I 

114TH CONGRESS 

2D SESSION H. R. 5620 

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 HOUSE OF REPRESENTATIVES 

JULY 5, 2016 

Mr. MILLER of Florida introduced the following bill; which was referred to 

the Committee on Veterans’ Affairs, and in addition to the Committee 

on Oversight and Government Reform, for a period to be subsequently 

determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned 

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 2016’’. 


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

2 this Act is as follows: 

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. Senior executives: personnel actions based on performance or misconduct. 

Sec. 8. Treatment of whistleblower complaints in Department of Veterans Affairs. 

Sec. 9. Appeals reform. 

Sec. 10. Limitation on awards and bonuses paid to senior executive employees 

of Department of Veterans Affairs. 

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

4 Except as otherwise expressly provided, whenever in 

5 this Act an amendment or repeal is expressed in terms 

6 of an amendment to, or repeal of, a section or other provi7 sion, the reference shall be considered to be made to a 

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

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

10 PERFORMANCE OR MISCONDUCT. 

11 (a) IN GENERAL.—Chapter 7 is amended by adding 

12 at the end the following new section: 

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

14 performance or misconduct 

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

16 demote an individual who is an employee of the Depart17 ment if the Secretary determines the performance or misVerDate Sep 11 2014 02:16 Jul 06, 2016 Jkt 059200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5620.IH H5620

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1 conduct of the individual warrants such removal or demo2 tion. If the Secretary so removes or demotes such an indi3 vidual, the Secretary may— 

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

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

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

7 ‘‘(A) a reduction in grade for which the in8 dividual is qualified and that the Secretary de9 termines is appropriate; or 

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

11 that the Secretary determines is appropriate. 

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

13 Notwithstanding any other provision of law, any individual 

14 subject to a demotion under subsection (a)(2)(A) shall, be15 ginning on the date of such demotion, receive the annual 

16 rate of pay applicable to such grade. 

17 ‘‘(2) An individual so demoted may not be placed on 

18 administrative leave or any other category of paid leave 

19 during the period during which an appeal (if any) under 

20 this section is ongoing, and may only receive pay if the 

21 individual reports for duty. If an individual so demoted 

22 does not report for duty, such individual shall not receive 

23 pay or other benefits pursuant to subsection (e)(5). 

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

25 after removing or demoting an individual under subsection 


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1 (a), the Secretary shall submit to the Committees on Vet2 erans’ Affairs of the Senate and House of Representatives 

3 notice in writing of such removal or demotion and the rea4 son for such removal or demotion. 

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

6 7513 of title 5 shall apply with respect to a removal or 

7 a demotion under this section, except that the period for 

8 notice and response, which includes the advance notice pe9 riod required by paragraph (1) of such subsection and the 

10 response period required by paragraph (2) of such sub11 section, shall not exceed a total of ten calendar days. 

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

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

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

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

16 be appealed to the Merit Systems Protection Board under 

17 section 7701 of title 5. 

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

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

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

21 demotion. 

22 ‘‘(e) EXPEDITED REVIEW BY MSPB.—(1) Upon re23 ceipt of an appeal under subsection (d)(3)(A), the Merit 

24 Systems Protection Board shall expedite any such appeal 

25 under such section and, in any such case, shall issue a 


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1 decision not later than 60 days after the date of the ap2 peal. 

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

4 5, the Merit Systems Protection Board shall uphold the 

5 decision of the Secretary to remove or demote an employee 

6 under subsection (a) if the decision is supported by sub7 stantial evidence. 

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

9 Board under paragraph (1), and any final removal or de10 motion described in paragraph (4), may be appealed to 

11 the United States Court of Appeals for the Federal Circuit 

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

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

14 this title. 

15 ‘‘(4) In any case in which the Merit Systems Protec16 tion Board cannot issue a decision in accordance with the 

17 60-day requirement under paragraph (1), the removal or 

18 demotion is final. In such a case, the Merit Systems Pro19 tection Board shall, within 14 days after the date that 

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

21 the Committees on Veterans’ Affairs of the Senate and 

22 House of Representatives a report that explains the rea23 sons why a decision was not issued in accordance with 

24 such requirement. 


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

2 stay any removal or demotion under this section. 

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

4 which an individual appeals a removal from the civil serv5 ice under subsection (d) and ending on the date that the 

6 Merit Systems Protection Board issues a final decision on 

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

8 awards, bonuses, incentives, allowances, differentials, stu9 dent loan repayments, special payments, or benefits. 

10 ‘‘(7) To the maximum extent practicable, the Sec11 retary shall provide to the Merit Systems Protection 

12 Board such information and assistance as may be nec13 essary to ensure an appeal under this subsection is expe14 dited. 

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

16 case of an individual seeking corrective action (or on be17 half of whom corrective action is sought) from the Office 

18 of Special Counsel based on an alleged prohibited per19 sonnel practice described in section 2302(b) of title 5, the 

20 Secretary may not remove or demote such individual 

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

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

23 ‘‘(2) In the case of an individual who has filed a whis24 tleblower complaint, as such term is defined in section 741 

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


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

2 respect to the whistleblower complaint has been made. 

3 ‘‘(g) TERMINATION OF INVESTIGATIONS BY OFFICE

4 OF SPECIAL COUNSEL.—Notwithstanding any other provi5 sion of law, the Special Counsel (established by section 

6 1211 of title 5) may terminate an investigation of a pro7 hibited personnel practice alleged by an employee or 

8 former employee of the Department after the Special 

9 Counsel provides to the employee or former employee a 

10 written statement of the reasons for the termination of 

11 the investigation. Such statement may not be admissible 

12 as evidence in any judicial or administrative proceeding 

13 without the consent of such employee or former employee. 

14 ‘‘(h) RELATION TO OTHER AUTHORITIES.—The au15 thority provided by this section is in addition to the au16 thority provided by subchapter V of chapter 74 of this 

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

18 of such title, and any other authority with respect to dis19 ciplining an individual. 

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

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

22 occupying a position at the Department but does not 

23 include— 

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

25 in section 713(g)(1); or 


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1 ‘‘(B) a political appointee. 

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

3 such term in section 7511(a) of title 5. 

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

5 duty, malfeasance, or failure to accept a directed re6 assignment or to accompany a position in a transfer 

7 of function. 

8 ‘‘(4) The term ‘political appointee’ means an in9 dividual who is— 

10 ‘‘(A) employed in a position described 

11 under sections 5312 through 5316 of title 5 

12 (relating to the Executive Schedule); 

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

14 emergency appointee, or noncareer appointee in 

15 the Senior Executive Service, as defined under 

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

17 section 3132(a) of title 5; or 

18 ‘‘(C) employed in a position of a confiden19 tial or policy-determining character under 

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

21 of the Code of Federal Regulations.’’. 

22 (b) CLERICAL AND CONFORMING AMENDMENTS.— 

23 (1) CLERICAL.—The table of sections at the be24 ginning of chapter 7 is amended by inserting after 


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1 the item relating to section 713 the following new 

2 item: 

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

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

4 United States Code, is amended— 

5 (A) by striking ‘‘or’’ at the end of para6 graph (2); 

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

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

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

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

11 715 of title 38.’’. 

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

13 SENIOR EXECUTIVE SERVICE WITHIN THE 

14 DEPARTMENT OF VETERANS AFFAIRS CON15 VICTED OF CERTAIN CRIMES. 

16 (a) REDUCTION OF BENEFITS.— 

17 (1) IN GENERAL.—Chapter 7 is further amend18 ed by inserting after section 715, as added by sec19 tion 3, the following new section: 

20 ‘‘§ 717. Senior executives: reduction of benefits of in21 dividuals convicted of certain crimes 

22 ‘‘(a) REDUCTION OF ANNUITY FOR REMOVED EM23 PLOYEE.—(1) The Secretary shall order that the covered 

24 service of an individual removed from a senior executive 

25 position for performance or misconduct under section 713 


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

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

3 into account for purposes of calculating an annuity with 

4 respect to such individual under chapter 83 or chapter 84 

5 of title 5, if— 

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

7 influenced the individual’s performance while em8 ployed in the senior executive position; and 

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

10 is afforded— 

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

12 to respond to the order; and 

13 ‘‘(ii) consistent with paragraph (2), an op14 portunity to appeal the order to another depart15 ment or agency of the Federal Government. 

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

17 paragraph (1)(B)(ii) is not made by the applicable depart18 ment or agency of the Federal Government within 30 days 

19 after receiving such appeal, the order of the Secretary 

20 under paragraph (1) shall be final and not subject to fur21 ther appeal. 

22 ‘‘(b) REDUCTION OF ANNUITY FOR RETIRED EM23 PLOYEE.—(1) The Secretary may order that the covered 

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

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1 tion 713 of this title, chapter 43 or subchapter V of chap2 ter 75 of title 5, or any other provision of law but who 

3 leaves employment at the Department prior to the 

4 issuance of a final decision with respect to such action 

5 shall not be taken into account for purposes of calculating 

6 an annuity with respect to such individual under chapter 

7 83 or chapter 84 of title 5, if— 

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

9 influenced the individual’s performance while em10 ployed in the senior executive position; and 

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

12 is afforded notice and an opportunity for a hearing 

13 conducted by another department or agency of the 

14 Federal Government. 

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

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

17 a hearing referred to in paragraph (1)(B) that determines 

18 that such order is lawful. 

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

20 later than 30 days after the Secretary issues an order 

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

22 Personnel Management shall recalculate the annuity of the 

23 individual. 

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

25 of an individual shall be taken into account for purposes 


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

2 final and may not be reviewed by any department or agen3 cy or any court. 

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

5 with respect to whom an annuity is reduced under sub6 section (a) or (b) shall be entitled to be paid so much of 

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

8 period of covered service. 

9 ‘‘(e) SPOUSE OR CHILDREN EXCEPTION.—The Sec10 retary, in consultation with the Office of Personnel Man11 agement, shall prescribe regulations that may provide for 

12 the payment to the spouse or children of any individual 

13 referred to in subsection (a) or (b) of any amounts which 

14 (but for this subsection) would otherwise have been non15 payable by reason of such subsections. Any such regula16 tions shall be consistent with the requirements of section 

17 8332(o)(5) and 8411(l)(5) of title 5, as the case may be. 

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

19 ‘‘(1) The term ‘covered service’ means, with re20 spect to an individual subject to a removal or trans21 fer for performance or misconduct under section 713 

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

23 75 of title 5, or any other provision of law, the pe24 riod of service beginning on the date that the Sec25 retary determines under such applicable provision 


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1 that the individual engaged in activity that gave rise 

2 to such action and ending on the date that the indi3 vidual is removed or transferred from the senior ex4 ecutive position or leaves employment at the Depart5 ment prior to the issuance of a final decision with 

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

7 ‘‘(2) The term ‘lump-sum credit’ has the mean8 ing given such term in section 8331(8) or section 

9 8401(19) of title 5, as the case may be. 

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

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

12 this title. 

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

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

15 of title 5, as the case may be.’’. 

16 (2) CLERICAL AMENDMENT.—The table of sec17 tions at the beginning of chapter 7 of such title is 

18 amended by inserting after the item relating to sec19 tion 715, as added by section 3, the following new 

20 item: 

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

crimes.’’. 

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

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

23 to any action of removal or transfer under section 713 


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

2 the date of the enactment of this Act. 

3 SEC. 5. AUTHORITY TO RECOUP BONUSES OR AWARDS 

4 PAID TO EMPLOYEES OF DEPARTMENT OF 

5 VETERANS AFFAIRS. 

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

7 inserting after section 717, as added by section 4, the fol8 lowing new section: 

9 ‘‘§ 719. Recoupment of bonuses or awards paid to em10 ployees of Department 

11 ‘‘(a) RECOUPMENT.—Notwithstanding any other pro12 vision of law, the Secretary may issue an order directing 

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

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

15 the employee under title 5, including under chapters 45 

16 or 53 of such title, or this title if— 

17 ‘‘(1) the Secretary determines such repayment 

18 appropriate pursuant to regulations prescribed under 

19 subsection (c); and 

20 ‘‘(2) before such repayment, the employee is af21 forded notice and an opportunity for a hearing con22 ducted by another department or agency of the Fed23 eral Government. 


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

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

3 afforded— 

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

5 respond to the order; and 

6 ‘‘(B) consistent with paragraph (2), an oppor7 tunity to appeal the order to another department or 

8 agency of the Federal Government. 

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

10 paragraph (1)(B) is not made by the applicable depart11 ment or agency of the Federal Government within 30 days 

12 after receiving such appeal, the order of the Secretary 

13 under subsection (a) shall be final and not subject to fur14 ther appeal. 

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

16 regulations to carry out this section.’’. 

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

18 at the beginning of such chapter, as amended by section 

19 4, is amended by inserting after the item relating to sec20 tion 717 the following new item: 

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

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

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

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1 ment of Veterans Affairs on or after the date of the enact2 ment of this Act. 

3 (d) CONSTRUCTION.—Nothing in this Act or the 

4 amendments made by this Act may be construed to modify 

5 the certification issued by the Office of Personnel Manage6 ment and the Office of Management and Budget regarding 

7 the performance appraisal system of the Senior Executive 

8 Service of the Department of Veterans Affairs. 

9 SEC. 6. AUTHORITY TO RECOUP RELOCATION EXPENSES 

10 PAID TO OR ON BEHALF OF EMPLOYEES OF 

11 DEPARTMENT OF VETERANS AFFAIRS. 

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

13 adding at the end the following new section: 

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

15 behalf of employees of Department 

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

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

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

19 amount, paid to or on behalf of the employee under title 

20 5 for relocation expenses, including any expenses under 

21 section 5724 or 5724a of such title, or this title if— 

22 ‘‘(A) the Secretary determines that— 

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

24 fraud, waste, or malfeasance; and 


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1 ‘‘(ii) such repayment is appropriate pursu2 ant to regulations prescribed under subsection 

3 (c); and 

4 ‘‘(B) before such repayment is ordered, the in5 dividual is afforded— 

6 ‘‘(i) notice of the determination of the Sec7 retary and an opportunity to respond to the de8 termination; and 

9 ‘‘(ii) consistent with paragraph (2), an op10 portunity to appeal the determination to an11 other department or agency of the Federal Gov12 ernment. 

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

14 paragraph (1)(B)(ii) is not made by the applicable depart15 ment or agency of the Federal Government within 30 days 

16 after receiving such appeal, the order of the Secretary 

17 under paragraph (1) shall be final and not subject to fur18 ther appeal. 

19 ‘‘(b) REVIEW.—A decision regarding a repayment by 

20 an employee pursuant to subsection (a)(1)(B)(ii) is final 

21 and may not be reviewed by any department, agency, or 

22 court. 

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

24 regulations to carry out this section.’’. 


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

2 at the beginning of such chapter is further amended by 

3 adding at the end the following new item: 

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

Department.’’. 

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

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

6 apply with respect to an amount paid by the Secretary 

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

8 Department of Veterans Affairs for relocation expenses on 

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

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

11 amendments made by this section may be construed to 

12 modify the certification issued by the Office of Personnel 

13 Management and the Office of Management and Budget 

14 regarding the performance appraisal system of the Senior 

15 Executive Service of the Department of Veterans Affairs. 

16 SEC. 7. SENIOR EXECUTIVES: PERSONNEL ACTIONS BASED 

17 ON PERFORMANCE OR MISCONDUCT. 

18 (a) EXPANSION OF COVERED PERSONNEL AC19 TIONS.—Section 713 is amended in subsection (a)(1) by 

20 inserting after ‘‘such removal.’’ the following: ‘‘If the Sec21 retary determines that the performance or misconduct of 

22 such an individual does not merit removal from the senior 

23 executive service position, the Secretary may suspend, rep24 rimand, or admonish the individual.’’. 


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1 (b) REMOVAL OF APPEAL TO MERIT SYSTEMS PRO2 TECTION BOARD.—Section 713 is further amended— 

3 (1) in subsection (a)— 

4 (A) in paragraph (1), by striking ‘‘so re5 moves’’ and inserting ‘‘removes’’; and 

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

7 ‘‘(3) On the date that is 5 days before taking any 

8 personnel action against a senior executive under para9 graph (1), the Secretary shall provide the individual 

10 with— 

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

12 action, including the reasons for such action; and 

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

14 personnel action within the 5-day period.’’; 

15 (2) in subsection (b)(2)— 

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

17 inserting ‘‘under section 723’’; and 

18 (B) by striking the second sentence; 

19 (3) in subsection (c)— 

20 (A) by striking ‘‘30’’ and inserting ‘‘5’’; 

21 and 

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

23 removal or transfer’’ and inserting ‘‘, the rea24 son for such removal or transfer, the name and 

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1 ments and evidence pertaining to such removal 

2 or transfer’’; 

3 (4) by striking subsections (d) and (e) and in4 serting the following: 

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

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

7 ‘‘(2) A personnel action under this section— 

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

9 Disciplinary Appeals Board under section 723; and 

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

11 Protection Board under section 7701 of title 5.’’; 

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

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

14 (6) in subsection (f), as redesignated by para15 graph (5), by adding at the end the following: 

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

17 an individual in a temporary status without duties 

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

19 (c) REMOVAL OF EXPEDITED PROCEDURES.—Sec20 tion 707 of the Veterans Access, Choice, and Account21 ability Act of 2014 (38 U.S.C. 713 note) is amended by— 

22 (1) striking subsection (b); and 

23 (2) redesignating subsections (c) and (d) as 

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


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1 (d) SENIOR EXECUTIVE DISCIPLINARY APPEALS

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

3 section 721, as added by section 6, the following new sec4 tion: 

5 ‘‘§ 723. Senior Executive Disciplinary Appeals Board 

6 ‘‘(a) The Secretary shall from time to time appoint 

7 a board to hear appeals of any personnel action taken 

8 under section 713. Such board shall be known as the Sen9 ior Executive Disciplinary Appeals Board (hereinafter re10 ferred to as the ‘Board’). Each Board shall consist of 3 

11 employees of the Department. The Board shall have exclu12 sive jurisdiction to review any personnel action under sec13 tion 713. 

14 ‘‘(b) Upon an appeal of such a personnel action, the 

15 Senior Executive Disciplinary Appeals Board shall— 

16 ‘‘(1) review all evidence provided by the Sec17 retary and the appellant; and 

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

19 after the date of the appeal. 

20 ‘‘(c) The Board shall afford an employee appealing 

21 a personnel action an opportunity for an oral hearing. If 

22 such a hearing is held, the appellant may be represented 

23 by counsel. 

24 ‘‘(d) The Board shall uphold the decision of the Sec25 retary if— 


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1 ‘‘(1) there is substantial evidence supporting 

2 the decision; and 

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

4 the tolerable bounds of reasonableness. 

5 ‘‘(e) If the Board issues a decision under this section 

6 that reverses or otherwise mitigates the applicable per7 sonnel action, the Secretary may reverse the decision of 

8 the Board. Consistent with the requirements of subsection 

9 (g), the decision of the Secretary under this subsection 

10 shall be final. 

11 ‘‘(f) In any case in which the Board cannot issue a 

12 decision in accordance with the 21-day requirement under 

13 subsection (b)(2), the personnel action is final. 

14 ‘‘(g) A petition to review a final order or final deci15 sion of the Secretary or the Board under this section shall 

16 be filed in the United States Court of Appeals for the Fed17 eral Circuit. Any decision by such Court shall be in compli18 ance with section 7462(f)(2) of this title. 

19 ‘‘(h) During the period beginning on the date on 

20 which an individual appeals a removal from the civil serv21 ice under section 713(d) and ending on the date that the 

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

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

24 incentives, allowances, differentials, student loan repay25 ments, special payments, or benefits.’’. 


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1 (e) TECHNICAL AND CLERICAL AMENDMENTS.— 

2 (1) TECHNICAL AMENDMENT.—The section 

3 heading of section 713 is amended to read as fol4 lows: Senior executives: personnel actions 

5 based on performance or misconduct. 

6 (2) CLERICAL AMENDMENTS.—The table of 

7 contents for such chapter is further amended— 

8 (A) by striking the item relating to section 

9 713 and inserting the following: 

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

10 and 

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

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

12 (f) RULE OF CONSTRUCTION.—Nothing in this sec13 tion or section 731 of title 38, United States Code, (as 

14 added by subsection (c)) shall be construed to apply to 

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

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

17 Act. 

18 SEC. 8. TREATMENT OF WHISTLEBLOWER COMPLAINTS IN 

19 DEPARTMENT OF VETERANS AFFAIRS. 

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

21 adding at the end the following new subchapter: 


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1 ‘‘SUBCHAPTER II—WHISTLEBLOWER 

2 COMPLAINTS 

3 ‘‘§ 741. Whistleblower complaint defined 

4 ‘‘In this subchapter, the term ‘whistleblower com5 plaint’ means a complaint by an employee of the Depart6 ment disclosing, or assisting another employee to disclose, 

7 a potential violation of any law, rule, or regulation, or 

8 gross mismanagement, gross waste of funds, abuse of au9 thority, or substantial and specific danger to public health 

10 and safety. 

11 ‘‘§ 742. Treatment of whistleblower complaints 

12 ‘‘(a) FILING.—(1) In addition to any other method 

13 established by law in which an employee may file a whistle14 blower complaint, an employee of the Department may file 

15 a whistleblower complaint in accordance with subsection 

16 (g) with a supervisor of the employee. 

17 ‘‘(2) Except as provided by subsection (d)(1), in mak18 ing a whistleblower complaint under paragraph (1), an 

19 employee shall file the initial complaint with the imme20 diate supervisor of the employee. 

21 ‘‘(b) NOTIFICATION.—(1) Not later than four busi22 ness days after the date on which a supervisor receives 

23 a whistleblower complaint by an employee under this sec24 tion, the supervisor shall notify, in writing, the employee 

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1 sonable likelihood that the complaint discloses a violation 

2 of any law, rule, or regulation, or gross mismanagement, 

3 gross waste of funds, abuse of authority, or substantial 

4 and specific danger to public health and safety. The super5 visor shall retain written documentation regarding the 

6 whistleblower complaint and shall submit to the next-level 

7 supervisor a written report on the complaint. 

8 ‘‘(2) On a monthly basis, the supervisor shall submit 

9 to the appropriate director or other official who is superior 

10 to the supervisor a written report that includes the num11 ber of whistleblower complaints received by the supervisor 

12 under this section during the month covered by the report, 

13 the disposition of such complaints, and any actions taken 

14 because of such complaints pursuant to subsection (c). In 

15 the case in which such a director or official carries out 

16 this paragraph, the director or official shall submit such 

17 monthly report to the supervisor of the director or official. 

18 ‘‘(c) POSITIVE DETERMINATION.—If a supervisor 

19 makes a positive determination under subsection (b)(1) re20 garding a whistleblower complaint of an employee, the su21 pervisor shall include in the notification to the employee 

22 under such subsection the specific actions that the super23 visor will take to address the complaint. 

24 ‘‘(d) FILING COMPLAINT WITH NEXT-LEVEL SUPER25 VISORS.—(1) If any circumstance described in paragraph 


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1 (3) is met, an employee may file a whistleblower complaint 

2 in accordance with subsection (g) with the next-level su3 pervisor who shall treat such complaint in accordance with 

4 this section. 

5 ‘‘(2) An employee may file a whistleblower complaint 

6 with the Secretary if the employee has filed the whistle7 blower complaint to each level of supervisors between the 

8 employee and the Secretary in accordance with paragraph 

9 (1). 

10 ‘‘(3) A circumstance described in this paragraph are 

11 any of the following circumstances: 

12 ‘‘(A) A supervisor does not make a timely de13 termination under subsection (b)(1) regarding a 

14 whistleblower complaint. 

15 ‘‘(B) The employee who made a whistleblower 

16 complaint determines that the supervisor did not 

17 adequately address the complaint pursuant to sub18 section (c). 

19 ‘‘(C) The immediate supervisor of the employee 

20 is the basis of the whistleblower complaint. 

21 ‘‘(e) TRANSFER OF EMPLOYEE WHO FILES WHIS22 TLEBLOWER COMPLAINT.—If a supervisor makes a posi23 tive determination under subsection (b)(1) regarding a 

24 whistleblower complaint filed by an employee, the Sec25 retary shall— 


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1 ‘‘(1) inform the employee of the ability to vol2 unteer for a transfer in accordance with section 

3 3352 of title 5; and 

4 ‘‘(2) give preference to the employee for such a 

5 transfer in accordance with such section. 

6 ‘‘(f) PROHIBITION ON EXEMPTION.—The Secretary 

7 may not exempt any employee of the Department from 

8 being covered by this section. 

9 ‘‘(g) WHISTLEBLOWER COMPLAINT FORM.—(1) A 

10 whistleblower complaint filed by an employee under sub11 section (a) or (d) shall consist of the form described in 

12 paragraph (2) and any supporting materials or docu13 mentation the employee determines necessary. 

14 ‘‘(2) The form described in this paragraph is a form 

15 developed by the Secretary, in consultation with the Spe16 cial Counsel, that includes the following: 

17 ‘‘(A) An explanation of the purpose of the whis18 tleblower complaint form. 

19 ‘‘(B) Instructions for filing a whistleblower 

20 complaint as described in this section. 

21 ‘‘(C) An explanation that filing a whistleblower 

22 complaint under this section does not preclude the 

23 employee from any other method established by law 

24 in which an employee may file a whistleblower com25 plaint. 


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1 ‘‘(D) A statement directing the employee to in2 formation accessible on the Internet website of the 

3 Department as described in section 745(c). 

4 ‘‘(E) Fields for the employee to provide— 

5 ‘‘(i) the date that the form is submitted; 

6 ‘‘(ii) the name of the employee; 

7 ‘‘(iii) the contact information of the em8 ployee; 

9 ‘‘(iv) a summary of the whistleblower com10 plaint (including the option to append sup11 porting documents pursuant to paragraph (1)); 

12 and 

13 ‘‘(v) proposed solutions to complaint. 

14 ‘‘(F) Any other information or fields that the 

15 Secretary determines appropriate. 

16 ‘‘(3) The Secretary, in consultation with the Special 

17 Counsel, shall develop the form described in paragraph (2) 

18 by not later than 60 days after the date of the enactment 

19 of this section. 

20 ‘‘§ 743. Adverse actions against supervisory employ21 ees who commit prohibited personnel ac22 tions relating to whistleblower com23 plaints 

24 ‘‘(a) IN GENERAL.—(1) In accordance with para25 graph (2), the Secretary shall carry out the following adVerDate Sep 11 2014 02:16 Jul 06, 2016 Jkt 059200 PO 00000 Frm 00028 Fmt 6652 Sfmt 6201 E:\BILLS\H5620.IH H5620

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1 verse actions against supervisory employees whom the Sec2 retary, an administrative judge, the Merit Systems Protec3 tion Board, the Office of Special Counsel, an adjudicating 

4 body provided under a union contract, a Federal judge, 

5 or the Inspector General of the Department determines 

6 committed a prohibited personnel action described in sub7 section (c): 

8 ‘‘(A) With respect to the first offense, an ad9 verse action that is not less than a 14-day suspen10 sion and not more than removal. 

11 ‘‘(B) With respect to the second offense, re12 moval. 

13 ‘‘(2)(A) Except as provided by subparagraph (B), 

14 and notwithstanding subsections (b) and (c) of section 

15 7513 and section 7543 of title 5, the provisions of sub16 sections (d) and (e) of section 713 of this title shall apply 

17 with respect to an adverse action carried out under para18 graph (1). 

19 ‘‘(B) An employee who is notified of being the subject 

20 of a proposed adverse action under paragraph (1) may not 

21 be given more than five days following such notification 

22 to provide evidence to dispute such proposed adverse ac23 tion. If the employee does not provide any such evidence, 

24 or if the Secretary determines that such evidence is not 

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1 verse action, the Secretary shall carry out the adverse ac2 tion following such five-day period. 

3 ‘‘(b) LIMITATION ON OTHER ADVERSE ACTIONS.— 

4 With respect to a prohibited personnel action described in 

5 subsection (c), if the Secretary carries out an adverse ac6 tion against a supervisory employee, the Secretary may 

7 carry out an additional adverse action under this section 

8 based on the same prohibited personnel action if the total 

9 severity of the adverse actions do not exceed the level spec10 ified in subsection (a). 

11 ‘‘(c) PROHIBITED PERSONNEL ACTION DE12 SCRIBED.—A prohibited personnel action described in this 

13 subsection is any of the following actions: 

14 ‘‘(1) Taking or failing to take a personnel ac15 tion in violation of section 2302 of title 5 against an 

16 employee relating to the employee— 

17 ‘‘(A) filing a whistleblower complaint in ac18 cordance with section 742 of this title; 

19 ‘‘(B) filing a whistleblower complaint with 

20 the Inspector General of the Department, the 

21 Special Counsel, or Congress; 

22 ‘‘(C) providing information or participating 

23 as a witness in an investigation of a whistle24 blower complaint in accordance with section 


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1 742 or with the Inspector General of the De2 partment, the Special Counsel, or Congress; 

3 ‘‘(D) participating in an audit or investiga4 tion by the Comptroller General of the United 

5 States; 

6 ‘‘(E) refusing to perform an action that is 

7 unlawful or prohibited by the Department; or 

8 ‘‘(F) engaging in communications that are 

9 related to the duties of the position or are oth10 erwise protected. 

11 ‘‘(2) Preventing or restricting an employee from 

12 making an action described in any of subparagraphs 

13 (A) through (F) of paragraph (1). 

14 ‘‘(3) Conducting a peer review or opening a re15 taliatory investigation relating to an activity of an 

16 employee that is protected by section 2302 of title 

17 5. 

18 ‘‘(4) Requesting a contractor to carry out an 

19 action that is prohibited by section 4705(b) or sec20 tion 4712(a)(1) of title 41, as the case may be. 

21 ‘‘§ 744. Evaluation criteria of supervisors and treat22 ment of bonuses 

23 ‘‘(a) EVALUATION CRITERIA.—(1) In evaluating the 

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1 retary shall include the criteria described in paragraph 

2 (2). 

3 ‘‘(2) The criteria described in this subsection are the 

4 following: 

5 ‘‘(A) Whether the supervisor treats whistle6 blower complaints in accordance with section 742. 

7 ‘‘(B) Whether the appropriate deciding official, 

8 performance review board, or performance review 

9 committee determines that the supervisor was found 

10 to have committed a prohibited personnel action de11 scribed in section 743(b) by an administrative judge, 

12 the Merit Systems Protection Board, the Office of 

13 Special Counsel, an adjudicating body provided 

14 under a union contract, a Federal judge, or, in the 

15 case of a settlement of a whistleblower complaint 

16 (regardless of whether any fault was assigned under 

17 such settlement), the Secretary. 

18 ‘‘(b) BONUSES.—(1) The Secretary may not pay to 

19 a supervisor described in subsection (a)(2)(B) an award 

20 or bonus under this title or title 5, including under chapter 

21 45 or 53 of such title, during the one-year period begin22 ning on the date on which the determination was made 

23 under such subsection. 

24 ‘‘(2) Notwithstanding any other provision of law, the 

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1 scribed in subsection (a)(2)(B) to repay the amount of any 

2 award or bonus paid under this title or title 5, including 

3 under chapter 45 or 53 of such title, if— 

4 ‘‘(A) such award or bonus was paid for per5 formance during a period in which the supervisor 

6 committed a prohibited personnel action as deter7 mined pursuant to such subsection (a)(2)(B); 

8 ‘‘(B) the Secretary determines such repayment 

9 appropriate pursuant to regulations prescribed by 

10 the Secretary to carry out this section; and 

11 ‘‘(C) before such order is made, the supervisor 

12 is afforded— 

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

14 to respond to the order; and 

15 ‘‘(ii) an opportunity to appeal the order to 

16 another department or agency of the Federal 

17 Government, except that any such department 

18 or agency shall issue a final decision with re19 spect to such appeal not later than the date 

20 that is 30 days after the date the department 

21 or agency received such appeal. 

22 ‘‘§ 745. Training regarding whistleblower complaints 

23 ‘‘(a) TRAINING.—The Secretary, in coordination with 

24 the Whistleblower Protection Ombudsman designated 

25 under section 3(d)(1)(C) of the Inspector General Act of 


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1 1978 (5 U.S.C. App.), shall annually provide to each em2 ployee of the Department training regarding whistleblower 

3 complaints, including— 

4 ‘‘(1) an explanation of each method established 

5 by law in which an employee may file a whistle6 blower complaint; 

7 ‘‘(2) an explanation of prohibited personnel ac8 tions described by section 743(c) of this title; 

9 ‘‘(3) with respect to supervisors, how to treat 

10 whistleblower complaints in accordance with section 

11 742 of this title; 

12 ‘‘(4) the right of the employee to petition Con13 gress regarding a whistleblower complaint in accord14 ance with section 7211 of title 5; 

15 ‘‘(5) an explanation that the employee may not 

16 be prosecuted or reprised against for disclosing in17 formation to Congress in instances where such dis18 closure is permitted by law, including under sections 

19 5701, 5705, and 7742 of this title, under section 

20 552a of title 5 (commonly referred to as the Privacy 

21 Act), under chapter 93 of title 18, and pursuant to 

22 regulations promulgated under section 264(c) of the 

23 Health Insurance Portability and Accountability Act 

24 of 1996 (Public Law 104–191); 


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1 ‘‘(6) an explanation of the language that is re2 quired to be included in all nondisclosure policies, 

3 forms, and agreements pursuant to section 

4 115(a)(1) of the Whistleblower Protection Enhance5 ment Act of 2012 (5 U.S.C. 2302 note); and 

6 ‘‘(7) the right of contractors to be protected 

7 from reprisal for the disclosure of certain informa8 tion under section 4705 or 4712 of title 41. 

9 ‘‘(b) CERTIFICATION.—The Secretary shall annually 

10 provide training on merit system protection in a manner 

11 that the Special Counsel certifies as being satisfactory. 

12 ‘‘(c) PUBLICATION.—(1) The Secretary shall publish 

13 on the Internet website of the Department, and display 

14 prominently at each facility of the Department, the rights 

15 of an employee to file a whistleblower complaint, including 

16 the information described in paragraphs (1) through (7) 

17 of subsection (a). 

18 ‘‘(2) The Secretary shall publish on the Internet 

19 website of the Department, the whistleblower complaint 

20 form described in section 742(g)(2). 

21 ‘‘§ 746. Notice to Congress 

22 ‘‘Not later than 30 days after the date on which the 

23 Secretary receives from the Special Counsel information 

24 relating to a whistleblower complaint pursuant to section 

25 1213 of title 5, the Secretary shall notify the Committees 


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1 on Veterans’ Affairs of the House of Representatives and 

2 the Senate, the Committee on Oversight and Government 

3 Reform of the House of Representatives, and the Com4 mittee on Homeland Security and Governmental Affairs 

5 of the Senate of such information, including the deter6 mination made by the Special Counsel.’’. 

7 (b) CONFORMING AND CLERICAL AMENDMENTS.— 

8 (1) CONFORMING AMENDMENT.—Such chapter 

9 is further amended by inserting before section 701 

10 the following: 

11 ‘‘SUBCHAPTER I—GENERAL EMPLOYEE 

12 MATTERS’’. 

13 (2) CLERICAL AMENDMENTS.—The table of sec14 tions at the beginning of such chapter is amended— 

15 (A) by inserting before the item relating to 

16 section 701 the following new item: 

‘‘SUBCHAPTER I—GENERAL EMPLOYEE MATTERS’’; 

17 and 

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

19 items: 

‘‘SUBCHAPTER II—WHISTLEBLOWER COMPLAINTS

‘‘741. Whistleblower complaint defined. 

‘‘742. Treatment of whistleblower complaints. 

‘‘743. Adverse actions against supervisory employees who commit prohibited 

personnel actions relating to whistleblower complaints. 

‘‘744. Evaluation criteria of supervisors and treatment of bonuses. 

‘‘745. Training regarding whistleblower complaints. 

‘‘746. Notice to Congress.’’. 


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1 SEC. 9. APPEALS REFORM. 

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

3 States Code, is amended by adding at the end the fol4 lowing new paragraphs: 

5 ‘‘(34) The term ‘Agency of Original Jurisdic6 tion’ means the activity which entered the original 

7 determination with regard to a claim for benefits 

8 under this title. 

9 ‘‘(35) The term ‘relevant evidence’ means evi10 dence that tends to prove or disprove a matter in 

11 issue.’’. 

12 (b) NOTICE TO CLAIMANTS OF REQUIRED INFORMA13 TION AND EVIDENCE.—Section 5103 of title 38, United 

14 States Code, is amended— 

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

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

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

18 ‘‘or a supplemental claim;’’; and 

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

20 following new paragraph: 

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

22 to be sent for a supplemental claim that is filed 

23 within the timeframe set forth in subsections 

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

25 title.’’. 


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1 (c) RULE WITH RESPECT TO DISALLOWED

2 CLAIMS.—Section 5103A(f) of title 38, United States 

3 Code, is amended to read as follows: 

4 ‘‘(f) RULE WITH RESPECT TO DISALLOWED

5 CLAIMS.—Nothing in this section shall be construed to re6 quire the Secretary to readjudicate a claim that has been 

7 disallowed except when new and relevant evidence is pre8 sented or secured, as described in section 5108 of this 

9 title.’’. 

10 (d) OTHER MATTERS.—Chapter 51 of title 38, 

11 United States Code, is amended by inserting after section 

12 5103A the following new sections: 

13 ‘‘§ 5103B. Applicability of duty to assist 

14 ‘‘(a) TIME FRAME.—The Secretary’s duty to assist 

15 under section 5103A of this title shall apply only to a 

16 claim, or supplemental claim, for a benefit under a law 

17 administered by the Secretary until the time that a claim18 ant is provided notice of the decision of the agency of 

19 original jurisdiction decision with respect to such claim, 

20 or supplemental claim, under section 5104 of this title. 

21 ‘‘(b) NON-APPLICABILITY TO CERTAIN REVIEWS AND

22 APPEALS.—The Secretary’s duty to assist under section 

23 5103A of this title shall not apply to higher-level review 

24 by the agency of original jurisdiction, pursuant to section 


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1 5104B of this title, or to review on appeal by the Board 

2 of Veterans’ Appeals. 

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

4 (1) If, during review of the decision of the agency of origi5 nal jurisdiction under section 5104B of this title, the high6 er-level reviewer identifies an error on the part of the 

7 agency of original jurisdiction to satisfy its duties under 

8 section 5103A of this title, and that error occurred prior 

9 to the decision of the agency of original jurisdiction being 

10 reviewed, the higher-level reviewer shall return the claim 

11 for correction of such error and readjudication unless the 

12 claim can be granted in full. 

13 ‘‘(2) If the Board, during review on appeal of a deci14 sion of the agency of original jurisdiction decision, identi15 fies an error on the part of the agency of original jurisdic16 tion to satisfy its duties under section 5103A of this title, 

17 and that error occurred prior to the decision of the agency 

18 of original jurisdiction on appeal, the Board shall remand 

19 the claim to the agency of original jurisdiction for correc20 tion of such error and readjudication unless the claim can 

21 be granted in full. Remand for correction of such error 

22 may include directing the agency of original jurisdiction 

23 to obtain an advisory medical opinion under section 5109 

24 of this title. 


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1 ‘‘§ 5104A. Binding nature of favorable findings 

2 ‘‘Any finding favorable to the claimant as described 

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

4 subsequent adjudicators within the department, unless 

5 clear and convincing evidence is shown to the contrary to 

6 rebut such favorable finding. 

7 ‘‘§ 5104B. Higher-level review by the agency of origi8 nal jurisdiction 

9 ‘‘(a) IN GENERAL.—The claimant may request a re10 view of the decision of the agency of original jurisdiction 

11 by a higher-level adjudicator within the jurisdiction of the 

12 agency of original jurisdiction. 

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

14 for higher-level review by the agency of original jurisdic15 tion must be in writing in the form prescribed by the Sec16 retary and made within one year of the notice of the deci17 sion of the agency of original jurisdiction. Such request 

18 may specifically indicate whether such review is requested 

19 by a higher-level adjudicator at the same office within the 

20 agency of original jurisdiction or by an adjudicator at a 

21 different office of the agency of original jurisdiction. 

22 ‘‘(c) DECISION.—Notice of a higher-level review deci23 sion under this section shall be provided in writing. 

24 ‘‘(d) EVIDENTIARY RECORD FOR REVIEW.—The evi25 dentiary record before the higher-level reviewer shall be 


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1 limited to the evidence of record in the decision of the 

2 agency of original jurisdiction being reviewed. 

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

4 this section shall be de novo.’’. 

5 (e) NOTICE OF DECISIONS.—Section 5104(b) of title 

6 38, United States Code, is amended to read as follows: 

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

8 sought, the notice required by subsection (a) shall also in9 clude— 

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

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

12 the Secretary; 

13 ‘‘(3) a summary of the applicable laws and reg14 ulations; 

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

16 claimant; 

17 ‘‘(5) identification of elements not satisfied 

18 leading to the denial; 

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

20 evidence used in making the decision; and 

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

22 that must be satisfied to grant service connection or 

23 the next higher level of compensation.’’. 

24 (f) SUPPLEMENTAL CLAIMS.—Section 5108 of title 

25 38, United States Code, is amended to read as follows: 


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1 ‘‘§ 5108. Supplemental claims 

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

3 with respect to a supplemental claim, the Secretary shall 

4 readjudicate the claim taking into consideration any evi5 dence added to the record prior to the former disposition 

6 of the claim.’’. 

7 (g) REMANDS FOR MEDICAL OPINIONS.—Section 

8 5109 of title 38, United States Code, is amended by add9 ing at the end 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 Board’s remand 

17 instructions shall include the questions to be posed to the 

18 independent medical expert providing the advisory medical 

19 opinion.’’. 

20 (h) EFFECTIVE DATES OF AWARDS.—Section 5110 

21 of title 38, United States Code, is amended— 

22 (1) by striking subsection (a) and inserting the 

23 following new subsection (a): 

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 ency and indemnity compensation, or pension, shall be 

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

3 earlier than the date of receipt of application therefor. 

4 ‘‘(2) For purposes of applying the effective date rules 

5 in this section, the date of application shall be considered 

6 the date of the filing of the initial application for a benefit 

7 provided that the claim is continuously pursued by filing 

8 any of the following either alone or in succession: 

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

10 section 5104B of this title within one year of an 

11 agency of original jurisdiction decision. 

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

13 of this title within one year of an agency of original 

14 jurisdiction decision. 

15 ‘‘(C) A notice of disagreement within one year 

16 of an agency of original jurisdiction decision. 

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

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

19 Board of Veterans’ Appeals. 

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

21 supplemental claims received more than one year after an 

22 agency of original jurisdiction decision or a decision by 

23 the Board of Veterans’ Appeals, the effective date shall 

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


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1 be earlier than the date of receipt of the supplemental 

2 claim.’’; and 

3 (2) in subsection (i) by— 

4 (A) striking ‘‘reopened’’ and inserting ‘‘re5 adjudicated’’; 

6 (B) striking ‘‘material’’ and inserting ‘‘rel7 evant’’; and 

8 (C) striking ‘‘reopening’’ and inserting ‘‘re9 adjudication’’. 

10 (i) DEFINITION OF AWARD OR INCREASED RE11 WARD.—Section 5111(d)(1) of title 38, United States 

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

13 inserting ‘‘award or award based on a supplemental 

14 claim;’’. 

15 (j) RECOGNITION OF AGENTS AND ATTORNEYS GEN16 ERALLY.—Section 5904 of title 38, United States Code, 

17 is amended— 

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

19 disagreement is filed’’ and inserting ‘‘claimant is 

20 provided notice of the initial decision of the agency 

21 of original jurisdiction under section 5104 of this 

22 title’’; and 

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

24 disagreement is filed’’ and inserting ‘‘claimant is 

25 provided notice of the initial decision of the agency 


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1 of original jurisdiction under section 5104 of this 

2 title’’. 

3 (k) CORRECTION OF OBVIOUS ERRORS.—Section 

4 7103 of title 38, United States Code, is amended— 

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

6 and inserting ‘‘decided’’; and 

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

8 and inserting ‘‘decided’’. 

9 (l) JURISDICTION OF BOARD.—Section 7104(b) of 

10 title 38, United States Code, is amended by striking ‘‘re11 opened’’ and inserting ‘‘readjudicated’’. 

12 (m) FILING OF APPEAL.—Section 7105 of title 38, 

13 United States Code, is amended— 

14 (1) in subsection (a)— 

15 (A) by striking the first sentence and in16 serting ‘‘Appellate review will be initiated by 

17 the filing of a notice of disagreement in the 

18 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 deci25 sion of the agency of original jurisdiction under section 


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1 5104, 5104B, or 5108 of this title. A notice of disagree2 ment postmarked before the expiration of the one-year pe3 riod will be accepted as timely filed. A question as to time4 liness or adequacy of the notice of disagreement shall be 

5 decided 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 action or decision of the agency of original jurisdiction 

4 shall become final and the claim will not thereafter be re5 adjudicated or allowed, except as may otherwise be pro6 vided by section 5104B or 5108 of this title or regulations 

7 not inconsistent 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) SIMULTANEOUSLY CONTESTED CLAIMS.—Sub17 section (b) of section 7105A of title 38, United States 

18 Code, is amended to read as follows: 

19 ‘‘(b) The substance of the notice of disagreement 

20 shall be communicated to the other party or parties in in21 terest and a period of 30 days shall be allowed for filing 

22 a brief or argument in response thereto. Such notice shall 

23 be forwarded to the last known address of record of the 

24 parties concerned, and such action shall constitute suffi25 cient evidence of notice.’’. 


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1 (o) ADMINISTRATIVE APPEALS.—Strike section 7106 

2 of title 38, United States Code. 

3 (p) DOCKETS AND HEARINGS.—Section 7107 of title 

4 38, United States Code, is 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) A case on either the Board’s non-hearing option 

23 docket or hearing option docket, may, for cause shown, 

24 be advanced on motion for earlier consideration and deter25 mination. Any such motion shall set forth succinctly the 


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1 grounds upon which the motion is based. Such a motion 

2 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)(1) For cases on the Board hearing option docket 

11 in which a hearing is requested in the notice of disagree12 ment, the Board shall notify the appellant whether a 

13 Board hearing will be held— 

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

15 ‘‘(B) by picture and voice transmission at a fa16 cility of the Department where the Secretary has 

17 provided suitable facilities and equipment to conduct 

18 such hearings. 

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

20 Board’s principal location as described in subsection 

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

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

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

24 request. 


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

2 and voice transmission as described in subsection 

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

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

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

6 request.’’; and 

7 (4) by striking subsections (d) and (e) and re8 designating subsection (f) as subsection (d). 

9 (q) INDEPENDENT MEDICAL OPINIONS.—Strike sec10 tion 7109 of title 38, United States Code. 

11 (r) REVISION OF DECISIONS ON GROUNDS OF CLEAR

12 AND UNMISTAKABLE ERROR.—Section 7111(e) of title 

13 38, United States Code, is amended by striking ‘‘merits, 

14 without referral to any adjudicative or hearing official act15 ing on behalf of the Secretary.’’ and inserting ‘‘merits.’’. 

16 (s) EVIDENTIARY RECORD.—Chapter 71 of title 38, 

17 United States Code, is amended by adding the following 

18 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) Except as pro2 vided in paragraph (2), for cases on the hearing option 

3 docket in which a hearing is requested in the notice of 

4 disagreement, the evidentiary record before the Board 

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

6 the agency of original jurisdiction decision on appeal. 

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

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

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

10 Board shall consider in the first instance— 

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

12 his or her representative, if any, at the Board hear13 ing; and 

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

15 his or her representative, if any, within 90 days fol16 lowing the Board hearing. 

17 ‘‘(3)(A) Except as provided in subparagraph (B) of 

18 this paragraph, for cases on the hearing option docket in 

19 which a hearing is not requested in the notice of disagree20 ment, the evidentiary record before the Board shall be lim21 ited to the evidence considered by the agency of original 

22 jurisdiction in the decision on appeal. 

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

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


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

2 the Board shall consider in the first instance— 

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

4 or her representative, if any, with the notice of dis5 agreement; and 

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

7 his or her representative, if any, within 90 days fol8 lowing receipt of the notice of disagreement.’’. 

9 (t) CONFORMING AMENDMENT.—The heading of sec10 tion 7105 is amended by striking ‘‘notice of disagreement 

11 and’’. 

12 (u) CLERICAL AMENDMENTS.— 

13 (1) CHAPTER 51.—The table of sections at the 

14 beginning of chapter 51 of title 38, United States 

15 Code, is amended— 

16 (A) by inserting after the item relating to 

17 section 5103A the following new item: 

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

18 and 

19 (B) by inserting after the item relating to 

20 section 5104 the following new items: 

‘‘5104A. Binding nature of favorable findings. 

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

21 and 


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1 (C) by striking the item relating to section 

2 5108 and inserting the following new item: 

‘‘5108. Supplemental claims.’’. 

3 (2) CHAPTER 71.—The table of sections at the 

4 beginning of chapter 71 of title 38, United States 

5 Code, is amended— 

6 (A) by striking the item relating to section 

7 7105 and inserting the following new item: 

‘‘7105. Filing of appeal.’’; 

8 (B) by striking the item relating to section 

9 7106; 

10 (C) by striking the item relating to section 

11 7109; and 

12 (D) by adding at the end the following new 

13 item: 

‘‘7113. Evidentiary record before the Board.’’. 

14 SEC. 10. LIMITATION ON AWARDS AND BONUSES PAID TO 

15 SENIOR EXECUTIVE EMPLOYEES OF DEPART16 MENT OF VETERANS AFFAIRS. 

17 Section 705 of the Veterans Access, Choice, and Ac18 countability Act of 2014 (Public Law 113–146; 38 U.S.C. 

19 703 note) is amended by striking the period at the end 

20 and inserting the following: ‘‘, except that during each of 

21 fiscal years 2017 through 2021, no award or bonus may 


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1 be paid to any employee of the Department of Veterans 

2 Affairs who is a member of the Senior Executive Service.’’. 

Æ 


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