21 retary of appeals of decisions on legacy claims, the 

22 following: 

23 (A) The average duration of each segment 

24 of the appeals process, disaggregated by periods 

25 in which the Secretary is waiting for a claimant 


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1 to take an action and periods in which the 

2 claimant is waiting for the Secretary to take an 

3 action. 

4 (B) The frequency by which appeals lead 

5 to additional grant of benefits by the Secretary, 

6 disaggregated by whether the additional bene7 fits are a result of additional evidence added 

8 after the initial decision. 

9 (C) The number and average amount of 

10 retroactive awards of benefits resulting from an 

11 appeal. 

12 (D) The average duration from filing a leg13 acy claim with the Secretary until all appeals 

14 and remands relating to such legacy claim are 

15 completed. 

16 (E) The average number of times claim17 ants submit to the Secretary different claims 

18 with respect to same condition, such as an ini19 tial claim, new and material evidence, or a 

20 claim for an increase in benefits. 

21 (F) An assessment of the productivity of 

22 employees at the regional offices and at the 

23 Board, disaggregated by level of experience of 

24 the employees. 


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1 (G) The average number of days the dura2 tion of an appeal is extended because the Sec3 retary secured or attempted to secure an advi4 sory medical opinion under section 5109 of title 

5 38, United States Code, or section 7109 of such 

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

7 the enactment of this Act). 

8 (3) With respect to the processing by the Sec9 retary of appeals of decisions on legacy claims that 

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

11 (A) The cumulative number of such legacy 

12 claims. 

13 (B) The portion of work in the new ap14 peals system attributable to appeals of decisions 

15 on such legacy claims. 

16 (C) The average period such legacy claims 

17 were pending before opting in to the new ap18 peals system and the average period required to 

19 adjudicate such legacy claims on average after 

20 opting in— 

21 (i) with respect to claims at a regional 

22 office of the Department of Veterans Af23 fairs, disaggregated by— 


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1 (I) supplemental claims under 

2 section 5108 of title 38, United States 

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

4 (II) requests for higher-level re5 view under section 5104B of such 

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

7 (ii) with respect to appeals, 

8 disaggregated by docket of the Board 

9 maintained under section 7107 of such 

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

11 SEC. 6. DEFINITIONS. 

12 In this Act: 

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

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

15 United States Code. 

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

17 means a claim— 

18 (A) that was submitted to the Secretary of 

19 Veterans Affairs for a benefit under a law ad20 ministered by the Secretary; and 

21 (B) for which notice of a decision under 

22 section 5104 of title 38, United States Code, 

23 was provided by the Secretary before the date 

24 set forth in section 2(x). 


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

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

3 claimant elects to subject the claim to the new ap4 peals system pursuant to— 

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

6 (B) such other mechanism as the Secretary 

7 may prescribe for purposes of carrying out this 

8 Act and the amendments made by this Act. 

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

10 appeals system’’ means the set of processes and 

11 mechanisms by which the Secretary processes, pur12 suant to the authorities and requirements modified 

13 by section 2, claims for benefits under laws adminis14 tered by the Secretary. 

15 SECTION 1. SHORT TITLE. 

16 This Act may be cited as the ‘‘Veterans Appeals Im17 provement and Modernization Act of 2017’’. 

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

19 APPEALS OF DECISIONS REGARDING CLAIMS 

20 FOR BENEFITS UNDER LAWS ADMINISTERED 

21 BY SECRETARY OF VETERANS AFFAIRS. 

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

23 States Code, is amended by adding at the end the following 

24 new paragraphs: 


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

2 means the activity which entered the original deter3 mination with regard to a claim for benefits under 

4 laws administered by the Secretary. 

5 ‘‘(35) The term ‘relevant evidence’ means evi6 dence that tends to prove or disprove a matter in 

7 issue. 

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

9 claim for benefits under laws administered by the 

10 Secretary filed by a claimant who had previously 

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

12 same or similar basis.’’. 

13 (b) NOTICE REGARDING CLAIMS.—Section 5103(a) of 

14 such title is amended— 

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

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

17 paragraph (3), the’’; 

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

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

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

21 ‘‘or a supplemental claim;’’; and 

22 (3) by adding at the end the following new para23 graph: 

24 ‘‘(3) The requirement to provide notice under para25 graph (1) shall not apply with respect to a supplemental 


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1 claim that is filed within the timeframe set forth in sub2 paragraphs (B) and (D) of section 5110(a)(2) of this title.’’. 

3 (c) MODIFICATION OF RULE REGARDING DISALLOWED

4 CLAIMS.—Section 5103A(f) of such title is amended— 

5 (1) by striking ‘‘reopen’’ and inserting ‘‘readju6 dicate’’; and 

7 (2) by striking ‘‘material’’ and inserting ‘‘rel8 evant’’. 

9 (d) MODIFICATION OF DUTY TO ASSIST CLAIMANTS.— 

10 Section 5103A of such title is amended— 

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

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

13 (2) by inserting after subsection (d) the following 

14 new subsections: 

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

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

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

18 a law administered by the Secretary until the time that 

19 a claimant is provided notice of the agency of original juris20 diction’s decision with respect to such claim, or supple21 mental claim, under section 5104 of this title. 

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

23 shall not apply to higher-level review by the agency of origi24 nal jurisdiction, pursuant to section 5104B of this title, or 

25 to review on appeal by the Board of Veterans’ Appeals. 


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1 ‘‘(f) CORRECTION OF DUTY TO ASSIST ERRORS.—(1) 

2 If, during review of the agency of original jurisdiction deci3 sion under section 5104B of this title, the higher-level adju4 dicator identifies or learns of an error on the part of the 

5 agency of original jurisdiction to satisfy its duties under 

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

7 of original jurisdiction decision being reviewed, unless the 

8 Secretary may award the maximum benefit in accordance 

9 with this title based on the evidence of record, the higher10 level adjudicator shall return the claim for correction of 

11 such error and readjudication. 

12 ‘‘(2)(A) If the Board of Veterans’ Appeals, during re13 view on appeal of an agency of original jurisdiction deci14 sion, identifies or learns of an error on the part of the agen15 cy of original jurisdiction to satisfy its duties under this 

16 section, and that error occurred prior to the agency of origi17 nal jurisdiction decision on appeal, unless the Secretary 

18 may award the maximum benefit in accordance with this 

19 title based on the evidence of record, the Board shall remand 

20 the claim to the agency of original jurisdiction for correc21 tion of such error and readjudication. 

22 ‘‘(B) Remand for correction of such error may include 

23 directing the agency of original jurisdiction to obtain an 

24 advisory medical opinion under section 5109 of this title. 


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

2 imply that the Secretary, during the consideration of a 

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

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

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

6 respect to the claim.’’. 

7 (e) DECISIONS AND NOTICES OF DECISIONS.—Sub8 section (b) of section 5104 of such title is amended to read 

9 as follows: 

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

11 also include all of the following: 

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

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

14 the Secretary. 

15 ‘‘(3) A summary of the applicable laws and reg16 ulations. 

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

18 claimant. 

19 ‘‘(5) In the case of a denial, identification of ele20 ments not satisfied leading to the denial. 

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

22 evidence used in making the decision. 

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

24 that must be satisfied to grant service connection or 

25 the next higher level of compensation.’’. 


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1 (f) BINDING NATURE OF FAVORABLE FINDINGS.— 

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

3 amended by inserting after section 5104 the following 

4 new section: 

5 ‘‘§ 5104A. Binding nature of favorable findings 

6 ‘‘Any finding favorable to the claimant as described 

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

8 subsequent adjudicators within the Department, unless 

9 clear and convincing evidence is shown to the contrary to 

10 rebut such favorable finding.’’. 

11 (2) CLERICAL AMENDMENT.—The table of sec12 tions at the beginning of chapter 51 of such title is 

13 amended by inserting after the item relating to sec14 tion 5104 the following new item: 

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

15 (g) HIGHER-LEVEL REVIEW BY AGENCY OF ORIGINAL

16 JURISDICTION.— 

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

18 amended by subsection (f), is further amended by in19 serting after section 5104A, as added by such sub20 section, the following new section: 

21 ‘‘§ 5104B. Higher-level review by the agency of original 

22 jurisdiction 

23 ‘‘(a) IN GENERAL.—(1) A claimant may request a re24 view of the decision of the agency of original jurisdiction 


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

2 jurisdiction. 

3 ‘‘(2) The Secretary shall approve each request for re4 view under paragraph (1). 

5 ‘‘(b) TIME AND MANNER OF REQUEST.—(1) A request 

6 for higher-level review by the agency of original jurisdiction 

7 shall be— 

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

9 may prescribe; and 

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

11 agency of original jurisdiction’s decision. 

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

13 such review is requested by a higher-level adjudicator at the 

14 same office within the agency of original jurisdiction or by 

15 an adjudicator at a different office of the agency of original 

16 jurisdiction. The Secretary shall not deny such request for 

17 review by an adjudicator at a different office of the agency 

18 of original jurisdiction without good cause. 

19 ‘‘(c) DECISION.—Notice of a higher-level review deci20 sion under this section shall be provided in writing and 

21 shall include a general statement— 

22 ‘‘(1) reflecting whether evidence was not consid23 ered pursuant to subsection (d); and 


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1 ‘‘(2) noting the options available to the claimant 

2 to have the evidence described in paragraph (1), if 

3 any, considered by the Department. 

4 ‘‘(d) EVIDENTIARY RECORD FOR REVIEW.—The evi5 dentiary record before the higher-level adjudicator shall be 

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

7 jurisdiction decision being reviewed. 

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

9 the agency of original jurisdiction by a higher-level adjudi10 cator within the agency of original jurisdiction shall be de 

11 novo.’’. 

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

14 amended by subsection (f), is further amended by in15 serting after the item relating to section 5104A, as 

16 added by such subsection, the following new item: 

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

17 (h) OPTIONS FOLLOWING DECISION BY AGENCY OF

18 ORIGINAL JURISDICTION.— 

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

20 amended by subsection (g), is further amended by in21 serting after section 5104B, as added by such sub22 section, the following new section: 


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1 ‘‘§ 5104C. Options following decision by agency of 

2 original jurisdiction 

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

4 paragraph (2), in any case in which the Secretary renders 

5 a decision on a claim, the claimant may take any of the 

6 following actions on or before the date that is one year after 

7 the date on which the agency of original jurisdiction issues 

8 a decision with respect to that claim: 

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

10 section 5104B of this title. 

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

12 5108 of this title. 

13 ‘‘(C) File a notice of disagreement under section 

14 7105 of this title. 

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

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

17 set forth in that paragraph with respect to the same claim 

18 or same issue contained within the claim until— 

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

20 or notice of disagreement is adjudicated; or 

21 ‘‘(ii) the request for higher-level review, supple22 mental claim, or notice of disagreement is withdrawn. 

23 ‘‘(B) Nothing in this subsection shall prohibit a claim24 ant from taking any of the actions set forth in paragraph 

25 (1) in succession with respect to a claim or an issue con26 tained within the claim. 


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1 ‘‘(C) Nothing in this subsection shall prohibit a claim2 ant from taking different actions set forth in paragraph (1) 

3 with respect to different claims or different issues contained 

4 within a claim. 

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

6 appropriate, develop and implement a policy for claimants 

7 who— 

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

9 ‘‘(ii) wish to withdraw the action before the high10 er-level review, supplemental claim, or notice of dis11 agreement is adjudicated; and 

12 ‘‘(iii) in lieu of such action take a different ac13 tion under paragraph (1). 

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

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

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

17 on which the agency of original jurisdiction issues a deci18 sion with respect to that claim, the claimant may file a 

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

20 (2) CLERICAL AMENDMENT.—The table of sec21 tions at the beginning of chapter 51 of such title, as 

22 amended by subsection (g), is further amended by in23 serting after the item relating to section 5104B, as 

24 added by such subsection, the following new item: 

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

25 (i) SUPPLEMENTAL CLAIMS.— 


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

2 amended to read as follows: 

3 ‘‘§ 5108. Supplemental claims 

4 ‘‘(a) IN GENERAL.—If new and relevant evidence is 

5 presented or secured with respect to a supplemental claim, 

6 the Secretary shall readjudicate the claim taking into con7 sideration all of the evidence of record. 

8 ‘‘(b) DUTY TO ASSIST.—(1) If a claimant, in connec9 tion with a supplemental claim, reasonably identifies exist10 ing records, whether or not in the custody of a Federal de11 partment or agency, the Secretary shall assist the claimant 

12 in obtaining the records in accordance with section 5103A 

13 of this title. 

14 ‘‘(2) Assistance under paragraph (1) shall not be 

15 predicated upon a finding that new and relevant evidence 

16 has been presented or secured.’’. 

17 (2) RULE OF CONSTRUCTION.—Section 5108 of 

18 such title, as amended by paragraph (1), shall not be 

19 construed to impose a higher evidentiary threshold 

20 than the new and material evidence standard that 

21 was in effect pursuant to such section on the day be22 fore the date of the enactment of this Act. 

23 (3) CLERICAL AMENDMENT.—The table of sec24 tions at the beginning of chapter 51 of such title is 


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1 amended by striking the item relating to section 5108 

2 and inserting the following new item: 

‘‘5108. Supplemental claims.’’. 

3 (j) REMAND TO OBTAIN ADVISORY MEDICAL OPIN4 ION.—Section 5109 of such title is amended by adding at 

5 the end the following new subsection: 

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

7 a claim to direct the agency of original jurisdiction to ob8 tain an advisory medical opinion from an independent 

9 medical expert under this section if the Board finds that 

10 the Veterans Benefits Administration should have exercised 

11 its discretion to obtain such an opinion. 

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

13 questions to be posed to the independent medical expert pro14 viding the advisory medical opinion.’’. 

15 (k) RESTATEMENT OF REQUIREMENT FOR EXPEDITED

16 TREATMENT OF RETURNED AND REMANDED CLAIMS.— 

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

18 amended to read as follows: 

19 ‘‘§ 5109B. Expedited treatment of returned and re20 manded claims 

21 ‘‘The Secretary shall take such actions as may be nec22 essary to provide for the expeditious treatment by the Vet23 erans Benefits Administration of any claim that is returned 

24 by a higher-level adjudicator under section 5104B of this 

25 title or remanded by the Board of Veterans’ Appeals.’’. 


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1 (2) CLERICAL AMENDMENT.—The table of sec2 tions at the beginning of chapter 51 of such title is 

3 amended by striking the item relating to section 

4 5109B and inserting the following new item: 

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

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

6 title 38, United States Code, is amended— 

7 (1) by amending subsection (a) to read as fol8 lows: 

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

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

11 claim, or a supplemental claim, of compensation, depend12 ency and indemnity compensation, or pension, shall be 

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

14 earlier than the date of receipt of application therefor. 

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

16 an award under this section, the date of application shall 

17 be considered the date of the filing of the initial application 

18 for a benefit if the claim is continuously pursued by filing 

19 any of the following, either alone or in succession: 

20 ‘‘(A) A request for higher-level review under sec21 tion 5104B of this title on or before the date that is 

22 one year after the date on which the agency of origi23 nal jurisdiction issues a decision. 

24 ‘‘(B) A supplemental claim under section 5108 of 

25 this title on or before the date that is one year after 


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1 the date on which the agency of original jurisdiction 

2 issues a decision. 

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

4 date that is one year after the date on which the agen5 cy of original jurisdiction issues a decision. 

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

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

8 the date on which the Board of Veterans’ Appeals 

9 issues a decision. 

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

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

12 the date on which the Court of Appeals for Veterans 

13 Claims issues a decision. 

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

15 supplemental claims received more than one year after the 

16 date on which the agency of original jurisdiction issued a 

17 decision or the Board of Veterans’ Appeals issued a deci18 sion, the effective date shall be fixed in accordance with the 

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

20 of the supplemental claim.’’; and 

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

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

23 ‘‘readjudicated’’; 

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

25 ‘‘relevant’’; and 


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

2 ‘‘readjudication’’. 

3 (m) DEFINITION OF AWARD OR INCREASED AWARD

4 FOR PURPOSES OF PROVISIONS RELATING TO COMMENCE5 MENT OF PERIOD OF PAYMENT.—Section 5111(d)(1) of 

6 such title is amended by striking ‘‘or reopened award’’ and 

7 inserting ‘‘award or award based on a supplemental 

8 claim’’. 

9 (n) MODIFICATION OF LIMITATION ON FEES ALLOW10 ABLE FOR REPRESENTATION.—Section 5904(c) of such title 

11 is amended, in paragraphs (1) and (2), by striking ‘‘notice 

12 of disagreement is filed’’ both places it appears and insert13 ing ‘‘claimant is provided notice of the agency of original 

14 jurisdiction’s initial decision under section 5104 of this 

15 title’’. 

16 (o) CLARIFICATION OF BOARD OF VETERANS’ APPEALS

17 REFERRAL REQUIREMENTS AFTER ORDER FOR RECONSID18 ERATION OF DECISIONS.—Section 7103(b)(1) of title 38, 

19 United States Code, is amended by striking ‘‘heard’’ both 

20 places it appears and inserting ‘‘decided’’. 

21 (p) CONFORMING AMENDMENT RELATING TO READJU22 DICATION.—Section 7104(b) of such title is amended by 

23 striking ‘‘reopened’’ and inserting ‘‘readjudicated’’. 

24 (q) MODIFICATION OF PROCEDURES FOR APPEALS TO

25 BOARD OF VETERANS’ APPEALS.— 


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

2 United States Code, is amended— 

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

4 sentence and inserting ‘‘Appellate review shall be 

5 initiated by the filing of a notice of disagreement 

6 in the form prescribed by the Secretary.’’; 

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

8 follows: 

9 ‘‘(b)(1)(A) Except in the case of simultaneously con10 tested claims, a notice of disagreement shall be filed within 

11 one year from the date of the mailing of notice of the deci12 sion of the agency of original jurisdiction pursuant to sec13 tion 5104, 5104B, or 5108 of this title. 

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

15 expiration of the one-year period shall be accepted as timely 

16 filed. 

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

18 notice of disagreement shall be decided by the Board. 

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

20 shall identify the specific determination with which the 

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

22 claimant’s legal guardian, or such accredited representa23 tive, attorney, or authorized agent as may be selected by 

24 the claimant or legal guardian. 


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1 ‘‘(B) Not more than one recognized organization, at2 torney, or agent may be recognized at any one time in the 

3 prosecution of a claim. 

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

5 Board. 

6 ‘‘(3) The notice of disagreement shall indicate whether 

7 the claimant requests— 

8 ‘‘(A) a hearing before the Board, which shall in9 clude an opportunity to submit evidence in accord10 ance with section 7113(b) of this title; 

11 ‘‘(B) an opportunity to submit additional evi12 dence without a hearing before the Board, which shall 

13 include an opportunity to submit evidence in accord14 ance with section 7113(c) of this title; or 

15 ‘‘(C) a review by the Board without a hearing or 

16 the submittal of additional evidence. 

17 ‘‘(4) The Secretary shall develop a policy to permit 

18 a claimant to modify the information identified in the no19 tice of disagreement after the notice of disagreement has 

20 been filed under this section pursuant to such requirements 

21 as the Secretary may prescribe.’’; 

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

23 follows: 

24 ‘‘(c) If no notice of disagreement is filed in accordance 

25 with this chapter within the prescribed period, the action 


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1 or decision of the agency of original jurisdiction shall be2 come final and the claim shall not thereafter be readjudi3 cated or allowed, except— 

4 ‘‘(1) in the case of a readjudication or allowance 

5 pursuant to a higher-level review that was requested 

6 in accordance with section 5104B of this title; 

7 ‘‘(2) as may otherwise be provided by section 

8 5108 of this title; or 

9 ‘‘(3) as may otherwise be provided in such regu10 lations as are consistent with this title.’’; 

11 (D) by striking subsection (d) and inserting 

12 the following new subsection (d): 

13 ‘‘(d) The Board may dismiss any appeal which fails 

14 to identify the specific determination with which the claim15 ant disagrees.’’; 

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

17 (F) in the section heading, by striking ‘‘no18 tice of disagreement and’’. 

19 (2) CLERICAL AMENDMENT.—The table of sec20 tions at the beginning of chapter 71 of such title is 

21 amended by striking the item relating to section 7105 

22 and inserting the following new item: 

‘‘7105. Filing of appeal.’’. 

23 (r) MODIFICATION OF PROCEDURES AND REQUIRE24 MENTS FOR SIMULTANEOUSLY CONTESTED CLAIMS.—SubVerDate Sep 11 2014 22:42 Jul 10, 2017 Jkt 069200 PO 00000 Frm 00075 Fmt 6652 Sfmt 6203 E:\BILLS\S1024.RS S1024

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1 section (b) of section 7105A of such title is amended to read 

2 as follows: 

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

4 shall be communicated to the other party or parties in in5 terest and a period of thirty days shall be allowed for filing 

6 a brief or argument in response thereto. 

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

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

9 shall constitute sufficient evidence of notice.’’. 

10 (s) REPEAL OF PROCEDURES FOR ADMINISTRATIVE

11 APPEALS.— 

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

13 amended by striking section 7106. 

14 (2) CLERICAL AMENDMENT.—The table of sec15 tions at the beginning of chapter 71 of such title is 

16 amended by striking the item relating to section 7106. 

17 (t) MODIFICATIONS RELATING TO APPEALS: DOCKETS; 

18 HEARINGS.—Section 7107 of such title is amended to read 

19 as follows: 

20 ‘‘§ 7107. Appeals: dockets; hearings 

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

22 Board shall maintain at least two separate dockets. 

23 ‘‘(2) The Board may not maintain more than two sep24 arate dockets unless the Board notifies the Committee on 

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1 erans’ Affairs of the House of Representatives of any addi2 tional docket, including a justification for maintaining 

3 such additional docket. 

4 ‘‘(3)(A) The Board may assign to each docket main5 tained under paragraph (1) such cases as the Board con6 siders appropriate, except that cases described in clause (i) 

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

8 which cases described in clause (ii) of such paragraph are 

9 assigned. 

10 ‘‘(B) Cases described in this paragraph are the fol11 lowing: 

12 ‘‘(i) Cases in which no Board hearing is re13 quested. 

14 ‘‘(ii) Cases in which a Board hearing is re15 quested in the notice of disagreement. 

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

17 before the Board will be decided in regular order according 

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

19 by the Board. 

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

21 one of the dockets of the Board maintained under subsection 

22 (a) may, for cause shown, be advanced on motion for earlier 

23 consideration and determination. 

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

25 grounds upon which the motion is based. 


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

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

3 general application affecting other claims; 

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

5 severe financial hardship; or 

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

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

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

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

10 subsection (a) that may include a hearing, in which a hear11 ing is requested in the notice of disagreement, the Board 

12 shall notify the appellant whether a Board hearing will be 

13 held— 

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

15 ‘‘(B) by picture and voice transmission at a fa16 cility of the Department where the Secretary has pro17 vided suitable facilities and equipment to conduct 

18 such hearings. 

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

20 Board’s principal location as described in subparagraph 

21 (A) of paragraph (1), the appellant may alternatively re22 quest a hearing as described in subparagraph (B) of such 

23 paragraph. If so requested, the Board shall grant such re24 quest. 


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

2 and voice transmission as described in subparagraph (B) 

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

4 a hearing as described in subparagraph (A) of such para5 graph. If so requested, the Board shall grant such request. 

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

7 shall be construed to preclude the screening of cases for pur8 poses of— 

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

10 decisional purposes; or 

11 ‘‘(2) the development, or attempted development, 

12 of a record found to be inadequate for decisional pur13 poses. 

14 ‘‘(e) POLICY ON CHANGING DOCKETS.—The Secretary 

15 shall develop and implement a policy allowing an appellant 

16 to move the appellant’s case from one docket to another 

17 docket.’’. 

18 (u) REPEAL OF CERTAIN AUTHORITY FOR INDE19 PENDENT MEDICAL OPINIONS.— 

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

21 repealed. 

22 (2) CONFORMING AMENDMENT.—Section 

23 5701(b)(1) of such title is amended by striking ‘‘or 

24 7109’’. 


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1 (3) 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 7109. 

4 (v) CLARIFICATION OF PROCEDURES FOR REVIEW OF

5 DECISIONS ON GROUNDS OF CLEAR AND UNMISTAKABLE

6 ERROR.—Section 7111(e) of such title is amended by strik7 ing ‘‘, without referral to any adjudicative or hearing offi8 cial acting on behalf of the Secretary’’. 

9 (w) EVIDENTIARY RECORD BEFORE BOARD OF VET10 ERANS’ APPEALS.— 

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

12 amended by adding at the end the following new sec13 tion: 

14 ‘‘§ 7113. Evidentiary record before the Board of Vet15 erans’ Appeals 

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

17 ADDITIONAL EVIDENCE.—For cases in which a hearing be18 fore the Board of Veterans’ Appeals is not requested in the 

19 notice of disagreement and no request was made to submit 

20 evidence, the evidentiary record before the Board shall be 

21 limited to the evidence of record at the time of the decision 

22 of the agency of original jurisdiction on appeal. 

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

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

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


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1 evidentiary record before the Board shall be limited to the 

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

3 of original jurisdiction on appeal. 

4 ‘‘(2) The evidentiary record before the Board for cases 

5 described in paragraph (1) shall include each of the fol6 lowing, which the Board shall consider in the first instance: 

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

8 his or her representative, if any, at the Board hear9 ing. 

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

11 his or her representative, if any, within 90 days fol12 lowing the Board hearing. 

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

14 WITH A REQUEST FOR ADDITIONAL EVIDENCE.—(1) Ex15 cept as provided in paragraph (2), for cases in which a 

16 hearing is not requested in the notice of disagreement but 

17 an opportunity to submit evidence is requested, the evi18 dentiary record before the Board shall be limited to the evi19 dence considered by the agency of original jurisdiction in 

20 the decision on appeal. 

21 ‘‘(2) The evidentiary record before the Board for cases 

22 described in paragraph (1) shall include each of the fol23 lowing, which the Board shall consider in the first instance: 


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

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

3 disagreement. 

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

5 his or her representative, if any, within 90 days fol6 lowing receipt of the notice of disagreement.’’. 

7 (2) NOTIFICATION WHEN EVIDENCE NOT CONSID8 ERED.—Section 7104(d) of such title is amended— 

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

10 and inserting a semicolon; 

11 (B) by redesignating paragraph (2) as 

12 paragraph (3); and 

13 (C) by inserting after paragraph (1) the fol14 lowing new paragraph (2): 

15 ‘‘(2) a general statement— 

16 ‘‘(A) reflecting whether evidence was not 

17 considered in making the decision because the 

18 evidence was received at a time when not per19 mitted under section 7113 of this title; and 

20 ‘‘(B) noting such options as may be avail21 able for having the evidence considered by the 

22 Department; and’’. 

23 (3) CLERICAL AMENDMENT.—The table of sec24 tions at the beginning of chapter 71 of such title is 


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1 amended by inserting after the item relating to sec2 tion 7112 the following new item: 

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

3 (x) APPLICABILITY.— 

4 (1) IN GENERAL.—Except as otherwise provided 

5 in this subsection, the amendments made by this sec6 tion shall apply to all claims for which notice of a 

7 decision under section 5104 of title 38, United States 

8 Code, is provided by the Secretary of Veterans Affairs 

9 on or after the later of— 

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

11 of the enactment of this Act; and 

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

13 on which the Secretary of Veterans Affairs sub14 mits to the appropriate committees of Con15 gress— 

16 (i) a certification that the Secretary 

17 confirms, without delegation, that the De18 partment of Veterans Affairs has the re19 sources, personnel, office space, procedures, 

20 and information technology required— 

21 (I) to carry out the new appeals 

22 system; 

23 (II) to timely address appeals 

24 under the new appeals system; and 


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1 (III) to timely address appeals of 

2 decisions on legacy claims; and 

3 (ii) a summary of the expectations for 

4 performance outcomes that the Secretary 

5 used in making the certification under 

6 clause (i)(III) and a comparison of such ex7 pected performance outcomes with actual 

8 performance outcomes with respect to ap9 peals of legacy claims before the effective 

10 date of the new appeals system. 

11 (2) COLLABORATION.—In determining whether 

12 and when to make a certification under paragraph 

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

14 with, and give weight to the advice of veterans service 

15 organizations and such other stakeholders as the Sec16 retary considers appropriate. 

17 (3) EARLY APPLICABILITY.—The Secretary may 

18 apply the new appeals system to a claim with respect 

19 to which the claimant— 

20 (A) receives a notice of a decision under sec21 tion 5104 of such title after the date of the enact22 ment of this Act and before the applicability date 

23 set forth in paragraph (1); and 

24 (B) elects to subject the claim to the new ap25 peals system. 


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1 (4) PHASED ROLLOUT.—The Secretary may 

2 begin implementation of the new appeals system in 

3 phases, with the first phase of such phased implemen4 tation beginning on the applicability date set forth in 

5 paragraph (1). 

6 (5) TREATMENT OF LEGACY CLAIMS.—With re7 spect to legacy claims, upon the issuance to a claim8 ant of a statement of the case or supplemental state9 ment of the case occurring on or after the applica10 bility date specified in paragraph (1), a claimant 

11 may elect to participate in the new appeals system. 

12 (6) PUBLICATION OF APPLICABILITY DATE.—Not 

13 later than the date on which the new appeals system 

14 goes into effect (or the first phase of the new appeals 

15 system goes into effect under paragraph (4), as the 

16 case may be), the Secretary shall publish in the Fed17 eral Register such date. 

18 (7) DEFINITIONS.—In this subsection: 

19 (A) APPROPRIATE COMMITTEES OF CON20 GRESS.—The term ‘‘appropriate committees of 

21 Congress’’ means— 

22 (i) the Committee on Veterans’ Affairs 

23 and the Committee on Appropriations of the 

24 Senate; and 


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1 (ii) the Committee on Veterans’ Affairs 

2 and the Committee on Appropriations of the 

3 House of Representatives. 

4 (B) VETERANS SERVICE ORGANIZATION.— 

5 The term ‘‘veterans service organization’’ means 

6 any organization recognized by the Secretary for 

7 the representation of veterans under section 5902 

8 of title 38, United States Code. 

9 (y) RULE OF CONSTRUCTION.—Nothing in this section 

10 or any of the amendments made by this section shall be 

11 construed to limit the ability of a claimant to request a 

12 revision of a decision under section 5109A or 7111 of title 

13 38, United States Code. 

14 SEC. 3. COMPREHENSIVE PLAN FOR PROCESSING OF LEG15 ACY APPEALS AND IMPLEMENTING NEW AP16 PEALS SYSTEM. 

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

18 the date of the enactment of this Act, the Secretary of Vet19 erans Affairs shall submit to the appropriate committees 

20 of Congress and the Comptroller General of the United 

21 States a comprehensive plan for— 

22 (1) the processing of appeals of decisions on leg23 acy claims that the Secretary considers pending; 

24 (2) implementing the new appeals system; 


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1 (3) timely processing, under the new appeals sys2 tem, of— 

3 (A) supplemental claims under section 5108 

4 of title 38, United States Code, as amended by 

5 section 2(i); 

6 (B) requests for higher-level review under 

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

8 2(g); and 

9 (C) appeals on any docket maintained 

10 under section 7107 of such title, as amended by 

11 section 2(t); and 

12 (4) monitoring the implementation of the new 

13 appeals system, including metrics and goals— 

14 (A) to track the progress of the implementa15 tion; 

16 (B) to evaluate the efficiency and effective17 ness of the implementation; and 

18 (C) to identify potential issues relating to 

19 the implementation. 

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

21 shall include, at a minimum, the following: 

22 (1) Delineation of the total resource requirements 

23 of the Veterans Benefits Administration and the 

24 Board of Veterans’ Appeals, disaggregated by re25 sources required to implement and administer the 


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1 new appeals system and resources required to address 

2 the appeals of decisions on legacy claims. 

3 (2) Delineation of the personnel requirements of 

4 the Administration and the Board, including staffing 

5 levels during the— 

6 (A) period in which the Administration and 

7 the Board are concurrently processing— 

8 (i) appeals of decisions on legacy 

9 claims; and 

10 (ii) appeals of decisions on non-legacy 

11 claims under the new appeals system; and 

12 (B) the period during which the Adminis13 tration and the Board are no longer processing 

14 any appeals of decisions on legacy claims. 

15 (3) Identification of the legal authorities under 

16 which the Administration or the Board may— 

17 (A) hire additional employees to conduct the 

18 concurrent processing described in paragraph 

19 (2)(A); and 

20 (B) remove employees who are no longer re21 quired by the Administration or the Board once 

22 the Administration and the Board are no longer 

23 processing any appeals of decisions on legacy 

24 claims. 


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1 (4) An estimate of the amount of time the Ad2 ministration and the Board will require to hire addi3 tional employees as described in paragraph (3)(A) 

4 once funding has been made available for such pur5 pose, including a comparison of such estimate and the 

6 historical average time required by the Administra7 tion and the Board to hire additional employees. 

8 (5) A description of the amount of training and 

9 experience that will be required of individuals con10 ducting higher-level reviews under section 5104B of 

11 title 38, United States Code, as added by section 2(g). 

12 (6) An estimate of the percentage of higher-level 

13 adjudicators who will be employees of the Department 

14 of Veterans Affairs who were Decision Review Officers 

15 on the day before the new appeals system takes effect 

16 or had experience, as of such date, comparable to that 

17 of one who was a Decision Review Officer. 

18 (7) A description of the functions that will be 

19 performed after the date on which the new appeals 

20 system takes effect by Decision Review Officers who 

21 were Decision Review Officers on the day before the 

22 date the new appeals system takes effect. 

23 (8) 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 the 


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1 new appeals system or to process appeals of deci2 sions 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 (9) Identification of the costs to the Department 

7 of Veterans Affairs of the training identified under 

8 paragraph (8) and any additional training staff and 

9 any additional training facilities that will be re10 quired to provide such training. 

11 (10) A description of the modifications to the in12 formation technology systems of the Administration 

13 and the Board that the Administration and the Board 

14 require to carry out the new appeals system, includ15 ing cost estimates and a timeline for making the 

16 modifications. 

17 (11) An estimate of the office space the Adminis18 tration and the Board will require during each of the 

19 periods described in paragraph (2), including— 

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

21 Administration and the Board will require to 

22 acquire any additional office space to carry out 

23 processing of appeals of decisions on legacy 

24 claims and processing of appeals under the new 

25 appeals system; 


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1 (B) a comparison of the estimate under sub2 paragraph (A) and the historical average time 

3 required by the Administration and the Board to 

4 acquire new office space; and 

5 (C) a plan for using telework to accommo6 date staff exceeding available office space, includ7 ing how the Administration and the Board will 

8 provide training and oversight with respect to 

9 such teleworking. 

10 (12) Projections for the productivity of indi11 vidual employees at the Administration and the 

12 Board in carrying out tasks relating to the processing 

13 of appeals of decisions on legacy claims and appeals 

14 under the new appeals system, taking into account 

15 the experience level of new employees and the en16 hanced notice requirements under section 5104(b) of 

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

18 2(e). 

19 (13) An outline of the outreach the Secretary ex20 pects to conduct to inform veterans, families of vet21 erans, survivors of veterans, veterans service organiza22 tions, military service organizations, congressional 

23 caseworkers, advocates for veterans, and such other 

24 stakeholders as the Secretary considers appropriate 

25 about the new appeals system, including— 


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1 (A) a description of the resources required 

2 to conduct such outreach; and 

3 (B) timelines for conducting such outreach. 

4 (14) Timelines for updating any policy guid5 ance, Internet websites, and official forms that may 

6 be necessary to carry out the new appeals system, in7 cluding— 

8 (A) identification of which offices and enti9 ties will be involved in efforts relating to such 

10 updating; and 

11 (B) historical information about how long 

12 similar update efforts have taken. 

13 (15) A timeline, including interim milestones, 

14 for promulgating such regulations as may be nec15 essary to carry out the new appeals system and a 

16 comparison with historical averages for time required 

17 to promulgate regulations of similar complexity and 

18 scope. 

19 (16) An outline of the circumstances under which 

20 claimants with pending appeals of decisions on legacy 

21 claims would be authorized to have their appeals re22 viewed under the new appeals system. 

23 (17) A delineation of the key goals and mile24 stones for reducing the number of pending appeals 

25 that are not processed under the new appeals system, 


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1 including the expected number of appeals, remands, 

2 and hearing requests at the Administration and the 

3 Board each year, beginning with the one year period 

4 beginning on the date of the enactment of this Act, 

5 until there are no longer any appeals pending before 

6 the Administration or the Board for a decision on a 

7 legacy claim. 

8 (18) A description of each risk factor associated 

9 with each element of the plan and a contingency plan 

10 to minimize each such risk. 

11 (c) REVIEW BY COMPTROLLER GENERAL OF THE

12 UNITED STATES.— 

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

14 the Comptroller General of the United States receives 

15 the plan required by subsection (a), the Comptroller 

16 General shall— 

17 (A) assess such plan; and 

18 (B) notify the appropriate committees of 

19 Congress of the findings of the Comptroller Gen20 eral with respect to the assessment conducted 

21 under subparagraph (A). 

22 (2) ELEMENTS.—The assessment conducted 

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

24 (A) An assessment of whether the plan com25 ports with sound planning practices. 


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

2 (C) Formulation of such recommendations 

3 as the Comptroller General considers appro4 priate. 

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

6 90 days after the date on which the Secretary submits the 

7 plan under subsection (a), not less frequently than once 

8 every 90 days thereafter until the applicability date set 

9 forth in section 2(x)(1), and not less frequently than once 

10 every 180 days thereafter for the seven-year period following 

11 such applicability date, the Secretary shall submit to the 

12 appropriate committees of Congress and the Comptroller 

13 General a report on the progress of the Secretary in car14 rying out the plan and what steps, if any, the Secretary 

15 has taken to address any recommendations formulated by 

16 the Comptroller General pursuant to subsection (c)(2)(C). 

17 (e) PUBLICATION.—The Secretary shall make available 

18 to the public on an Internet website of the Department of 

19 Veterans Affairs— 

20 (1) the plan required by subsection (a); and 

21 (2) the periodic progress reports required by sub22 section (d). 

23 (f) APPROPRIATE COMMITTEES OF CONGRESS DE24 FINED.—In this section, the term ‘‘appropriate committees 

25 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 Af12 fairs may carry out such programs as the Secretary 

13 considers appropriate to test any assumptions relied 

14 upon in developing the comprehensive plan required 

15 by section 3(a) and to test the feasibility and advis16 ability of any facet of the new appeals system. 

17 (2) REPORTING REQUIRED.—Whenever the Sec18 retary determines, based on the conduct of a program 

19 under paragraph (1), that legislative changes to the 

20 new appeals system are necessary, the Secretary shall 

21 submit to the Committee on Veterans’ Affairs of the 

22 Senate and the Committee on Veterans’ Affairs of the 

23 House of Representatives notice of such determina24 tion. 


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1 (b) DEPARTMENT OF VETERANS AFFAIRS PROGRAM ON

2 FULLY DEVELOPED APPEALS.— 

3 (1) IN GENERAL.—The Secretary of Veterans Af4 fairs may, under subsection (a)(1), carry out a pro5 gram to provide the option of an alternative appeals 

6 process that shall more quickly determine such ap7 peals 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 claim16 ant to have the appeal determined under the 

17 program. 

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

20 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 ex4 piration 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 require8 ments for appeal under the program and provide 

9 appropriate notification to the claimant of the 

10 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 revert 

15 to the standard appeals process. Such a re16 version shall be final. 

17 (ii) AUTOMATIC REVERSION.—A claim18 ant described in clause (i), or a claimant 

19 who makes an election under subparagraph 

20 (A) but is later determined to be ineligible 

21 for the program under paragraph (1), shall 

22 revert to the standard appeals process with23 out any penalty to the claimant other than 

24 the loss of the docket number associated with 

25 the fully developed appeal. 


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1 (E) OUTREACH.—In providing claimants 

2 with notices of the determination of a claim dur3 ing the period in which the program under para4 graph (1) is carried out, the Secretary shall con5 duct outreach as follows: 

6 (i) The Secretary shall provide to the 

7 claimant (and to the representative of 

8 record of the claimant, if any) information 

9 regarding— 

10 (I) the program, including the ad11 vantages and disadvantages of the pro12 gram; 

13 (II) how to make an election 

14 under subparagraph (A); 

15 (III) the limitation on the use of 

16 new evidence described in subpara17 graph (C) of paragraph (3) and the de18 velopment of information under sub19 paragraph (D) of such paragraph; 

20 (IV) the ability of the claimant to 

21 seek advice and education regarding 

22 such process from veterans service or23 ganizations, attorneys, and claims 

24 agents recognized under chapter 59 of 

25 title 38, United States Code; and 


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1 (V) the circumstances under which 

2 the appeal will automatically revert to 

3 the standard appeals process, including 

4 by making a request for a hearing. 

5 (ii) The Secretary shall collaborate, 

6 partner with, and give weight to the advice 

7 of the three veterans service organizations 

8 with the most members and such other 

9 stakeholders as the Secretary considers ap10 propriate to publish on the Internet website 

11 of the Department of Veterans Affairs an 

12 online tutorial explaining the advantages 

13 and disadvantages of the program. 

14 (3) TREATMENT BY DEPARTMENT AND BOARD.— 

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

16 claimant to file a fully developed appeal pursu17 ant to paragraph (2)(A), the Secretary shall— 

18 (i) not provide the claimant with a 

19 statement of the case nor require the claim20 ant to file a substantive appeal; and 

21 (ii) transfer jurisdiction over the fully 

22 developed appeal directly to the Board of 

23 Veterans’ Appeals. 

24 (B) DOCKET.— 


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1 (i) IN GENERAL.—The Board of Vet2 erans’ Appeals shall— 

3 (I) maintain fully developed ap4 peals on a separate docket than stand5 ard appeals; 

6 (II) decide fully developed appeals 

7 in the order that the fully developed 

8 appeals are received on the fully devel9 oped appeal docket; 

10 (III) except as provided by clause 

11 (ii), decide not more than one fully de12 veloped appeal for each four standard 

13 appeals decided; and 

14 (IV) to the extent practicable, de15 cide each fully developed appeal by the 

16 date that is one year following the date 

17 on which the claimant files the notice 

18 of disagreement. 

19 (ii) ADJUSTMENT.—Beginning one 

20 year after the date on which the program 

21 commences, the Board may adjust the num22 ber of standard appeals decided for each 

23 fully developed appeal under clause (i)(III) 

24 if the Board determines that such adjustVerDate Sep 11 2014 22:42 Jul 10, 2017 Jkt 069200 PO 00000 Frm 00100 Fmt 6652 Sfmt 6203 E:\BILLS\S1024.RS S1024

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1 ment is fair for both standard appeals and 

2 fully developed appeals. 

3 (C) LIMITATION ON USE OF NEW EVI4 DENCE.— 

5 (i) IN GENERAL.—Except as provided 

6 by clauses (ii) and (iii)— 

7 (I) a claimant may not submit or 

8 identify to the Board of Veterans’ Ap9 peals any new evidence relating to a 

10 fully developed appeal after filing such 

11 appeal unless the claimant reverts to 

12 the standard appeals process pursuant 

13 to paragraph (2)(D); and 

14 (II) if a claimant submits or 

15 identifies any such new evidence, such 

16 submission or identification shall be 

17 deemed to be an election to make such 

18 a reversion pursuant to paragraph 

19 (2)(D). 

20 (ii) EVIDENCE GATHERED BY

21 BOARD.—Clause (i) shall not apply to evi22 dence developed pursuant to subparagraphs 

23 (D) and (E). The Board shall consider such 

24 evidence in the first instance without conVerDate Sep 11 2014 22:42 Jul 10, 2017 Jkt 069200 PO 00000 Frm 00101 Fmt 6652 Sfmt 6203 E:\BILLS\S1024.RS S1024

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1 sideration by the Veterans Benefits Admin2 istration. 

3 (iii) REPRESENTATIVE OF RECORD.— 

4 The representative of record of a claimant 

5 for appeals purposes, if any, shall be pro6 vided an opportunity to review the fully de7 veloped appeal of the claimant and submit 

8 any additional arguments or evidence that 

9 the representative determines necessary dur10 ing a period specified by the Board for pur11 poses of this subparagraph. 

12 (D) PROHIBITION ON REMAND FOR ADDI13 TIONAL DEVELOPMENT.—If the Board of Vet14 erans’ Appeals determines that a fully developed 

15 appeal requires Federal records, independent 

16 medical opinions, or new medical examinations, 

17 the Board shall— 

18 (i) in accordance with subparagraph 

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

20 to develop such records, opinions, or exami21 nations in accordance with section 5103A of 

22 title 38, United States Code; 

23 (ii) retain jurisdiction of the fully de24 veloped appeal without requiring a deter25 mination by the Veterans Benefits AdminisVerDate Sep 11 2014 22:42 Jul 10, 2017 Jkt 069200 PO 00000 Frm 00102 Fmt 6652 Sfmt 6203 E:\BILLS\S1024.RS S1024

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1 tration based on such records, opinions, or 

2 examinations; 

3 (iii) ensure the claimant, and the rep4 resentative of record of a claimant, if any, 

5 receives a copy of such records, opinions, or 

6 examinations; and 

7 (iv) provide the claimant a period of 

8 90 days after the date of mailing such 

9 records, opinions, or examinations during 

10 which the claimant may provide the Board 

11 any additional evidence without requiring 

12 the claimant to make a reversion pursuant 

13 to paragraph (2)(D). 

14 (E) DEVELOPMENT UNIT.— 

15 (i) ESTABLISHMENT.—The Board of 

16 Veterans’ Appeals shall establish an office to 

17 develop Federal records, independent med18 ical opinions, and new medical examina19 tions pursuant to subparagraph (D)(i) that 

20 the Board determines necessary to decide a 

21 fully developed appeal. 

22 (ii) REQUIREMENTS.—The Secretary 

23 shall— 

24 (I) ensure that the Veterans Bene25 fits Administration cooperates with the 


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1 Board of Veterans’ Appeals in carrying 

2 out clause (i); and 

3 (II) transfer employees of the Vet4 erans Benefits Administration who, 

5 prior to the enactment of this Act, were 

6 responsible for processing claims re7 manded by the Board of Veterans’ Ap8 peals to positions within the office of 

9 the Board established under clause (i) 

10 in a number the Secretary determines 

11 sufficient to carry out such subpara12 graph. 

13 (F) HEARINGS.—Notwithstanding section 

14 7107 of title 38, United States Code, the Sec15 retary may not provide hearings with respect to 

16 fully developed appeals under the program. If a 

17 claimant requests to hold a hearing pursuant to 

18 such section 7107, such request shall be deemed 

19 to be an election to revert to the standard ap20 peals process pursuant to paragraph (2)(D). 

21 (4) DURATION; APPLICABILITY.— 

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

23 the Secretary may carry out the program during 

24 such period as the Secretary considers appro25 priate. 


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1 (B) APPLICABILITY.—This section shall 

2 apply only to fully developed appeals that are 

3 filed during the period in which the program is 

4 carried out pursuant to subparagraph (A). 

5 (5) DEFINITIONS.—In this subsection: 

6 (A) COMPENSATION.—The term ‘‘compensa7 tion’’ has the meaning given that term in section 

8 101 of title 38, United States Code. 

9 (B) FULLY DEVELOPED APPEAL.—The term 

10 ‘‘fully developed appeal’’ means an appeal of a 

11 claim for disability compensation that is— 

12 (i) filed by a claimant in accordance 

13 with paragraph (2)(A); and 

14 (ii) considered in accordance with this 

15 subsection. 

16 (C) STANDARD APPEAL.—The term ‘‘stand17 ard appeal’’ means an appeal of a claim for dis18 ability compensation that is not a fully devel19 oped appeal. 

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

21 Veterans Affairs may not carry out a program under this 

22 section after the applicability date set forth in section 

23 2(x)(1). 


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1 SEC. 5. PERIODIC PUBLICATION OF METRICS RELATING TO 

2 PROCESSING OF APPEALS BY DEPARTMENT 

3 OF VETERANS AFFAIRS. 

4 The Secretary of Veterans Affairs shall periodically 

5 publish on an Internet website of the Department of Vet6 erans Affairs the following: 

7 (1) With respect to the processing by the Sec8 retary of appeals under the new appeals system of de9 cisions regarding claims for benefits under laws ad10 ministered by the Secretary, the following: 

11 (A) For the Veterans Benefits Administra12 tion and, to the extent practicable, each regional 

13 office of the Department of Veterans Affairs, the 

14 number of— 

15 (i) supplemental claims under section 

16 5108 of title 38, United States Code, as 

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

18 and 

19 (ii) requests for higher-level review 

20 under section 5104B of such title, as added 

21 by section 2(g), that are pending. 

22 (B) The number of appeals on any docket 

23 maintained under section 7107 of such title, as 

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


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1 (C) The average duration for processing 

2 claims and supplemental claims, disaggregated 

3 by regional office. 

4 (D) The average duration for processing re5 quests for higher-level review under section 

6 5104B of such title, as added by section 2(g), 

7 disaggregated by regional office. 

8 (E) The average number of days that ap9 peals are pending on a docket of the Board of 

10 Veterans’ Appeals maintained pursuant to sec11 tion 7107 of such title, as amended by section 

12 2(t), disaggregated by— 

13 (i) appeals that include a request for a 

14 hearing; 

15 (ii) appeals that do not include a re16 quest for a hearing and do include sub17 mittal of evidence; and 

18 (iii) appeals that do not include a re19 quest for a hearing and do not include sub20 mittal of evidence. 

21 (F) With respect to the policy developed and 

22 implemented under section 7107(e) of such title, 

23 as amended by section 2(t)— 

24 (i) the number of cases moved from one 

25 docket to another pursuant to such policy; 


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1 (ii) the average time cases were pend2 ing prior to moving from one docket to an3 other; and 

4 (iii) the average time to adjudicate the 

5 cases after so moving. 

6 (G) The total number of remands to obtain 

7 advisory medical opinions under section 5109(d) 

8 of title 38, United States Code, as added by sec9 tion 2(j). 

10 (H) The average number of days between 

11 the date on which the Board remands a claim to 

12 obtain an advisory medical opinion under sec13 tion 5109(d) of such title, as so added, and the 

14 date on which the advisory medical opinion is 

15 obtained. 

16 (I) The average number of days between the 

17 date on which the Board remands a claim to ob18 tain an advisory medical opinion under section 

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

20 on which the agency of original jurisdiction 

21 issues a decision taking that advisory opinion 

22 into account. 

23 (J) The number of appeals that are granted, 

24 the number of appeals that are remanded, and 


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1 the number of appeals that are denied by the 

2 Board disaggregated by docket. 

3 (K) The number of claimants each year that 

4 take action within the period set forth in section 

5 5110(a)(2) of such title, as added by section 2(l), 

6 to protect their effective date under such section 

7 5110(a)(2), disaggregated by the status of the 

8 claimants taking the actions, such as whether the 

9 claimant is represented by a veterans service or10 ganization, the claimant is represented by an at11 torney, or the claimant is taking such action pro 

12 se. 

13 (L) The total number of times on average 

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

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

16 date under such section, disaggregated by the 

17 subparagraph of such section under which they 

18 file. 

19 (M) The average duration, from the filing of 

20 an initial claim until the claim is resolved and 

21 claimants no longer take any action to protect 

22 their effective date under section 5110(a)(2) of 

23 such title, as so added— 


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1 (i) of claims under the new appeals 

2 system, excluding legacy claims that opt in 

3 to the new appeals system; and 

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

5 new appeals system. 

6 (N) How frequently an action taken within 

7 one year to protect an effective date under sec8 tion 5110(a)(2) of such title, as so added, leads 

9 to additional grant of benefits, disaggregated by 

10 action taken. 

11 (O) The average of how long it takes to com12 plete each segment of the claims process while 

13 claimants are protecting the effective date under 

14 such section, disaggregated by the time waiting 

15 for the claimant to take an action and the time 

16 waiting for the Secretary to take an action. 

17 (P) The number and the average amount of 

18 retroactive awards of benefits from the Secretary 

19 as a result of protected effective dates under such 

20 section, disaggregated by action taken. 

21 (Q) The average number of times claimants 

22 submit to the Secretary different claims with re23 spect to the same condition, such as an initial 

24 claim and a supplemental claim. 


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1 (R) The number of cases each year in which 

2 a claimant inappropriately tried to take simul3 taneous actions, such as filing a supplemental 

4 claim while a higher-level review is pending, 

5 what actions the Secretary took in response, and 

6 how long it took on average to take those actions. 

7 (S) In the case that the Secretary develops 

8 and implements a policy under section 

9 5104C(a)(2)(D) of such title, as amended by sec10 tion 2(h)(1), the number of actions withdrawn 

11 and new actions taken pursuant to such policy. 

12 (T) The number of times the Secretary re13 ceived evidence relating to an appeal or higher14 level review at a time not authorized under the 

15 new appeals system, disaggregated by actions 

16 taken by the Secretary to deal with the evidence 

17 and how long on average it took to take those ac18 tions. 

19 (U) The number of errors committed by the 

20 Secretary in carrying out the Secretary’s duty to 

21 assist under section 5103A of title 38, United 

22 States Code, that were identified by higher-level 

23 review and by the Board, disaggregated by type 

24 of error, such as errors relating to private 

25 records and inadequate examinations, and a 


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1 comparison with errors committed by the Sec2 retary in carrying out such duty with respect to 

3 appeals of decisions on legacy claims. 

4 (V) An assessment of the productivity of em5 ployees at the regional offices and at the Board, 

6 disaggregated by level of experience of the em7 ployees. 

8 (W) The percentage of cases that are decided 

9 within the goals established by the Secretary for 

10 deciding cases, disaggregated by cases that in11 volve a supplemental claim, cases that involve 

12 higher-level review, and by docket maintained 

13 under section 7107(a) of such title, as amended 

14 by section 2(t), or in the case that the Secretary 

15 has not established goals for deciding cases, the 

16 percentage of cases which are decided within one 

17 year, two years, three years, and more than three 

18 years, disaggregated by docket. 

19 (X) Of the cases that involve higher-level re20 view, the percentage of decisions that are over21 turned in whole or in part by the higher-level 

22 adjudicator, that are upheld by the higher-level 

23 adjudicator, and that are returned for correction 

24 of an error. 


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1 (Y) The frequency by which the Secretary 

2 readjudicates a claim pursuant to section 5108 

3 of such title, as amended by section 2(i), and the 

4 frequency by which readjudication pursuant to 

5 section 5108 of such title, as so amended, results 

6 in an award of benefits. 

7 (Z) In any case in which the Board decides 

8 to screen cases for a purpose described in section 

9 7107(d) of such title, as amended by section 

10 2(t)(1)— 

11 (i) a description of the way in which 

12 the cases are screened and the purposes for 

13 which they are screened; 

14 (ii) a description of the effect such 

15 screening has had on— 

16 (I) the timeliness of the issuance 

17 of decisions of the Board; and 

18 (II) the inventory of cases before 

19 the Board; and 

20 (iii) the type and frequency of develop21 ment errors detected through such screening. 

22 (2) With respect to the processing by the Sec23 retary of appeals of decisions on legacy claims, the 

24 following: 


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1 (A) The average duration of each segment of 

2 the appeals process, disaggregated by periods in 

3 which the Secretary is waiting for a claimant to 

4 take an action and periods in which the claim5 ant is waiting for the Secretary to take an ac6 tion. 

7 (B) The frequency by which appeals lead to 

8 additional grant of benefits by the Secretary, 

9 disaggregated by whether the additional benefits 

10 are a result of additional evidence added after 

11 the initial decision. 

12 (C) The number and average amount of ret13 roactive awards of benefits resulting from an ap14 peal. 

15 (D) The average duration from filing a leg16 acy claim with the Secretary until all appeals 

17 and remands relating to such legacy claim are 

18 completed. 

19 (E) The average number of times claimants 

20 submit to the Secretary different claims with re21 spect to the same condition, such as an initial 

22 claim, new and material evidence, or a claim for 

23 an increase in benefits. 

24 (F) An assessment of the productivity of 

25 employees at the regional offices and at the 


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1 Board, disaggregated by level of experience of the 

2 employees. 

3 (G) The average number of days the dura4 tion of an appeal is extended because the Sec5 retary secured or attempted to secure an advi6 sory medical opinion under section 5109 of title 

7 38, United States Code, or section 7109 of such 

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

9 the enactment of this Act). 

10 (H) The frequency by which claims are re11 opened pursuant to section 5108 of such title and 

12 the frequency by which such reopening results in 

13 an award of benefits. 

14 (3) With respect to the processing by the Sec15 retary of appeals of decisions on legacy claims that 

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

17 (A) The cumulative number of such legacy 

18 claims. 

19 (B) The portion of work in the new appeals 

20 system attributable to appeals of decisions on 

21 such legacy claims. 

22 (C) The average period such legacy claims 

23 were pending before opting in to the new appeals 

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1 dicate such legacy claims on average after opting 

2 in— 

3 (i) with respect to claims at a regional 

4 office of the Department of Veterans Affairs, 

5 disaggregated by— 

6 (I) supplemental claims under 

7 section 5108 of title 38, United States 

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

9 (II) requests for higher-level re10 view under section 5104B of such title, 

11 as added by section 2(g); and 

12 (ii) with respect to appeals, 

13 disaggregated by docket of the Board main14 tained under section 7107 of such title, as 

15 amended by section 2(t). 

16 SEC. 6. DEFINITIONS. 

17 In this Act: 

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

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

20 United States Code. 

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

22 means a claim— 

23 (A) that was submitted to the Secretary of 

24 Veterans Affairs for a benefit under a law ad25 ministered by the Secretary; and 


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1 (B) for which notice of a decision under sec2 tion 5104 of title 38, United States Code, was 

3 provided by the Secretary before the date set 

4 forth in section 2(x). 

5 (3) OPT IN.—The term ‘‘opt in’’ means, with re6 spect to a legacy claim of a claimant, that the claim7 ant elects to subject the claim to the new appeals sys8 tem pursuant to— 

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

10 (B) such other mechanism as the Secretary 

11 may prescribe for purposes of carrying out this 

12 Act and the amendments made by this Act. 

13 (4) NEW APPEALS SYSTEM.—The term ‘‘new ap14 peals system’’ means the set of processes and mecha15 nisms by which the Secretary processes, pursuant to 

16 the authorities and requirements modified by section 

17 2, claims for benefits under laws administered by the 

18 Secretary. 


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Calendar No. 166 

115TH CONGRESS 

1ST SESSION S. 1024 

[Report No. 115–126] 

A BILL 

To amend title 38, United States Code, to reform 

Affairs, and for other purposes. laws administered by the Secretary of Veterans decisions regarding claims for benefits under the the rights and processes relating to appeals of 

JULY 10, 2017 

Reported with an amendment 


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