I

103D CONGRESS

1ST SESSION H. R. 3269

To amend title 38, United States Code, to make improvements in the procedures used by the Department of Veterans Affairs in adjudicating claims

for veterans benefits, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

OCTOBER 13, 1993

Mr. EVANS introduced the following bill; which was referred to the Committee

on Veterans’ Affairs

A BILL

To amend title 38, United States Code, to make improvements in the procedures used by the Department of

Veterans Affairs in adjudicating claims for veterans benefits, 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; REFERENCES TO TITLE 38,

4 UNITED STATES CODE.

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

6 ‘‘Veterans Adjudication Procedures Act of 1993’’.

7 (b) REFERENCES TO TITLE 38, UNITED STATES

8 CODE.—Except as otherwise expressly provided, whenever
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1 in this Act an amendment or repeal is expressed in terms

2 of an amendment to, or repeal of, a section or other provi3 sion, the reference shall be considered to be made to a

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

5 SEC. 2. WORK RATE STANDARDS FOR ADJUDICATIVE EM6 PLOYEES.

7 (a) IN GENERAL.—(1) Chapter 7 is amended by add8 ing at the end the following new section:

9 ‘‘§ 713. Work rate standards for adjudicative employ10 ees

11 ‘‘(a) The Secretary shall provide that under the work

12 rate standards that apply to employees of the Department

13 who adjudicate claims for benefits that have been submit14 ted to the Secretary, those employees do not receive credit

15 for work on a claim until the decision on the claim be16 comes final. Such a decision shall not be considered to

17 have become final until the claimant has exhausted, or

18 failed to timely exercise, the right to appellate review by

19 the Board of Veterans’ Appeals.’’.

20 (2) The table of sections at the beginning of such

21 chapter is amended by adding at the end the following

22 new item:

‘‘713. Work rate standards for adjudicative employees.’’.

23 (b) EFFECTIVE DATE.—Section 713 of title 38,

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

25 apply with respect to claims for benefits that are submit-
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1 ted to the Secretary of Veterans Affairs after the end of

2 the 180-day period beginning on the date of the enactment

3 of this Act.

4 SEC. 3. ANNUAL REPORT ON STATUS OF CLAIMS FOR BENE5 FITS.

6 (a) IN GENERAL.—(1) Chapter 5 is amended by in7 serting after section 529 the following new section:

8 ‘‘§ 530. Annual report on status of claims for benefits

9 ‘‘(a) The Secretary shall submit to the Congress an

10 annual report on the status of claims for benefits before

11 the Department during the preceding fiscal year (begin12 ning with the third fiscal year ending after the date of

13 the enactment of this section). The report for any fiscal

14 year shall be submitted in conjunction with the report

15 under section 7101(d) of this title for that year. Each such

16 report shall separately set forth, with regard to claims for

17 benefits in which a decision of the agency of original juris18 diction or the Board of Veterans’ Appeals became final

19 during the preceding fiscal year, the average number of

20 days that passed from the date on which the claim was

21 initially received by the Department until the following

22 dates, as applicable:

23 ‘‘(1) The date on which the notice of decision

24 was provided to the claimant, for those cases in
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1 which the claimant did not file a timely notice of dis2 agreement (along with the number of such cases).

3 ‘‘(2) The date on which the statement of the

4 case was provided to the claimant, for those cases in

5 which the claimant filed a timely notice of disagree6 ment, and the agency of original jurisdiction did not

7 conduct a hearing, and the claimant did not file a

8 timely substantive appeal to the Board of Veterans’

9 Appeals (along with the number of such cases).

10 ‘‘(3) The date on which the statement of the

11 case was provided to the claimant or the date on

12 which the notice of the decision rendered after the

13 conduct of a hearing of the agency of original juris14 diction, whichever is later, for those cases in which

15 the claimant filed a timely notice of disagreement,

16 and agency of original jurisdiction conducted a hear17 ing, and the claimant did not file a timely sub18 stantive appeal to the Board of Veterans’ Appeals

19 (along with the number of such cases).

20 ‘‘(4) The date on which the notice of the Board

21 of Veterans’ Appeals decision was provided to the

22 claimant, for those cases in which the Board of Vet23 erans’ Appeals did not remand to the agency of

24 original jurisdiction before issuing its decision and

25 neither the agency of original jurisdiction nor the
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1 Board of Veterans’ Appeals conducted a formal

2 hearing (along with the number of such cases).

3 ‘‘(5) The date on which the notice of the Board

4 of Veterans’ Appeals decision was provided to the

5 claimant, for those cases in which the agency of

6 original jurisdiction conducted a hearing, and the

7 Board of Veterans’ Appeals issued a decision on the

8 appeal of the claim without conducting a formal

9 hearing and without remanding the appeal to the

10 agency of original jurisdiction before issuing its deci11 sion (along with the number of such cases).

12 ‘‘(6) The date on which the notice of the Board

13 of Veterans’ Appeals decision was provided to the

14 claimant, for those cases in which the agency of

15 original jurisdiction conducted a hearing and the

16 Board of Veterans’ Appeals issued a decision on the

17 appeal of the claim after conducting a formal hear18 ing and without remanding the appeal to the agency

19 of original jurisdiction before issuing its decision

20 (along with the number of such cases).

21 ‘‘(7) The date on which the notice of the Board

22 of Veterans’ Appeals decision was provided to the

23 claimant, for those cases in which the agency of

24 original jurisdiction did not conduct a hearing, and

25 the Board of Veterans’ Appeals issued a decision on
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1 the appeal of the claim after conducting a formal

2 hearing and without remanding the appeal to the

3 agency of original jurisdiction before issuing its deci4 sion (along with the number of such cases).

5 ‘‘(8) The date on which the notice of the Board

6 of Veterans’ Appeals final decision was provided to

7 the claimant, for those cases in which the Board of

8 Veterans’ Appeals did not conduct a formal hearing

9 and remanded the case on one or more occasions to

10 the agency of original jurisdiction before issuing its

11 final decision (along with the number of such cases).

12 ‘‘(9) The date on which the notice of the Board

13 of Veterans’ Appeals final decision was provided to

14 the claimant, for those cases in which the Board of

15 Veterans’ Appeals conducted a formal hearing and

16 remanded the case on one or more occasions to the

17 agency of original jurisdiction before issuing its final

18 decision (along with the number of such cases).

19 ‘‘(b) Each such report shall also set forth the number

20 of claims for benefits pending a final decision as of the

21 end of the fiscal year preceding the submission of the

22 report.’’.

23 (2) The table of sections at the beginning of such

24 chapter is amended by inserting after the item relating

25 to section 529 the following new item:

‘‘530. Annual report on status of claims for benefits.’’.
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1 (b) EFFECTIVE DATE.—Section 530 of title 38,

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

3 apply only with respect to claims for benefits that are re4 ceived by the Secretary of Veterans Affairs more than 180

5 days after the date of the enactment of this Act.

6 SEC. 4. OFFICIALS DETERMINING ORIGINAL AND RE7 OPENED CLAIMS FOR BENEFITS.

8 (a) IN GENERAL.—Subchapter I of chapter 51 is

9 amended by adding at the end the following:

10 ‘‘§ 5109A. Officials acting on behalf of Secretary

11 ‘‘(a) The functions of the Secretary under this chap12 ter in making determinations on a claim for benefits filed

13 under this chapter shall be carried out in each case by

14 a single official (known as a ‘rating official’). A single rat15 ing official (rather than a board of officials) shall make

16 the initial determination of the Secretary on all original

17 and reopened claims filed with the Secretary.

18 ‘‘(b) Whenever a hearing is requested following a de19 cision of a rating official denying (in whole or in part)

20 a claim for benefits, the official who conducts the hearing

21 shall make a determination in the case without referring

22 the case back to the rating official who initially decided

23 the case (or another rating official) and shall issue a deci24 sion on the case in the manner prescribed in section 5104

25 of this title.’’.
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1 (b) CLERICAL AMENDMENT.—The table of sections

2 at the beginning of such chapter is amended by inserting

3 after the item relating to section 5109 the following new

4 item:

‘‘5109A. Officials acting on behalf of Secretary.’’.

5 SEC. 5. BOARD OF VETERANS’ APPEALS PROCEDURES.

6 (a) TERMINATION OF ACTION BY BVA THROUGH

7 SECTIONS.—(1) Sections 7102 and 7103 are amended to

8 read as follows:

9 ‘‘§ 7102. Decisions by the Board

10 ‘‘A proceeding instituted before the Board shall be

11 assigned to an individual member of the Board (other than

12 the Chairman). A member who is assigned a proceeding

13 shall make a determination thereon, including any motion

14 filed in connection therewith. The member shall make a

15 report under section 7104(d) of this title on any such de16 termination, which report shall constitute the member’s

17 final disposition of the proceeding.

18 ‘‘§ 7103. Reconsideration; correction of obvious errors

19 ‘‘(a) The decision of the member of the Board deter20 mining a matter under section 7102 of this title is final

21 unless the Chairman order reconsideration of the case.

22 Such an order may be made on the Chairman’s initiative

23 or upon motion of the claimant.

24 ‘‘(b) If the Chairman orders reconsideration in a

25 case, the case shall upon reconsideration be heard by a
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1 section of the Board. Any such section shall consist of not

2 less than three members (and may include the Chairman).

3 The member of the Board who made the decision under

4 reconsideration may not serve as a member of the section.

5 ‘‘(c) When a case is heard by a section of the Board

6 after such an order for reconsideration, the decision of a

7 majority of the members of the section shall constitute the

8 final decision of the Board.

9 ‘‘(d) The Board on its own motion may correct an

10 obvious error in the record, without regard to whether

11 there has been a motion or order for reconsideration.’’.

12 (2) The items relating to sections 7102 and 7103 in

13 the table of sections at the beginning of chapter 71 are

14 amended to read as follows:

‘‘7102. Decisions by the Board.

‘‘7103. Reconsideration; correction of obvious errors.’’.

15 (b) CONFORMING AMENDMENTS.—(1) Section 7110

16 is amended by striking out ‘‘section’’ both places it ap17 pears and inserting in lieu thereof ‘‘member’’.

18 (2)(A) The heading of section 7110 is amended to

19 read as follows:

20 ‘‘§ 7110. Traveling members’’.

21 (B) The item relating to section 7110 in the table

22 of sections at the beginning of chapter 71 is amended to

23 read as follows:

‘‘7110. Traveling members.’’.
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1 SEC. 6. REVISION OF DECISIONS BASED ON CLEAR AND UN2 MISTAKABLE ERROR.

3 (a) ORIGINAL DECISIONS.—(1) Chapter 51 is amend4 ed by inserting after section 5109A, as added by section

5 4, the following new section:

6 ‘‘§ 5109B. Revision of decisions on grounds of clear

7 and unmistakable error

8 ‘‘(a) A decision by the Secretary under this chapter

9 is subject to revision on the grounds of clear and unmis10 takable error. If evidence establishes the error, the prior

11 decision shall be reversed or revised.

12 ‘‘(b) For the purposes of authorizing benefits, a rat13 ing or other adjudicative decision that constitutes a rever14 sal or revision of a prior decision on the grounds of clear

15 and unmistakable error has the same effect as if the deci16 sion had been made on the date of the prior decision.

17 ‘‘(c) Review to determine whether clear and unmis18 takable error exists in a case may be instituted by the Sec19 retary on the Secretary’s own motion or upon request of

20 the claimant.

21 ‘‘(d) A request for revision of a decision of the Sec22 retary based on clear and unmistakable error may be made

23 at any time after that decision is made.

24 ‘‘(e) Such a request shall be submitted to the Sec25 retary and shall be decided in the same manner as any

26 other claim.’’.
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1 (2) The table of sections at the beginning of such

2 chapter is amended by inserting after the item relating

3 to section 5109A, as added by section 4, the following new

4 item:

‘‘5109B. Revision of decisions on grounds of clear and unmistakable error.’’.

5 (b) BVA DECISIONS.—(1) Chapter 71 is amended by

6 adding at the end the following new section:

7 ‘‘§ 7111. Revision of decisions on grounds of clear and

8 unmistakable error

9 ‘‘(a) A decision by the Board is subject to revision

10 on the grounds of clear and unmistakable error. If evi11 dence establishes the error, the prior decision shall be re12 versed or revised.

13 ‘‘(b) For the purposes of authorizing benefits, a rat14 ing or other adjudicative decision of the Board that con15 stitutes a reversal or revision of a prior decision of the

16 Board on the grounds of clear and unmistakable error has

17 the same effect as if the decision had been made on the

18 date of the prior decision.

19 ‘‘(c) Review to determine whether clear and unmis20 takable error exists in a case may be instituted by the

21 Board on the Board’s own motion or upon request of the

22 claimant.

23 ‘‘(d) A request for revision of a decision of the Board

24 based on clear and unmistakable error may be made at

25 any time after that decision is made.
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1 ‘‘(e) Such a request shall be submitted directly to the

2 Board and shall be decided by the Board on the merits,

3 without referral to any adjudicative or hearing official act4 ing on behalf of the Secretary.

5 ‘‘(f) A claim filed with the Secretary that requests

6 reversal or revision of a previous Board decision due to

7 clear and unmistakable error shall be considered to be a

8 request to the Board under this section, and the Secretary

9 shall promptly transmit any such request to the Board for

10 its consideration under this section.’’.

11 (2) The table of sections at the beginning of such

12 chapter is amended by adding at the end the following

13 new item:

‘‘7111. Revision of decisions on grounds of clear and unmistakable error.’’.

14 (c) EFFECTIVE DATE.—(1) Section 5109B and 7110

15 of title 38, United States Code, apply to any determination

16 made before, on, or after the date of the enactment of

17 this Act.

18 (2) Notwithstanding section 402 of the Veterans Ju19 dicial Review Act (38 U.S.C. 7251 note), chapter 72 of

20 title 38, United States Code, shall apply with respect to

21 any decision of the Board of Veterans’ Appeals on a claim

22 alleging that a previous determination of the Board was

23 the product of clear and unmistakable error if that claim

24 is filed after, or was pending before the Department of

25 Veterans Affairs, the Court of Veterans Appeals, the
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1 Court of Appeals for the Federal Circuit, or the Supreme

2 Court on the date of the enactment of this Act.

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