II 

115TH CONGRESS 

1ST SESSION S. 152 

To amend title 38, United States Code, to provide for the removal or demotion 

of employees of the Department of Veterans Affairs based on performance or misconduct, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 17, 2017 

Mr. RUBIO (for himself, Mr. MCCAIN, and Mr. TOOMEY) introduced the following bill; which was read twice and referred to the Committee on Veterans’ Affairs 

A BILL 

To amend title 38, United States Code, to provide for the 

removal or demotion of employees of the Department 

of Veterans Affairs based on performance or misconduct, 

and for other purposes. 

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

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘VA Accountability First and Appeals Modernization Act 

6 of 2017’’. 

7 (b) TABLE OF CONTENTS.—The table of contents for 

8 this Act is as follows: 


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Sec. 1. Short title; table of contents. 

Sec. 2. References to title 38, United States Code. 

Sec. 3. Removal or demotion of employees based on performance or misconduct. 

Sec. 4. Reduction of benefits for members of the Senior Executive Service within the Department of Veterans Affairs convicted of certain 

crimes. 

Sec. 5. Authority to recoup bonuses or awards paid to employees of Department 

of Veterans Affairs. 

Sec. 6. Authority to recoup relocation expenses paid to or on behalf of employees of Department of Veterans Affairs. 

Sec. 7. Expansion of personnel actions for senior executives based on performance or misconduct and establishment of Senior Executive Disciplinary Appeals Board. 

Sec. 8. Reform of rights and processes relating to appeals of decisions regarding claims for benefits under laws administered by Secretary 

of Veterans Affairs. 

Sec. 9. Limitation on awards and bonuses paid to senior executive employees 

of Department of Veterans Affairs. 

1 SEC. 2. REFERENCES TO TITLE 38, UNITED STATES CODE. 

2 Except as otherwise expressly provided, whenever in 

3 this Act an amendment or repeal is expressed in terms 

4 of an amendment to, or repeal of, a section or other provi5 sion, the reference shall be considered to be made to a 

6 section or other provision of title 38, United States Code. 

7 SEC. 3. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON 

8 PERFORMANCE OR MISCONDUCT. 

9 (a) IN GENERAL.—Chapter 7 is amended— 

10 (1) by redesignating section 715 as section 725; 

11 and 

12 (2) by inserting after section 713 the following 

13 new section 715: 

14 ‘‘§ 715. Employees: removal or demotion based on 

15 performance or misconduct 

16 ‘‘(a) IN GENERAL.—The Secretary may remove or 

17 demote an individual who is an employee of the DepartVerDate Sep 11 2014 01:34 Jan 28, 2017 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S152.IS S152

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1 ment if the Secretary determines the performance or mis2 conduct of the individual warrants such removal or demo3 tion. If the Secretary so removes or demotes such an indi4 vidual, the Secretary may— 

5 ‘‘(1) remove the individual from the civil service 

6 (as defined in section 2101 of title 5); or 

7 ‘‘(2) demote the individual by means of— 

8 ‘‘(A) a reduction in grade for which the in9 dividual is qualified and that the Secretary de10 termines is appropriate; or 

11 ‘‘(B) a reduction in annual rate of pay 

12 that the Secretary determines is appropriate. 

13 ‘‘(b) PAY OF CERTAIN DEMOTED INDIVIDUALS.—(1) 

14 Notwithstanding any other provision of law, any individual 

15 subject to a demotion by a reduction in grade under sub16 section (a)(2)(A) shall, beginning on the date of such de17 motion, receive the annual rate of pay applicable to such 

18 grade. 

19 ‘‘(2) An individual demoted as described in paragraph 

20 (1) may not be placed on administrative leave or any other 

21 category of paid leave during the period during which an 

22 appeal (if any) under this section is ongoing, and may only 

23 receive pay if the individual reports for duty. If an indi24 vidual so demoted does not report for duty, such individual 

25 shall not receive any pay, awards, bonuses, incentives, alVerDate Sep 11 2014 01:34 Jan 28, 2017 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S152.IS S152

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1 lowances, differentials, student loan repayments, special 

2 payments, or benefits from the Department. 

3 ‘‘(c) NOTICE TO CONGRESS.—Not later than 30 days 

4 after removing or demoting an individual under subsection 

5 (a), the Secretary shall submit to the Committee on Vet6 erans’ Affairs of the Senate and the Committee on Vet7 erans’ Affairs of the House of Representatives notice in 

8 writing of such removal or demotion and the reason for 

9 such removal or demotion. 

10 ‘‘(d) PROCEDURE.—(1) Subsection (b) of section 

11 7513 of title 5 shall apply with respect to a removal or 

12 demotion under this section, except that the period for no13 tice and response, which includes the advance notice pe14 riod required by paragraph (1) of such subsection and the 

15 response period required by paragraph (2) of such sub16 section, shall not exceed a total of ten calendar days. 

17 ‘‘(2) The procedures under chapter 43 of title 5 shall 

18 not apply to a removal or demotion under this section. 

19 ‘‘(3)(A) Subject to subparagraph (B) and subsection 

20 (e), any removal or demotion under subsection (a) may 

21 be appealed to the Merit Systems Protection Board under 

22 section 7701 of title 5. 

23 ‘‘(B) An appeal under subparagraph (A) of a removal 

24 or demotion may only be made if such appeal is made not 


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1 later than seven days after the date of such removal or 

2 demotion. 

3 ‘‘(e) EXPEDITED REVIEW BY MERIT SYSTEMS PRO4 TECTION BOARD.—(1) Upon receipt of an appeal under 

5 subsection (d)(3)(A), the Merit Systems Protection Board 

6 shall expedite any such appeal under such section and, in 

7 any such case, shall issue a decision not later than 60 days 

8 after the date of the appeal. 

9 ‘‘(2) Notwithstanding section 7701(c)(1)(B) of title 

10 5, the Merit Systems Protection Board shall uphold the 

11 decision of the Secretary to remove or demote an employee 

12 under subsection (a) if the decision is supported by sub13 stantial evidence. 

14 ‘‘(3) The decision of the Merit Systems Protection 

15 Board under paragraph (1), and any final removal or de16 motion described in paragraph (4), may be appealed to 

17 the United States Court of Appeals for the Federal Circuit 

18 pursuant to section 7703 of title 5. Any decision by such 

19 Court shall be in compliance with section 7462(f)(2) of 

20 this title. 

21 ‘‘(4) In any case in which the Merit Systems Protec22 tion Board cannot issue a decision in accordance with the 

23 60-day requirement under paragraph (1), the removal or 

24 demotion is final. In such a case, the Merit Systems Pro25 tection Board shall, within 14 days after the date that 


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1 such removal or demotion is final, submit to Congress and 

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

3 Committee on Veterans’ Affairs of the House of Rep4 resentatives a report that explains the reasons why a deci5 sion was not issued in accordance with such requirement. 

6 ‘‘(5) The Merit Systems Protection Board may not 

7 stay any removal or demotion under this section. 

8 ‘‘(6) During the period beginning on the date on 

9 which an individual appeals a removal from the civil serv10 ice under subsection (d) and ending on the date that the 

11 Merit Systems Protection Board issues a final decision on 

12 such appeal, such individual may not receive any pay, 

13 awards, bonuses, incentives, allowances, differentials, stu14 dent loan repayments, special payments, or benefits from 

15 the Department. 

16 ‘‘(7) To the maximum extent practicable, the Sec17 retary shall provide to the Merit Systems Protection 

18 Board such information and assistance as may be nec19 essary to ensure an appeal under this subsection is expe20 dited. 

21 ‘‘(f) WHISTLEBLOWER PROTECTION.—(1) In the 

22 case of an individual seeking corrective action (or on be23 half of whom corrective action is sought) from the Office 

24 of Special Counsel based on an alleged prohibited per25 sonnel practice described in section 2302(b) of title 5, the 


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1 Secretary may not remove or demote such individual 

2 under subsection (a) without the approval of the Special 

3 Counsel under section 1214(f) of title 5. 

4 ‘‘(2) In the case of an individual who has filed a whis5 tleblower complaint, as such term is defined in section 731 

6 of this title, the Secretary may not remove or demote such 

7 individual under subsection (a) until a final decision with 

8 respect to the whistleblower complaint has been made. 

9 ‘‘(g) TERMINATION OF INVESTIGATIONS BY OFFICE

10 OF SPECIAL COUNSEL.—Notwithstanding any other provi11 sion of law, the Special Counsel (established by section 

12 1211 of title 5) may terminate an investigation of a pro13 hibited personnel practice alleged by an employee or 

14 former employee of the Department after the Special 

15 Counsel provides to the employee or former employee a 

16 written statement of the reasons for the termination of 

17 the investigation. Such statement may not be admissible 

18 as evidence in any judicial or administrative proceeding 

19 without the consent of such employee or former employee. 

20 ‘‘(h) RELATION TO OTHER AUTHORITIES.—The au21 thority provided by this section is in addition to the au22 thority provided by subchapter V of chapter 74 of this 

23 title, subchapter II of chapter 75 of title 5, chapter 43 

24 of such title, and any other authority with respect to dis25 ciplining an individual. 


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1 ‘‘(i) DEFINITIONS.—In this section: 

2 ‘‘(1) The term ‘individual’ means an individual 

3 occupying a position at the Department but does not 

4 include— 

5 ‘‘(A) an individual, as that term is defined 

6 in section 713(g); or 

7 ‘‘(B) a political appointee. 

8 ‘‘(2) The term ‘grade’ has the meaning given 

9 that term in section 7511(a) of title 5. 

10 ‘‘(3) The term ‘misconduct’ includes neglect of 

11 duty, malfeasance, or failure to accept a directed re12 assignment or to accompany a position in a transfer 

13 of function. 

14 ‘‘(4) The term ‘political appointee’ means an in15 dividual who is— 

16 ‘‘(A) employed in a position described 

17 under sections 5312 through 5316 of title 5 

18 (relating to the Executive Schedule); 

19 ‘‘(B) a limited term appointee, limited 

20 emergency appointee, or noncareer appointee in 

21 the Senior Executive Service, as defined under 

22 paragraphs (5), (6), and (7), respectively, of 

23 section 3132(a) of title 5; or 

24 ‘‘(C) employed in a position of a confiden25 tial or policy-determining character under 


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1 schedule C of subpart C of part 213 of title 5 

2 of the Code of Federal Regulations (or any suc3 cessor regulation).’’. 

4 (b) CLERICAL AND CONFORMING AMENDMENTS.— 

5 (1) CLERICAL.—The table of sections at the be6 ginning of chapter 7 is amended— 

7 (A) by striking the item relating to section 

8 715 and inserting the following new item: 

‘‘715. Employees: removal or demotion based on performance or misconduct.’’; 

9 and 

10 (B) by inserting after the item relating to 

11 section 715 the following new item: 

‘‘725. Congressional testimony by employees: treatment as official duty.’’. 

12 (2) CONFORMING.—Section 4303(f) of title 5, 

13 United States Code, is amended— 

14 (A) by striking ‘‘or’’ at the end of para15 graph (2); 

16 (B) by striking the period at the end of 

17 paragraph (3) and inserting ‘‘, or’’; and 

18 (C) by adding at the end the following: 

19 ‘‘(4) any removal or demotion under section 

20 715 of title 38.’’. 


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1 SEC. 4. REDUCTION OF BENEFITS FOR MEMBERS OF THE 

2 SENIOR EXECUTIVE SERVICE WITHIN THE 

3 DEPARTMENT OF VETERANS AFFAIRS CON4 VICTED OF CERTAIN CRIMES. 

5 (a) REDUCTION OF BENEFITS.— 

6 (1) IN GENERAL.—Chapter 7 is further amend7 ed by inserting after section 715, as added by sec8 tion 3, the following new section: 

9 ‘‘§ 717. Senior executives: reduction of benefits of in10 dividuals convicted of certain crimes 

11 ‘‘(a) REDUCTION OF ANNUITY FOR REMOVED EM12 PLOYEE.—(1) The Secretary shall order that the covered 

13 service of an individual removed from a senior executive 

14 position for performance or misconduct under section 713 

15 of this title, chapter 43 or subchapter V of chapter 75 

16 of title 5, or any other provision of law shall not be taken 

17 into account for purposes of calculating an annuity with 

18 respect to such individual under chapter 83 or chapter 84 

19 of title 5, if— 

20 ‘‘(A) the individual is convicted of a felony that 

21 influenced the individual’s performance while em22 ployed in the senior executive position; and 

23 ‘‘(B) before such order is made, the individual 

24 is afforded— 

25 ‘‘(i) notice of the order and an opportunity 

26 to respond to the order; and 


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1 ‘‘(ii) consistent with paragraph (2), an op2 portunity to appeal the order to another depart3 ment or agency of the Federal Government. 

4 ‘‘(2) If a final decision on an appeal made under 

5 paragraph (1)(B)(ii) is not made by the applicable depart6 ment or agency of the Federal Government within 30 days 

7 after receiving such appeal, the order of the Secretary 

8 under paragraph (1) shall be final and not subject to fur9 ther appeal. 

10 ‘‘(b) REDUCTION OF ANNUITY FOR RETIRED EM11 PLOYEE.—(1) The Secretary may order that the covered 

12 service of an individual who is subject to a removal or 

13 transfer action for performance or misconduct under sec14 tion 713 of this title, chapter 43 or subchapter V of chap15 ter 75 of title 5, or any other provision of law but who 

16 leaves employment at the Department prior to the 

17 issuance of a final decision with respect to such action 

18 shall not be taken into account for purposes of calculating 

19 an annuity with respect to such individual under chapter 

20 83 or chapter 84 of title 5, if— 

21 ‘‘(A) the individual is convicted of a felony that 

22 influenced the individual’s performance while em23 ployed in the senior executive position; and 

24 ‘‘(B) before such order is made, the individual 

25 is afforded— 


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1 ‘‘(i) notice of the order and an opportunity 

2 to respond to the order; and 

3 ‘‘(ii) an opportunity for a hearing con4 ducted by another department or agency of the 

5 Federal Government. 

6 ‘‘(2) The Secretary shall make such an order not 

7 later than seven days after the date of the conclusion of 

8 a hearing described in paragraph (1)(B) that determines 

9 that such order is lawful. 

10 ‘‘(c) ADMINISTRATIVE REQUIREMENTS.—(1) Not 

11 later than 30 days after the Secretary issues an order 

12 under subsection (a) or (b), the Director of the Office of 

13 Personnel Management shall recalculate the annuity of the 

14 individual. 

15 ‘‘(2) A decision regarding whether the covered service 

16 of an individual shall be taken into account for purposes 

17 of calculating an annuity under subsection (a) or (b) is 

18 final and may not be reviewed by any department or agen19 cy or any court. 

20 ‘‘(d) LUMP-SUM ANNUITY CREDIT.—Any individual 

21 with respect to whom an annuity is reduced under sub22 section (a) or (b) shall be entitled to be paid so much of 

23 such individual’s lump-sum credit as is attributable to the 

24 period of covered service. 


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1 ‘‘(e) SPOUSE OR CHILDREN EXCEPTION.—The Sec2 retary, in consultation with the Director of the Office of 

3 Personnel Management, shall prescribe regulations that 

4 may provide for the payment to the spouse or children 

5 of any individual referred to in subsection (a) or (b) of 

6 any amounts that (but for this subsection) would other7 wise have been nonpayable by reason of subsection (a) or 

8 (b). Any such regulations shall be consistent with the re9 quirements of section 8332(o)(5) and 8411(l)(5) of title 

10 5, as the case may be. 

11 ‘‘(f) DEFINITIONS.—In this section: 

12 ‘‘(1) The term ‘covered service’ means, with re13 spect to an individual subject to a removal or trans14 fer for performance or misconduct under section 713 

15 of this title, chapter 43 or subchapter V of chapter 

16 75 of title 5, or any other provision of law, the pe17 riod of service beginning on the date that the Sec18 retary determines under such applicable provision 

19 that the individual engaged in activity that gave rise 

20 to such action and ending on the date that the indi21 vidual is removed or transferred from the senior ex22 ecutive position or leaves employment at the Depart23 ment prior to the issuance of a final decision with 

24 respect to such action, as the case may be. 


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1 ‘‘(2) The term ‘lump-sum credit’ has the mean2 ing given such term in section 8331(8) or section 

3 8401(19) of title 5, as the case may be. 

4 ‘‘(3) The term ‘senior executive position’ has 

5 the meaning given such term in section 713(g)(3) of 

6 this title. 

7 ‘‘(4) The term ‘service’ has the meaning given 

8 such term in section 8331(12) or section 8401(26) 

9 of title 5, as the case may be.’’. 

10 (2) CLERICAL AMENDMENT.—The table of sec11 tions at the beginning of chapter 7 is further amend12 ed by inserting after the item relating to section 

13 715, as added by section 3, the following new item: 

‘‘717. Senior executives: reduction of benefits of individuals convicted of certain 

crimes.’’. 

14 (b) APPLICATION.—Section 717 of title 38, United 

15 States Code, as added by subsection (a)(1), shall apply 

16 to any action of removal or transfer under section 713 

17 of title 38, United States Code, commencing on or after 

18 the date of the enactment of this Act. 

19 SEC. 5. AUTHORITY TO RECOUP BONUSES OR AWARDS 

20 PAID TO EMPLOYEES OF DEPARTMENT OF 

21 VETERANS AFFAIRS. 

22 (a) IN GENERAL.—Chapter 7 is further amended by 

23 inserting after section 717, as added by section 4, the fol24 lowing new section: 


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1 ‘‘§ 719. Recoupment of bonuses or awards paid to em2 ployees of Department 

3 ‘‘(a) RECOUPMENT.—Notwithstanding any other pro4 vision of law, the Secretary may issue an order directing 

5 an employee of the Department to repay the amount, or 

6 a portion of the amount, of any award or bonus paid to 

7 the employee under title 5, including under chapter 45 or 

8 53 of such title, or this title if— 

9 ‘‘(1) the Secretary determines such repayment 

10 appropriate pursuant to regulations prescribed under 

11 subsection (c); and 

12 ‘‘(2) before such repayment, the employee is af13 forded notice and an opportunity for a hearing con14 ducted by another department or agency of the Fed15 eral Government. 

16 ‘‘(b) REVIEW.—(1) Upon the issuance of an order by 

17 the Secretary under subsection (a), the employee shall be 

18 afforded— 

19 ‘‘(A) notice of the order and an opportunity to 

20 respond to the order; and 

21 ‘‘(B) consistent with paragraph (2), an oppor22 tunity to appeal the order to another department or 

23 agency of the Federal Government. 

24 ‘‘(2) If a final decision on an appeal made under 

25 paragraph (1)(B) is not made by the applicable depart26 ment or agency of the Federal Government within 30 days 


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1 after receiving such appeal, the order of the Secretary 

2 under subsection (a) shall be final and not subject to fur3 ther appeal. 

4 ‘‘(c) REGULATIONS.—The Secretary shall prescribe 

5 regulations to carry out this section.’’. 

6 (b) CLERICAL AMENDMENT.—The table of sections 

7 at the beginning of chapter 7 is further amended by insert8 ing after the item relating to section 717, as added by 

9 section 4, the following new item: 

‘‘719. Recoupment of bonuses or awards paid to employees of Department.’’. 

10 (c) EFFECTIVE DATE.—Section 719 of title 38, 

11 United States Code, as added by subsection (a), shall 

12 apply with respect to an award or bonus paid by the Sec13 retary of Veterans Affairs to an employee of the Depart14 ment of Veterans Affairs on or after the date of the enact15 ment of this Act. 

16 (d) CONSTRUCTION.—Nothing in this section or the 

17 amendments made by this section may be construed to 

18 modify the certification issued by the Office of Personnel 

19 Management and the Office of Management and Budget 

20 regarding the performance appraisal system of the Senior 

21 Executive Service of the Department of Veterans Affairs. 


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1 SEC. 6. AUTHORITY TO RECOUP RELOCATION EXPENSES 

2 PAID TO OR ON BEHALF OF EMPLOYEES OF 

3 DEPARTMENT OF VETERANS AFFAIRS. 

4 (a) IN GENERAL.—Chapter 7 is further amended by 

5 inserting after section 719, as added by section 5, the fol6 lowing new section: 

7 ‘‘§ 721. Recoupment of relocation expenses paid on 

8 behalf of employees of Department 

9 ‘‘(a) RECOUPMENT.—(1) Notwithstanding any other 

10 provision of law, the Secretary may direct an employee of 

11 the Department to repay the amount, or a portion of the 

12 amount, paid to or on behalf of the employee for relocation 

13 expenses under title 5, including any expenses under sec14 tion 5724 or 5724a of such title, or this title if— 

15 ‘‘(A) the Secretary determines that— 

16 ‘‘(i) the employee has committed an act of 

17 fraud, waste, or malfeasance; and 

18 ‘‘(ii) such repayment is appropriate pursu19 ant to regulations prescribed under subsection 

20 (c); and 

21 ‘‘(B) before such repayment is ordered, the in22 dividual is afforded— 

23 ‘‘(i) notice of the determination of the Sec24 retary and an opportunity to respond to the de25 termination; and 


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1 ‘‘(ii) consistent with paragraph (2), an op2 portunity to appeal the determination to an3 other department or agency of the Federal Gov4 ernment. 

5 ‘‘(2) If a final decision on an appeal made under 

6 paragraph (1)(B)(ii) is not made by the applicable depart7 ment or agency of the Federal Government within 30 days 

8 after receiving such appeal, the order of the Secretary 

9 under paragraph (1) shall be final and not subject to fur10 ther appeal. 

11 ‘‘(b) REVIEW.—A decision by the applicable depart12 ment or agency of the Federal Government regarding a 

13 repayment by an employee pursuant to subsection 

14 (a)(1)(B)(ii) is final and may not be reviewed by any de15 partment, agency, or court. 

16 ‘‘(c) REGULATIONS.—The Secretary shall prescribe 

17 regulations to carry out this section.’’. 

18 (b) CLERICAL AMENDMENT.—The table of sections 

19 at the beginning of chapter 7 is further amended by insert20 ing after the item relating to section 719, as added by 

21 section 5, the following new item: 

‘‘721. Recoupment of relocation expenses paid to or on behalf of employees of 

Department.’’. 

22 (c) EFFECTIVE DATE.—Section 721 of title 38, 

23 United States Code, as added by subsection (a), shall 

24 apply with respect to an amount paid by the Secretary 


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1 of Veterans Affairs to or on behalf of an employee of the 

2 Department of Veterans Affairs for relocation expenses on 

3 or after the date of the enactment of this Act. 

4 (d) CONSTRUCTION.—Nothing in this section or the 

5 amendments made by this section may be construed to 

6 modify the certification issued by the Office of Personnel 

7 Management and the Office of Management and Budget 

8 regarding the performance appraisal system of the Senior 

9 Executive Service of the Department of Veterans Affairs. 

10 SEC. 7. EXPANSION OF PERSONNEL ACTIONS FOR SENIOR 

11 EXECUTIVES BASED ON PERFORMANCE OR 

12 MISCONDUCT AND ESTABLISHMENT OF SEN13 IOR EXECUTIVE DISCIPLINARY APPEALS 

14 BOARD. 

15 (a) EXPANSION OF COVERED PERSONNEL AC16 TIONS.—Subsection (a)(1) of section 713 is amended, in 

17 the matter preceding subparagraph (A), by inserting after 

18 ‘‘such removal.’’ the following: ‘‘If the Secretary deter19 mines that the performance or misconduct of such an indi20 vidual does not warrant removal from the senior executive 

21 service position, the Secretary may suspend, reprimand, 

22 or admonish the individual.’’. 

23 (b) REMOVAL OF APPEAL TO MERIT SYSTEMS PRO24 TECTION BOARD.—Section 713 is further amended— 

25 (1) in subsection (a)— 


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1 (A) in paragraph (1), by striking ‘‘so re2 moves’’ and inserting ‘‘removes’’; and 

3 (B) by adding at the end the following: 

4 ‘‘(3) On the date that is five days before taking any 

5 personnel action against a senior executive under para6 graph (1), the Secretary shall provide the individual 

7 with— 

8 ‘‘(A) notice in writing of the proposed personnel 

9 action, including the reasons for such action; and 

10 ‘‘(B) an opportunity to respond to the proposed 

11 personnel action within the five-day period.’’; 

12 (2) in subsection (b)(2)— 

13 (A) by striking ‘‘under this section’’ and 

14 inserting ‘‘under section 723 of this title’’; and 

15 (B) by striking the second sentence; 

16 (3) in subsection (c)— 

17 (A) by striking ‘‘30’’ and inserting ‘‘five’’; 

18 and 

19 (B) by striking ‘‘and the reason for such 

20 removal or transfer’’ and inserting ‘‘, the rea21 son for such removal or transfer, the name and 

22 position of the individual, and all charging doc23 uments and evidence pertaining to such removal 

24 or transfer’’; 


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1 (4) by striking subsections (d) and (e) and in2 serting the following: 

3 ‘‘(d) PROCEDURE.—(1) The procedures under title 5 

4 shall not apply to any personnel action under this section. 

5 ‘‘(2) Subject to paragraph (3), a personnel action 

6 under this section— 

7 ‘‘(A) may be appealed to the Senior Executive 

8 Disciplinary Appeals Board under section 723 of 

9 this title; and 

10 ‘‘(B) may not be appealed to the Merit Systems 

11 Protection Board under section 7701 of title 5. 

12 ‘‘(3) An appeal under paragraph (2)(A) of a per13 sonnel action under this section may only be made if such 

14 appeal is made not later than seven days after the date 

15 of such action. If no such appeal is made, the decision 

16 of the Secretary under this section shall be final.’’; 

17 (5) by redesignating subsections (f) and (g) as 

18 subsections (e) and (f), respectively; and 

19 (6) in subsection (f), as redesignated by para20 graph (5), by adding at the end the following: 

21 ‘‘(4) The term ‘suspend’ means the placing of 

22 an individual in a temporary status without duties 

23 and pay for a period greater than 14 days.’’. 

24 (c) REMOVAL OF EXPEDITED PROCEDURES.—Sec25 tion 707 of the Veterans Access, Choice, and AccountVerDate Sep 11 2014 01:34 Jan 28, 2017 Jkt 069200 PO 00000 Frm 00021 Fmt 6652 Sfmt 6201 E:\BILLS\S152.IS S152

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1 ability Act of 2014 (Public Law 113–146; 38 U.S.C. 713 

2 note) is amended— 

3 (1) by striking subsection (b); and 

4 (2) by redesignating subsections (c) and (d) as 

5 subsections (b) and (c), respectively. 

6 (d) SENIOR EXECUTIVE DISCIPLINARY APPEALS

7 BOARD.—Chapter 7 is further amended by inserting after 

8 section 721, as added by section 6, the following new sec9 tion: 

10 ‘‘§ 723. Senior Executive Disciplinary Appeals Board 

11 ‘‘(a) IN GENERAL.—The Secretary shall from time 

12 to time appoint a board to hear appeals of any personnel 

13 action taken under section 713 of this title. Such board 

14 shall be known as the Senior Executive Disciplinary Ap15 peals Board (in this section referred to as the ‘Board’). 

16 Each Board shall consist of three employees of the De17 partment. The Board shall have exclusive jurisdiction to 

18 review any personnel action under section 713. 

19 ‘‘(b) REVIEW AND DECISION.—Upon an appeal of 

20 such a personnel action, the Board shall— 

21 ‘‘(1) review all evidence provided by the Sec22 retary and the appellant; and 

23 ‘‘(2) issue a decision not later than 21 days 

24 after the date of the appeal. 


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1 ‘‘(c) HEARING.—The Board shall afford an employee 

2 appealing a personnel action an opportunity for an oral 

3 hearing. If such a hearing is held, the appellant may be 

4 represented by counsel. 

5 ‘‘(d) STANDARD OF REVIEW.—The Board shall up6 hold the decision of the Secretary if— 

7 ‘‘(1) there is substantial evidence supporting 

8 the decision; and 

9 ‘‘(2) the applicable personnel action is within 

10 the tolerable bounds of reasonableness. 

11 ‘‘(e) REVERSAL BY SECRETARY.—If the Board issues 

12 a decision under this section that reverses or otherwise 

13 mitigates the applicable personnel action, the Secretary 

14 may reverse the decision of the Board. Consistent with the 

15 requirements of subsection (g), the decision of the Sec16 retary under this subsection shall be final. 

17 ‘‘(f) NO DECISION BY BOARD.—In any case in which 

18 the Board cannot issue a decision in accordance with the 

19 21-day requirement under subsection (b)(2), the personnel 

20 action is final. 

21 ‘‘(g) APPEAL OF DECISION.—A petition to review a 

22 final order or final decision of the Secretary or the Board 

23 under this section shall be filed in the United States Court 

24 of Appeals for the Federal Circuit. Any decision by such 


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1 Court shall be in compliance with section 7462(f)(2) of 

2 this title. 

3 ‘‘(h) PROHIBITION ON RECEIPT OF BENEFITS.— 

4 During the period beginning on the date on which an indi5 vidual appeals a removal from the civil service under sec6 tion 713(d) of this title and ending on the date that the 

7 Board or Secretary issues a final decision on such appeal, 

8 such individual may not receive any pay, awards, bonuses, 

9 incentives, allowances, differentials, student loan repay10 ments, special payments, or benefits from the Depart11 ment.’’. 

12 (e) TECHNICAL AND CLERICAL AMENDMENTS.— 

13 (1) TECHNICAL AMENDMENT.—The section 

14 heading of section 713 is amended to read as fol15 lows: Senior executives: personnel actions 

16 based on performance or misconduct. 

17 (2) CLERICAL AMENDMENTS.—The table of sec18 tions at the beginning of chapter 7 is further amend19 ed— 

20 (A) by striking the item relating to section 

21 713 and inserting the following new item: 

‘‘713. Senior executives: personnel actions based on performance or misconduct.’’; 

22 and 


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1 (B) by inserting after the item relating to 

2 section 721 the following new item: 

‘‘723. Senior Executive Disciplinary Appeals Board.’’. 

3 (f) RULE OF CONSTRUCTION.—Nothing in this sec4 tion or section 723 of title 38, United States Code, as 

5 added by subsection (d), shall be construed to apply to 

6 an appeal of a removal, transfer, or other personnel action 

7 that was pending before the date of the enactment of this 

8 Act. 

9 SEC. 8. REFORM OF RIGHTS AND PROCESSES RELATING TO 

10 APPEALS OF DECISIONS REGARDING CLAIMS 

11 FOR BENEFITS UNDER LAWS ADMINISTERED 

12 BY SECRETARY OF VETERANS AFFAIRS. 

13 (a) DEFINITIONS.—Section 101 is amended by add14 ing at the end the following new paragraphs: 

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

16 means the activity which entered the original deter17 mination with regard to a claim for benefits under 

18 laws administered by the Secretary. 

19 ‘‘(35) The term ‘relevant evidence’ means evi20 dence that tends to prove or disprove a matter in 

21 issue.’’. 

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

23 is amended— 


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

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

3 paragraph (3), the’’; 

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

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

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

7 ‘‘or a supplemental claim;’’; and 

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

9 paragraph: 

10 ‘‘(3) The requirement to provide notice under para11 graph (1) shall not apply with respect to a supplemental 

12 claim that is filed within the time frame set forth in sub13 paragraphs (B) and (D) of section 5110(a)(2) of this 

14 title.’’. 

15 (c) MODIFICATION OF RULE REGARDING DIS16 ALLOWED CLAIMS.—Section 5103A(f) is amended— 

17 (1) by striking ‘‘reopen’’ and inserting ‘‘readju18 dicate’’; and 

19 (2) by striking ‘‘material’’ and inserting ‘‘rel20 evant’’. 

21 (d) MODIFICATION OF DUTY TO ASSIST CLAIM22 ANTS.— 

23 (1) LIMITATIONS ON DUTY.—Section 5103A(a) 

24 is amended— 


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1 (A) in paragraph (1), by striking ‘‘The’’ 

2 and inserting ‘‘Except as otherwise provided in 

3 this subsection, the’’; and 

4 (B) by adding at the end the following new 

5 paragraphs: 

6 ‘‘(4) The Secretary’s duty to assist under paragraph 

7 (1) shall apply only to a claim, or supplemental claim, for 

8 a benefit under a law administered by the Secretary until 

9 the time that a claimant is provided notice of the decision 

10 of the agency of original jurisdiction with respect to such 

11 claim, or supplemental claim, under section 5104 of this 

12 title. 

13 ‘‘(5) The Secretary’s duty to assist under paragraph 

14 (1) shall not apply to— 

15 ‘‘(A) higher-level review by the agency of origi16 nal jurisdiction, pursuant to section 5104B of this 

17 title; or 

18 ‘‘(B) to review on appeal by the Board of Vet19 erans’ Appeals.’’. 

20 (2) CORRECTION OF ERRORS FROM DUTY TO

21 ASSIST.—Section 5103A is amended— 

22 (A) by redesignating subsections (e) 

23 through (g) as subsections (f) through (h), re24 spectively; and 


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1 (B) by inserting after subsection (d) the 

2 following new subsection: 

3 ‘‘(e) CORRECTION OF DUTY TO ASSIST ERRORS.— 

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

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

6 reviewer identifies an error on the part of the agency of 

7 original jurisdiction to satisfy its duties under this section, 

8 and that error occurred prior to the agency of original ju9 risdiction decision being reviewed, unless the claim can be 

10 granted in full, the higher-level reviewer shall return the 

11 claim for correction of such error and readjudication. 

12 ‘‘(2)(A) If the Board, during review on appeal of a 

13 decision of the agency of original jurisdiction, identifies 

14 an error on the part of the agency of original jurisdiction 

15 to satisfy its duties under section 5103A of this title, and 

16 that error occurred prior to the decision of the agency of 

17 original jurisdiction on appeal, unless the claim can be 

18 granted in full, the Board shall remand the claim to the 

19 agency of original jurisdiction for correction of such error 

20 and readjudication. 

21 ‘‘(B) Remand for correction of an error under 

22 suparagraph (A) may include directing the agency of origi23 nal jurisdiction to obtain an advisory medical opinion 

24 under section 5109 of this title’’. 


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1 (e) DECISIONS AND NOTICES OF DECISIONS.—Sub2 section (b) of section 5104 is amended to read as follows: 

3 ‘‘(b) In any case where the Secretary denies a benefit 

4 sought, the notice required by subsection (a) shall also in5 clude all of the following: 

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

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

8 the Secretary. 

9 ‘‘(3) A summary of the applicable laws and reg10 ulations. 

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

12 claimant. 

13 ‘‘(5) Identification of elements not satisfied 

14 leading to the denial. 

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

16 evidence used in making the decision. 

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

18 that must be satisfied to grant service connection or 

19 the next higher level of compensation.’’. 

20 (f) BINDING NATURE OF FAVORABLE FINDINGS.— 

21 (1) IN GENERAL.—Chapter 51 is amended in22 serting after section 5104 the following new section: 

23 ‘‘§ 5104A. Binding nature of favorable findings 

24 ‘‘Any finding favorable to the claimant as described 

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


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1 subsequent adjudicators within the Department, unless 

2 clear and convincing evidence is shown to the contrary to 

3 rebut such favorable finding.’’. 

4 (2) CLERICAL AMENDMENT.—The table of sec5 tions at the beginning of chapter 51 is amended by 

6 inserting after the item relating to section 5104 the 

7 following new item: 

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

8 (g) HIGHER-LEVEL REVIEW BY AGENCY OF ORIGI9 NAL JURISDICTION.— 

10 (1) IN GENERAL.—Chapter 51, as amended by 

11 subsection (f), is further amended by inserting after 

12 section 5104A, as added by such subsection, the fol13 lowing new section: 

14 ‘‘§ 5104B. Higher-level review by the agency of origi15 nal jurisdiction 

16 ‘‘(a) IN GENERAL.—A claimant may request a de 

17 novo review of the decision of the agency of original juris18 diction by a higher-level adjudicator within the agency of 

19 original jurisdiction. 

20 ‘‘(b) TIME AND MANNER OF REQUEST.—(1) A re21 quest for higher-level review by the agency of original ju22 risdiction shall be— 

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

24 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. 

8 ‘‘(c) DECISION.—Notice of a higher-level review deci9 sion under this section shall be provided in writing. 

10 ‘‘(d) EVIDENTIARY RECORD FOR REVIEW.—The evi11 dentiary record before the higher-level reviewer shall be 

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

13 jurisdiction decision being reviewed.’’. 

14 (2) CLERICAL AMENDMENT.—The table of sec15 tions at the beginning of chapter 51, as amended by 

16 subsection (f), is further amended by inserting after 

17 the item relating to section 5104A, as added by such 

18 subsection, the following new item: 

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

19 (h) SUPPLEMENTAL CLAIMS.— 

20 (1) IN GENERAL.—Section 5108 is amended to 

21 read as follows: 

22 ‘‘§ 5108. Supplemental claims 

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

24 with respect to a supplemental claim, the Secretary shall 

25 readjudicate the claim taking into consideration any eviVerDate Sep 11 2014 01:34 Jan 28, 2017 Jkt 069200 PO 00000 Frm 00031 Fmt 6652 Sfmt 6201 E:\BILLS\S152.IS S152

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1 dence added to the record prior to the former disposition 

2 of the claim.’’. 

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

5 striking the item relating to section 5108 and insert6 ing the following new item: 

‘‘5108. Supplemental claims.’’. 

7 (i) REMAND OF CLAIM FOR ADVISORY MEDICAL

8 OPINION.—Section 5109 is amended by adding at the end 

9 the following new subsection: 

10 ‘‘(d) The Board of Veterans’ Appeals may remand 

11 a claim to direct the agency of original jurisdiction to ob12 tain an advisory medical opinion under this section to cor13 rect an error on the part of the agency of original jurisdic14 tion to satisfy its duties under section 5103A of this title 

15 when such error occurred prior to the decision of the agen16 cy of original jurisdiction on appeal. The remand instruc17 tions set forth by the Board shall include the questions 

18 to be posed to the independent medical expert providing 

19 the advisory medical opinion.’’. 

20 (j) EFFECTIVE DATES OF AWARDS.—Section 5110 is 

21 amended— 

22 (1) by amending subsection (a) to read as fol23 lows: 

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

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


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1 claim, or a supplemental claim, of compensation, depend2 ency and indemnity compensation, or pension, shall be 

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

4 earlier than the date of receipt of application therefor. 

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

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

7 shall be considered the date of the filing of the initial ap8 plication for a benefit if the claim is continuously pursued 

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

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

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

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

13 original jurisdiction issues a decision. 

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

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

16 after the date on which the agency of original juris17 diction issues a decision. 

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

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

20 agency of original jurisdiction issues a decision. 

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

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

23 after the date on which the Board of Veterans’ Ap24 peals issues a decision. 


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

2 supplemental claims received more than one year after the 

3 date on which the agency of original jurisdiction issued 

4 a decision or the Board of Veterans’ Appeals issued a deci5 sion, the effective date shall be fixed in accordance with 

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

7 receipt of the supplemental claim.’’; and 

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

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

10 ‘‘readjudicated’’; 

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

12 ‘‘relevant’’; and 

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

14 ‘‘readjudication’’. 

15 (k) DEFINITION OF AWARD OR INCREASED AWARD

16 FOR PURPOSES OF PROVISIONS RELATING TO COM17 MENCEMENT OF PERIOD OF PAYMENT.—Section 

18 5111(d)(1) is amended by striking ‘‘or reopened award’’ 

19 and inserting ‘‘award or award based on a supplemental 

20 claim’’. 

21 (l) MODIFICATION ON LIMITATION ON FEES ALLOW22 ABLE FOR REPRESENTATION.—Section 5904(c) is amend23 ed, in paragraphs (1) and (2), by striking ‘‘notice of dis24 agreement is filed’’ both places it appears and inserting 


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1 ‘‘claimant is provided notice of the agency of original juris2 diction’s initial decision under section 5104 of this title’’. 

3 (m) MODIFICATION OF BOARD OF VETERANS’ AP4 PEALS REFERRAL REQUIREMENTS AFTER ORDER FOR

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

6 is amended by striking ‘‘heard’’ both places it appears and 

7 inserting ‘‘decided’’. 

8 (n) CONFORMING AMENDMENT RELATING TO RE9 ADJUDICATION BY BOARD OF VETERANS’ APPEALS.— 

10 Section 7104(b) is amended by striking ‘‘reopened’’ and 

11 inserting ‘‘readjudicated’’. 

12 (o) MODIFICATION OF RIGHTS AND PROCEDURES

13 FOR APPEALS TO BOARD OF VETERANS’ APPEALS.— 

14 (1) IN GENERAL.—Section 7105 is amended— 

15 (A) in subsection (a)— 

16 (i) by striking the first sentence and 

17 inserting ‘‘Appellate review shall be initi18 ated by the filing of a notice of disagree19 ment in the form prescribed by the Sec20 retary.’’; and 

21 (ii) by striking ‘‘hearing and’’; 

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

23 follows: 

24 ‘‘(b)(1)(A) Except in the case of simultaneously con25 tested claims, notice of disagreement shall be filed within 


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1 one year from the date of the mailing of notice of the deci2 sion of the agency of original jurisdiction pursuant to sec3 tion 5104, 5104B, or 5108 of this title. 

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

5 expiration of the one-year period shall be accepted as time6 ly filed. 

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

8 notice of disagreement shall be decided by the Board. 

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

10 shall set out specific allegations of error of fact or law, 

11 and may be filed by the claimant, the claimant’s legal 

12 guardian, or such accredited representative, attorney, or 

13 authorized agent as may be selected by the claimant or 

14 legal guardian. 

15 ‘‘(B) Not more than one recognized organization, at16 torney, or agent may be recognized at any one time in 

17 the prosecution of a claim. 

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

19 Board. 

20 ‘‘(3)(A) The notice of disagreement shall indicate 

21 whether the claimant requests— 

22 ‘‘(i) a hearing before the Board; 

23 ‘‘(ii) an opportunity to submit additional evi24 dence without a hearing before the Board; or 


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1 ‘‘(iii) a review by the Board without a hearing 

2 or submission of additional evidence. 

3 ‘‘(B) If the claimant does not expressly request a 

4 hearing before the Board in the notice of disagreement, 

5 no hearing before the Board may be held.’’; 

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

7 follows: 

8 ‘‘(c) If no notice of disagreement is filed in accord9 ance with this chapter within the prescribed period, the 

10 action or decision of the agency of original jurisdiction 

11 shall become final and the claim may not thereafter be 

12 readjudicated or allowed, except as may otherwise be pro13 vided by section 5104B or 5108 of this title or such regu14 lations as the Secretary may promulgate that are con15 sistent with this title.’’; 

16 (D) by striking subsection (d) and insert17 ing the following new subsection (d): 

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

19 any appeal which fails to allege specific error of fact or 

20 law in the decision being appealed.’’; 

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

22 (F) in the section heading, by striking 

23 ‘‘notice of disagreement and’’. 

24 (2) CLERICAL AMENDMENT.—The table of sec25 tions at the beginning of chapter 71 is amended by 


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1 striking the item relating to section 7105 and insert2 ing the following new item: 

‘‘7105. Filing of appeal.’’. 

3 (p) MODIFICATION OF PROCEDURES AND REQUIRE4 MENTS FOR SIMULTANEOUSLY CONTESTED CLAIMS.— 

5 Subsection (b) of section 7105A is amended to read as 

6 follows: 

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

8 shall be communicated to the other party or parties in in9 terest and a period of thirty days shall be allowed for filing 

10 a brief or argument in response thereto. 

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

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

13 shall constitute sufficient evidence of notice.’’. 

14 (q) REPEAL OF PROCEDURES FOR ADMINISTRATIVE

15 APPEALS.— 

16 (1) IN GENERAL.—Chapter 71 is amended by 

17 striking section 7106. 

18 (2) CLERICAL AMENDMENT.—The table of sec19 tions at the beginning of chapter 71 is amended by 

20 striking the item relating to section 7106. 

21 (r) MODIFICATIONS RELATING TO APPEALS: DOCK22 ETS; HEARINGS.—Section 7107 is amended to read as fol23 lows: 


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1 ‘‘§ 7107. Appeals: dockets; hearings 

2 ‘‘(a) DOCKETS.—(1) The Board shall maintain two 

3 separate dockets as follows: 

4 ‘‘(A) A non-hearing option docket shall be 

5 maintained for cases in which no Board hearing is 

6 requested and no additional evidence will be sub7 mitted. 

8 ‘‘(B) A separate and distinct hearing option 

9 docket shall be maintained for cases in which a 

10 Board hearing is requested in the notice of disagree11 ment or in which no Board hearing is requested, but 

12 the appellant requests, in the notice of disagreement, 

13 an opportunity to submit additional evidence. 

14 ‘‘(2) 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 Board’s non-hearing option 

17 docket or the hearing option docket. 

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

19 on either the Board’s non-hearing option docket or hear20 ing option docket may, for cause shown, be advanced on 

21 motion 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— 

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

26 general application affecting other claims; 


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

2 severe financial hardship; or 

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

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

5 CASES ON BOARD HEARING OPTION DOCKET.—(1) For 

6 cases on the Board hearing option docket in which a hear7 ing is requested in the notice of disagreement, the Board 

8 shall notify the appellant whether a Board hearing will 

9 be held— 

10 ‘‘(A) at its principal location, or 

11 ‘‘(B) by picture and voice transmission at a fa12 cility of the Department where the Secretary has 

13 provided suitable facilities and equipment to conduct 

14 such hearings. 

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

16 Board’s principal location as described in subparagraph 

17 (A) of paragraph (1), the appellant may alternatively re18 quest a hearing as described in subparagraph (B) of such 

19 paragraph. If so requested, the Board shall grant such re20 quest. 

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

22 and voice transmission as described in subparagraph (B) 

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

24 a hearing as described in subparagraph (A) of such para25 graph. If so requested, the Board shall grant such request. 


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

2 shall be construed to preclude the screening of cases for 

3 purposes of— 

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

5 decisional purposes; or 

6 ‘‘(2) the development, or attempted develop7 ment, of a record found to be inadequate for 

8 decisional purposes.’’. 

9 (s) REPEAL OF AUTHORITY FOR INDEPENDENT

10 MEDICAL OPINIONS.— 

11 (1) IN GENERAL.—Chapter 71 is amended by 

12 striking section 7109. 

13 (2) CLERICAL AMENDMENT.—The table of sec14 tions at the beginning of chapter 71 is amended by 

15 striking the item relating to section 7109. 

16 (3) CONFORMING AMENDMENT.—Section 

17 5701(b)(1) is amended by striking ‘‘or 7109’’. 

18 (t) MODIFICATION OF STANDARD FOR REVIEW OF

19 DECISIONS ON GROUNDS OF CLEAR AND UNMISTAKABLE

20 ERROR.—Section 7111(e) is amended by striking ‘‘, with21 out referral to any adjudicative or hearing official acting 

22 on behalf of the Secretary’’. 

23 (u) EVIDENTIARY RECORD BEFORE BOARD OF VET24 ERANS’ APPEALS.— 


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1 (1) IN GENERAL.—Chapter 71 is amended by 

2 adding at the end the following new section: 

3 ‘‘§ 7113. Evidentiary record before the Board of Vet4 erans’ Appeals 

5 ‘‘(a) NON-HEARING OPTION DOCKET.—For cases in 

6 which a hearing before the Board of Veterans’ Appeals 

7 is not requested in the notice of disagreement, the evi8 dentiary record before the Board shall be limited to the 

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

10 of original jurisdiction on appeal. 

11 ‘‘(b) HEARING OPTION DOCKET.—(1)(A) Except as 

12 provided in subparagraph (B), for cases on the hearing 

13 option docket in which a hearing is requested in the notice 

14 of disagreement, the evidentiary record before the Board 

15 shall be limited to the evidence of record at the time of 

16 the decision of the agency of original jurisdiction on ap17 peal. 

18 ‘‘(B) The evidentiary record before the Board for 

19 cases on the hearing option docket in which a hearing is 

20 requested, shall include each of the following, which the 

21 Board shall consider in the first instance: 

22 ‘‘(i) Evidence submitted by the appellant and 

23 his or her representative, if any, at the Board hear24 ing. 


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

2 his or her representative, if any, within 90 days fol3 lowing the Board hearing. 

4 ‘‘(2)(A) Except as provided in subparagraph (B), for 

5 cases on the hearing option docket in which a hearing is 

6 not requested in the notice of disagreement, the evi7 dentiary record before the Board shall be limited to the 

8 evidence considered by the agency of original jurisdiction 

9 in the decision on appeal. 

10 ‘‘(B) The evidentiary record before the Board for 

11 cases on the hearing option docket in which a hearing is 

12 not requested, shall include each of the following, which 

13 the Board shall consider in the first instance: 

14 ‘‘(i) Evidence submitted by the appellant and 

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

16 disagreement. 

17 ‘‘(ii) Evidence submitted by the appellant and 

18 his or her representative, if any, within 90 days fol19 lowing receipt of the notice of disagreement.’’. 

20 (2) CLERICAL AMENDMENT.—The table of sec21 tions at the beginning of chapter 71 is amended by 

22 inserting after the item relating to section 7112 the 

23 following new item: 

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


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1 SEC. 9. LIMITATION ON AWARDS AND BONUSES PAID TO 

2 SENIOR EXECUTIVE EMPLOYEES OF DEPART3 MENT OF VETERANS AFFAIRS. 

4 Section 705 of the Veterans Access, Choice, and Ac5 countability Act of 2014 (Public Law 113–146; 38 U.S.C. 

6 703 note) is amended— 

7 (1) in subsection (a), by striking ‘‘The Sec8 retary’’ and inserting ‘‘Except as provided in sub9 section (b), the Secretary’’; 

10 (2) by redesignating subsection (b) as sub11 section (c); and 

12 (3) by inserting after subsection (a) the fol13 lowing new subsection (b): 

14 ‘‘(b) PROHIBITION ON AWARDS AND BONUSES FOR

15 SENIOR EXECUTIVE EMPLOYEES.—During each of fiscal 

16 years 2017 through 2021, no award or bonus may be paid 

17 to any employee of the Department of Veterans Affairs 

18 who is employed in a Senior Executive Service position, 

19 as that term is defined in section 3132(a)(2) of title 5.’’. 

Æ 


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