I 

115TH CONGRESS 

1ST SESSION H. R. 457 

To amend title 38, United States Code, to improve the appeals process 

of the Department of Veterans Affairs. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 11, 2017 

Ms. TITUS introduced the following bill; which was referred to the Committee 

on Veterans’ Affairs 

A BILL 

To amend title 38, United States Code, to improve the 

appeals process of the Department of Veterans Affairs. 

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 ‘‘VA Appeals Mod5 ernization Act of 2017’’. 

6 SEC. 2. APPEALS REFORM. 

7 (a) Section 101 of title 38, United States Code, is 

8 amended by adding at the end the following new para9 graphs: 


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1 ‘‘(34) The term ‘Agency of Original Jurisdic2 tion’ means the activity which entered the original 

3 determination with regard to a claim for benefits 

4 under this title. 

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

7 issue.’’. 

8 (b) Section 5103 of title 38, United States Code, is 

9 amended— 

10 (1) in subsection (a)(2)(B)(i) by striking ‘‘, a 

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

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

13 ‘‘or a supplemental claim;’’; and 

14 (2) in subsection (b) by adding at the end the 

15 following new paragraph: 

16 ‘‘(6) Nothing in this section shall require notice 

17 to be sent for a supplemental claim that is filed 

18 within the timeframe set forth in subsections 

19 (a)(2)(B) and (a)(2)(D) of section 5110 of this 

20 title.’’. 

21 (c) Section 5103A(f) of title 38, United States Code, 

22 is amended to read as follows: 

23 ‘‘(a) RULE WITH RESPECT TO DISALLOWED

24 CLAIMS.—Nothing in this section shall be construed to re25 quire the Secretary to readjudicate a claim that has been 


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1 disallowed except when new and relevant evidence is pre2 sented or secured, as described in section 5108 of this 

3 title.’’. 

4 (d) Chapter 51 of title 38, United States Code, is 

5 amended by adding the following new sections: 

6 ‘‘§ 5103B. Applicability of duty to assist 

7 ‘‘(a) The Secretary’s duty to assist under section 

8 5103A of this title shall apply only to a claim, or supple9 mental claim, for a benefit under a law administered by 

10 the Secretary until the time that a claimant is provided 

11 notice of the Agency of Original Jurisdiction’s decision 

12 with respect to such claim, or supplemental claim, under 

13 section 5104 of this title. 

14 ‘‘(b) The Secretary’s duty to assist under section 

15 5103A of this title shall not apply to higher-level review 

16 by the Agency of Original Jurisdiction, pursuant to section 

17 5104B of this title, or to review on appeal by the Board 

18 of Veterans’ Appeals. 

19 ‘‘(c) CORRECTION OF DUTY TO ASSIST ERRORS.— 

20 ‘‘(1) HIGHER-LEVEL REVIEW.—If, during re21 view of the Agency of Original Jurisdiction’s deci22 sion under section 5104B of this title, the higher23 level reviewer identifies an error on the part of the 

24 Agency of Original Jurisdiction to satisfy its duties 

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1 curred prior to the Agency of Original Jurisdiction’s 

2 decision being reviewed, unless the claim can be 

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

4 the claim for correction of such error and readjudi5 cation. 

6 ‘‘(2) BOARD OF VETERANS’ APPEALS.—If the 

7 Board, during review on appeal of an Agency of 

8 Original Jurisdiction decision, identifies an error on 

9 the part of the Agency of Original Jurisdiction to 

10 satisfy its duties under section 5103A of this title, 

11 and that error occurred prior to the Agency of Origi12 nal Jurisdiction decision on appeal, unless the claim 

13 can be granted in full, the Board shall remand the 

14 claim to the Agency of Original Jurisdiction for cor15 rection of such error and readjudication. Remand for 

16 correction of such error may include directing the 

17 Agency of Original Jurisdiction to obtain an advi18 sory medical opinion under section 5109 of this title. 

19 ‘‘§ 5104A. Binding nature of favorable findings 

20 ‘‘Any finding favorable to the claimant as described 

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

22 subsequent adjudicators within the department, unless 

23 clear and convincing evidence is shown to the contrary to 

24 rebut such favorable finding. 


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1 ‘‘§ 5104B. Higher-level review by the Agency of Origi2 nal Jurisdiction 

3 ‘‘(a) IN GENERAL.—The claimant may request a re4 view of the decision of the Agency of Original Jurisdiction 

5 by a higher-level adjudicator within the Agency of Original 

6 Jurisdiction. 

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

8 for higher-level review by the Agency of Original Jurisdic9 tion must be in writing in the form prescribed by the Sec10 retary and made within one year of the notice of the Agen11 cy of Original Jurisdiction’s decision. Such request may 

12 specifically indicate whether such review is requested by 

13 a higher-level adjudicator at the same office within the 

14 Agency of Original Jurisdiction or by an adjudicator at 

15 a different office of the Agency of Original Jurisdiction. 

16 ‘‘(c) DECISION.—Notice of a higher-level review deci17 sion under this section shall be provided in writing. 

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

20 limited to the evidence of record in the Agency of Original 

21 Jurisdiction’s decision being reviewed. 

22 ‘‘(e) DE NOVO REVIEW.—Higher-level review under 

23 this section shall be de novo.’’. 

24 (e) Section 5104(b) of title 38, United States Code, 

25 is amended to read as follows: 


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

2 sought, the notice required by subsection (a) shall also in3 clude— 

4 ‘‘(1) identification of the issues adjudicated; 

5 ‘‘(2) a summary of the evidence considered by 

6 the Secretary; 

7 ‘‘(3) a summary of the applicable laws and reg8 ulations; 

9 ‘‘(4) identification of findings favorable to the 

10 claimant; 

11 ‘‘(5) identification of elements not satisfied 

12 leading to the denial; 

13 ‘‘(6) an explanation of how to obtain or access 

14 evidence used in making the decision; and 

15 ‘‘(7) if applicable, identification of the criteria 

16 that must be satisfied to grant service connection or 

17 the next higher level of compensation.’’. 

18 (f) Section 5108 of title 38, United States Code, is 

19 amended to read as follows: 

20 ‘‘§ 5108. Supplemental claims 

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

22 with respect to a supplemental claim, the Secretary shall 

23 readjudicate the claim taking into consideration any evi24 dence added to the record prior to the former disposition 

25 of the claim.’’. 


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1 (g) Section 5109 of title 38, United States Code, is 

2 amended by adding at the end the following new sub3 section: 

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

5 a claim to direct the Agency of Original Jurisdiction to 

6 obtain an advisory medical opinion under this section to 

7 correct an error on the part of the Agency of Original Ju8 risdiction to satisfy its duties under section 5103A of this 

9 title when such error occurred prior to the Agency of 

10 Original Jurisdiction’s decision on appeal. The Board’s re11 mand instructions shall include the questions to be posed 

12 to the independent medical expert providing the advisory 

13 medical opinion.’’. 

14 (h) Section 5110 of title 38, United States Code, is 

15 amended— 

16 (1) by amending subsection (a) to read as fol17 lows: 

18 ‘‘(a)(1) IN GENERAL.—Unless specifically provided 

19 otherwise in this chapter, the effective date of an award 

20 based on an initial claim, or a supplemental claim, of com21 pensation, dependency and indemnity compensation, or 

22 pension, shall be fixed in accordance with the facts found, 

23 but shall not be earlier than the date of receipt of applica24 tion therefor. 


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1 ‘‘(2) EFFECT OF CONTINUOUS PURSUIT OF A CLAIM

2 ON EFFECTIVE DATE OF AWARD.—For purposes of ap3 plying the effective date rules in this section, the date of 

4 application shall be considered the date of the filing of 

5 the initial application for a benefit provided that the claim 

6 is continuously pursued by filing any of the following ei7 ther alone or in succession— 

8 ‘‘(A) a request for higher-level review under sec9 tion 5104B of this title within one year of an Agen10 cy of Original Jurisdiction decision; 

11 ‘‘(B) a supplemental claim under section 5108 

12 of this title within one year of an Agency of Original 

13 Jurisdiction decision; 

14 ‘‘(C) a notice of disagreement within one year 

15 of an Agency of Original Jurisdiction decision; or 

16 ‘‘(D) a supplemental claim under section 5108 

17 of this title within one year of a decision of the 

18 Board of Veterans’ Appeals. 

19 ‘‘(3) SUPPLEMENTAL CLAIMS RECEIVED MORE

20 THAN ONE YEAR AFTER AN AGENCY OF ORIGINAL JU21 RISDICTION DECISION OR DECISION BY THE BOARD OF

22 VETERANS’ APPEALS.—Except as otherwise provided in 

23 this section, for supplemental claims received more than 

24 one year after an Agency of Original Jurisdiction decision 

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1 tive date shall be fixed in accordance with the facts found, 

2 but shall not be earlier than the date of receipt of the 

3 supplemental claim.’’; and 

4 (2) in subsection (i) by— 

5 (A) striking ‘‘reopened’’ and replacing it 

6 with ‘‘readjudicated’’; 

7 (B) striking ‘‘material’’ and replacing it 

8 with ‘‘relevant’’; and 

9 (C) striking ‘‘reopening’’ and replacing it 

10 with ‘‘readjudication’’. 

11 (i) Section 5111(d)(1) of title 38, United States 

12 Code, is amended by striking ‘‘or reopened award;’’ and 

13 replacing it with ‘‘award or award based on a supple14 mental claim;’’. 

15 (j) Section 5904 of title 38, United States Code, is 

16 amended— 

17 (1) in subsection (c)(1) by striking ‘‘notice of 

18 disagreement is filed’’ and replacing it with ‘‘claim19 ant is provided notice of the Agency of Original Ju20 risdiction’s initial decision under section 5104 of this 

21 title’’; and 

22 (2) in subsection (c)(2) by striking ‘‘notice of 

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1 risdiction’s initial decision under section 5104 of this 

2 title’’. 

3 (k) Section 7103 of title 38, United States Code, is 

4 amended— 

5 (1) in subsection (b)(1)(A) by striking ‘‘heard’’ 

6 and replacing it with ‘‘decided’’; and 

7 (2) in subsection (b)(1)(B) by striking ‘‘heard’’ 

8 and replacing it with ‘‘decided’’. 

9 (l) Section 7104(b) of title 38, United States Code, 

10 is amended by striking ‘‘reopened’’ and replacing it with 

11 ‘‘readjudicated’’. 

12 (m) Section 7105 of title 38, United States Code, is 

13 amended— 

14 (1) in subsection (a)— 

15 (A) by striking the first sentence and re16 placing it with ‘‘Appellate review will be initi17 ated by the filing of a notice of disagreement in 

18 the form prescribed by the Secretary.’’; and 

19 (B) by striking ‘‘hearing and’’; 

20 (2) by amending subsection (b) to read as fol21 lows: 

22 ‘‘(b)(1) Except in the case of simultaneously con23 tested claims, notice of disagreement shall be filed within 

24 one year from the date of the mailing of notice of the 

25 Agency of Original Jurisdiction’s decision under section 


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1 5104, 5104B, or 5108. A notice of disagreement post2 marked before the expiration of the one-year period will 

3 be accepted as timely filed. A question as to timeliness 

4 or adequacy of the notice of disagreement shall be decided 

5 by the Board. 

6 ‘‘(2) Notices of disagreement must be in writing, 

7 must set out specific allegations of error of fact or law, 

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

9 guardian, or such accredited representative, attorney, or 

10 authorized agent as may be selected by the claimant or 

11 legal guardian. Not more than one recognized organiza12 tion, attorney, or agent will be recognized at any one time 

13 in the prosecution of a claim. Notices of disagreement 

14 must be filed with the Board. 

15 ‘‘(3) The notice of disagreement shall indicate wheth16 er the claimant requests a hearing before the Board, re17 quests an opportunity to submit additional evidence with18 out a Board hearing, or requests review by the Board 

19 without a hearing or submission of additional evidence. If 

20 the claimant does not expressly request a Board hearing 

21 in the notice of disagreement, no Board hearing will be 

22 held.’’; 

23 (3) by amending subsection (c) to read as fol24 lows: 


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1 ‘‘(c) If no notice of disagreement is filed in accord2 ance with this chapter within the prescribed period, the 

3 Agency of Original Jurisdiction’s action or decision shall 

4 become final and the claim will not thereafter be readjudi5 cated or allowed, except as may otherwise be provided by 

6 section 5104B or 5108 of this title or regulations not in7 consistent with this title.’’; 

8 (4) by striking subsections (d)(1) through 

9 (d)(5); 

10 (5) by adding a new subsection (d) to read as 

11 follows: 

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

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

14 law in the decision being appealed.’’; and 

15 (6) by striking subsection (e). 

16 (n) Section 7105A(b) of title 38, United States Code, 

17 is amended to read as follows: 

18 ‘‘(b) The substance of the notice of disagreement will 

19 be communicated to the other party or parties in interest 

20 and a period of thirty days will be allowed for filing a brief 

21 or argument in response thereto. Such notice shall be for22 warded to the last known address of record of the parties 

23 concerned, and such action shall constitute sufficient evi24 dence of notice.’’. 


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1 (o) Strike section 7106 of title 38, United States 

2 Code. 

3 (p) Section 7107 of title 38, United States Code, is 

4 amended— 

5 (1) by amending subsection (a) to read as fol6 lows: 

7 ‘‘(a) The Board shall maintain two separate dockets. 

8 A non-hearing option docket shall be maintained for cases 

9 in which no Board hearing is requested and no additional 

10 evidence will be submitted. A separate and distinct hearing 

11 option docket shall be maintained for cases in which a 

12 Board hearing is requested in the notice of disagreement 

13 or in which no Board hearing is requested, but the appel14 lant requests, in the notice of disagreement, an oppor15 tunity to submit additional evidence. Except as provided 

16 in subsection (b), each case before the Board will be de17 cided in regular order according to its respective place on 

18 the Board’s non-hearing option docket or the hearing op19 tion docket.’’; 

20 (2) by amending subsection (b) to read as fol21 lows: 

22 ‘‘(b) ADVANCEMENT ON THE DOCKET.—A case on ei23 ther the Board’s non-hearing option docket or hearing op24 tion docket, may, for cause shown, be advanced on motion 

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1 tion shall set forth succinctly the grounds upon which the 

2 motion is based. Such a motion may be granted only— 

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

4 general application affecting other claims; 

5 ‘‘(2) if the appellant is seriously ill or is under 

6 severe financial hardship; or 

7 ‘‘(3) for other sufficient cause shown.’’; 

8 (3) by amending subsection (c) to read as fol9 lows: 

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

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

12 cases on the Board hearing option docket in which a hear13 ing is requested in the notice of disagreement, the Board 

14 shall notify the appellant whether a Board hearing will 

15 be held— 

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

17 ‘‘(B) by picture and voice transmission at a fa18 cility of the Department where the Secretary has 

19 provided suitable facilities and equipment to conduct 

20 such hearings. 

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

22 Board’s principal location as described in subsection 

23 (c)(1)(A) of this section, the appellant may alternatively 

24 request a hearing as described in subsection (c)(1)(B) of 


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1 this section. If so requested, the Board shall grant such 

2 request. 

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

4 and voice transmission as described in subsection 

5 (c)(1)(B) of this section, the appellant may alternatively 

6 request a hearing as described in subsection (c)(1)(A) of 

7 this section. If so requested, the Board shall grant such 

8 request.’’; and 

9 (4) by striking subsections (d) and (e) and re10 designating subsection (f) as subsection (d). 

11 (q) Strike section 7109 of title 38, United States 

12 Code. 

13 (r) Section 7111(e) of title 38, United States Code, 

14 is amended by striking ‘‘merits, without referral to any 

15 adjudicative or hearing official acting on behalf of the Sec16 retary.’’ and replacing it with ‘‘merits.’’. 

17 (s) Chapter 71 of title 38, United States Code, is 

18 amended by adding the following new section: 

19 ‘‘§ 7113. Evidentiary record before the board 

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

21 which a Board hearing is not requested in the notice of 

22 disagreement, the evidentiary record before the Board 

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

24 the Agency of Original Jurisdiction decision on appeal. 


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1 ‘‘(b) HEARING OPTION DOCKET.—(1) HEARING RE2 QUESTED.—Except as provided in paragraph (2) of this 

3 subsection, for cases on the hearing option docket in which 

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

5 evidentiary record before the Board shall be limited to the 

6 evidence of record at the time of the Agency of Original 

7 Jurisdiction decision on appeal. 

8 ‘‘(2) EXCEPTIONS.—The evidentiary record before 

9 the Board for cases on the hearing option docket in which 

10 a hearing is requested, shall include each of the following, 

11 which the Board shall consider in the first instance— 

12 ‘‘(A) evidence submitted by the appellant and 

13 his or her representative, if any, at the Board hear14 ing; and 

15 ‘‘(B) evidence submitted by the appellant and 

16 his or her representative, if any, within 90 days fol17 lowing the Board hearing. 

18 ‘‘(3) HEARING NOT REQUESTED.—(A) Except as 

19 provided in subparagraph (B) of this paragraph, for cases 

20 on the hearing option docket in which a hearing is not 

21 requested in the notice of disagreement, the evidentiary 

22 record before the Board shall be limited to the evidence 

23 considered by the Agency of Original Jurisdiction in the 

24 decision on appeal. 


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

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

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

4 the Board shall consider in the first instance— 

5 ‘‘(i) evidence submitted by the appellant and his 

6 or her representative, if any, with the notice of dis7 agreement; and 

8 ‘‘(ii) evidence submitted by the appellant and 

9 his or her representative, if any, within 90 days fol10 lowing receipt of the notice of disagreement.’’. 

11 (t) CONFORMING AMENDMENT.—The heading of sec12 tion 7105 is amended by striking ‘‘notice of disagreement 

13 and’’. 

14 (u) CLERICAL AMENDMENTS.— 

15 (1) The table of sections at the beginning of 

16 chapter 51 of title 38, United States Code, is 

17 amended— 

18 (A) by inserting after the item relating to 

19 section 5103A the following new item: 

‘‘5103B. Applicability of duty to assist.’’; 

20 and 

21 (B) by inserting after the item relating to 

22 section 5104 the following new items: 

‘‘5104A. Binding nature of favorable findings. 

‘‘5104B. Higher-level review by the Agency of Original Jurisdiction.’’. 


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1 (2) The item relating to section 5108 in the 

2 table of sections at the beginning of chapter 51 of 

3 title 38, United States Code, is amended by striking 

4 ‘‘Reopening disallowed claims.’’ and replacing it with 

5 ‘‘Supplemental claims.’’. 

6 (3) The table of sections at the beginning of 

7 chapter 71 of title 38, United States Code, is 

8 amended by— 

9 (A) striking the item relating to section 

10 7106; 

11 (B) striking the item relating to section 

12 7109; and 

13 (C) adding at the end the following new 

14 item: 

‘‘7113. The evidentiary record before the Board.’’. 

15 (4) The item relating to section 7105 in the 

16 table of sections at the beginning of chapter 71 of 

17 title 38, United States Code, is amended by striking 

18 ‘‘notice of disagreement and’’. 

Æ 


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