II

103D CONGRESS

2D SESSION S. 1904

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

procedures of the Board of Veterans’ Appeals.

IN THE SENATE OF THE UNITED STATES

MARCH 8 (legislative day, FEBRUARY 22), 1994

Mr. ROCKEFELLER (for himself, Mr. MURKOWSKI, Mr. DECONCINI, Mr. GRAHAM, Mr. AKAKA, Mr. DASCHLE, and Mr. CAMPBELL) 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 improve the

organization and procedures of the Board of Veterans’

Appeals.

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

3 SECTION 1. ORGANIZATION AND PROCEDURES OF BOARD

4 OF VETERANS’ APPEALS.

5 (a) NUMBER OF MEMBERS.—Subsection (a) of sec6 tion 7101 of title 38, United States Code, is amended by

7 striking out ‘‘(not more than 65)’’.

8 (b) ACTING AND TEMPORARY MEMBERS.—(1) Such

9 section is further amended—
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1 (1) in subsection (c)—

2 (A) by striking out paragraph (1) and in3 serting in lieu thereof the following new para4 graph (1):

5 ‘‘(1)(A) The Chairman may from time to time des6 ignate one or more employees of the Department to serve

7 as acting members of the Board. Except as provided in

8 subparagraph (B), any such designation shall be for a pe9 riod not to exceed 90 days, as determined by the Chair10 man.

11 ‘‘(B) An individual designated as an acting member

12 of the Board may continue to serve as an acting member

13 of the Board in the making of any determination on a

14 proceeding for which the individual was designated as an

15 acting member of the Board, notwithstanding the termi16 nation of the period of designation of the individual as

17 an acting member of the Board under subparagraph (A)

18 or (C).

19 ‘‘(C) An individual may not serve as an acting mem20 ber of the Board for more than 270 days during any 1-

21 year period.’’;

22 (B) by striking out paragraph (2);

23 (C) by redesignating paragraph (3) as

24 paragraph (2); and
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1 (D) in paragraph (2), as so redesignated,

2 by striking out ‘‘the number of temporary

3 Board members’’ and all that follows through

4 the period at the end and inserting in lieu

5 thereof ‘‘the number of acting members of the

6 Board designated under such paragraph (1)

7 during the year for which the report is made.’’;

8 and

9 (2) in subsection (e), by striking out ‘‘a tem10 porary or’’ and inserting in lieu thereof ‘‘an’’.

11 (c) REPORT ON BOARD ACTIVITIES.—Subsection (d)

12 of such section is amended—

13 (1) in paragraph (2)—

14 (A) by striking out ‘‘and’’ at the end of

15 subparagraph (D);

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

17 of subparagraph (E) and inserting in lieu there18 of ‘‘; and’’; and

19 (C) by adding at the end the following new

20 subparagraph:

21 ‘‘(F) the number of employees of the Depart22 ment designated under subsection (c)(1) of this sec23 tion to serve as acting members of the Board during

24 that year and the number of cases in which each

25 such member participated during that year.’’; and
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1 (2) in paragraph (3)(B), by striking out ‘‘as re2 quired by section 7103(d) of this title’’.

3 (d) APPEALS DECISIONS.—(1) Chapter 71 of such

4 title is amended by striking out sections 7102 and 7103

5 and inserting in lieu thereof the following new sections

6 7102 and 7103:

7 ‘‘§ 7102. Decisions by the Board

8 ‘‘A proceeding instituted before the Board may be as9 signed to one or more members of the Board. A proceeding

10 assigned to more than one member shall be assigned to

11 a panel of not less than three members of the Board. A

12 member or panel assigned a proceeding shall make a de13 termination thereon, including any motion filed in connec14 tion therewith. The member or panel, as the case may be,

15 shall make a report under section 7104(d) of this title on

16 any such determination, which report shall constitute the

17 final disposition of the proceeding by the member or panel.

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

19 ‘‘(a) Subject to subsections (b) and (c) of this section,

20 the decision of the Board determining a matter under sec21 tion 7102 of this title is final.

22 ‘‘(b) The Chairman may order reconsideration of the

23 decision in a case in accordance with subsection (c) of this

24 section. Such an order may be made on the Chairman’s

25 initiative or upon motion of the claimant.
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1 ‘‘(c)(1) Upon the order of the Chairman for reconsid2 eration of a decision in a case, the case shall be referred—

3 ‘‘(A) in the case of a matter originally heard by

4 a single member of the Board, to a panel of not less

5 than three members of the Board.

6 ‘‘(B) in the case of a matter originally heard by

7 a panel of members of the Board, to an enlarged

8 panel of the Board.

9 ‘‘(2) A panel referred to in paragraph (1) of this sub10 section may not include the member or members who

11 made the original decision subject to reconsideration.

12 ‘‘(3) A panel reconsidering a matter under this sub13 section shall render its decision after reviewing the entire

14 record before the Board. The decision of a majority of the

15 members of the panel shall be final.

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

17 obvious error in the record, without regard to whether

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

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

20 chapter is amended by striking out the items relating to

21 sections 7102 and 7103 and inserting in lieu thereof the

22 following:

‘‘7102. Decisions by the Board.

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

23 (e) PROCEDURES RELATING TO APPEALS.—(1)(A)

24 Section 7107 of such title is amended to read as follows:
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1 ‘‘§ 7107. Appeals: dockets; hearings

2 ‘‘(a)(1) All cases received pursuant to application for

3 review on appeal shall be considered and decided in regu4 lar order according to their places upon the docket.

5 ‘‘(2) A case referred to in paragraph (1) of this sub6 section may, for cause shown, be advanced on motion for

7 earlier consideration and determination. Any such motion

8 shall set forth succinctly the grounds upon which it is

9 based and may not be granted unless the case involves

10 interpretation of law of general application affecting other

11 claims, or for other sufficient cause shown.

12 ‘‘(b) The Board shall decide any appeal only after af13 fording the appellant an opportunity for a hearing.

14 ‘‘(c) A hearing docket shall be maintained and formal

15 recorded hearings shall be held by such member or mem16 bers of the Board as the Chairman may designate. Such

17 member or members designated by the Chairman to con18 duct the hearing shall participate in making the final de19 termination of the claim.

20 ‘‘(d)(1) An appellant may request a hearing before

21 the Board at its principal location or at a regional office

22 of the Department.

23 ‘‘(2)(A) Except as provided in subparagraph (B) of

24 this paragraph, hearings shall be scheduled in the order

25 in which requests for such hearings are received by the

26 Department.
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1 ‘‘(B) In a case in which the Secretary is aware that

2 the appellant is seriously ill or is under severe financial

3 hardship, a hearing may be scheduled at a time earlier

4 than would be provided for under subparagraph (A) of this

5 paragraph.

6 ‘‘(e)(1) At the request of the Chairman, the Secretary

7 may provide suitable facilities and equipment to the Board

8 or other components of the Department to enable an ap9 pellant located at a facility within the area served by a

10 regional office to participate, through voice transmission

11 or through picture and voice transmission, by electronic

12 or other means, in a hearing with a Board member or

13 members sitting at the Board’s principal location.

14 ‘‘(2) When such facilities and equipment are avail15 able, the Chairman may afford the appellant an oppor16 tunity to participate in a hearing before the Board

17 through the use of such facilities and equipment in lieu

18 of a hearing held by personally appearing before a Board

19 member or panel as provided in subsection (d) of this sec20 tion. Any such hearing shall be conducted in the same

21 manner as, and shall be considered the equivalent of, a

22 personal hearing. If the appellant declines to participate

23 in a hearing through the use of such facilities and equip24 ment, the opportunity of the appellant to a hearing as pro25 vided in such subsection (d) shall not be affected.’’.
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1 (B) The item relating to section 7107 in the table

2 of sections at the beginning of chapter 71 of such title

3 is amended to read as follows:

‘‘7107. Appeals: dockets; hearings.’’.

4 (2)(A) Section 7110 of such title is repealed.

5 (B) The table of sections at the beginning of chapter

6 71 of such title is amended by striking out the item relat7 ing to section 7110.

8 (f) TECHNICAL CORRECTION.—Section 7104(a) of

9 such title is amended by striking out ‘‘211(a)’’ and insert10 ing in lieu thereof ‘‘511(a)’’.

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