I

103D CONGRESS

1ST SESSION H. R. 2574

To amend title 38, United States Code, to revise and improve adjudication

and appeals procedures relating to claims for benefits under the jurisdiction of the Secretary of Veterans Affairs.

IN THE HOUSE OF REPRESENTATIVES

JUNE 30, 1993

Mr. SLATTERY (for himself and Mr. BILIRAKIS) introduced the following bill;

which was referred to the Committee on Veterans’ Affairs

A BILL

To amend title 38, United States Code, to revise and improve

adjudication and appeals procedures relating to claims

for benefits under the jurisdiction of the Secretary 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; REFERENCES TO TITLE 38, UNIT4 ED STATES CODE.

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

6 ‘‘Veterans’ Adjudication and Appeals Improvements Act

7 of 1993’’.
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1 (b) REFERENCES TO TITLE 38, UNITED STATES

2 CODE.—Except as otherwise expressly provided, whenever

3 in this Act an amendment or repeal is expressed in terms

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

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

7 TITLE I—ADJUDICATION

8 IMPROVEMENTS

9 SEC. 101. ELIMINATION OF REQUIREMENT FOR ANNUAL IN10 COME QUESTIONNAIRES.

11 Section 1506 is amended—

12 (1) in paragraph (2), by striking out ‘‘shall’’

13 and inserting in lieu thereof ‘‘may’’; and

14 (2) in paragraph (3), by striking out ‘‘file a re15 vised report’’ and inserting in lieu thereof ‘‘notify

16 the Secretary’’.

17 SEC. 102. TIME PERIOD FOR RESPONDING TO NOTICE OF

18 INCOMPLETE APPLICATION.

19 Section 5103(a) is amended by striking out ‘‘one

20 year’’ and inserting in lieu thereof ‘‘120 days’’.

21 SEC. 103. RESTATEMENT OF BURDEN OF PROOF, DUTY TO

22 ASSIST, AND BENEFIT OF DOUBT.

23 The text of section 5107 is amended to read as fol24 lows:
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1 ‘‘(a) Except as otherwise provided in this title, a per2 son who submits a claim for benefits under a law adminis3 tered by the Secretary shall bear the burden of establish4 ing such claim by submitting evidence sufficient to justify

5 a belief by a fair and impartial individual that the claim

6 is well grounded. A claim shall be considered to be well

7 grounded if the evidence presented is sufficient to evoke

8 a reasonable probability that the claim is valid. Mere alle9 gations, unsupported by evidence, shall not form the basis

10 for a conclusion that the claim is well grounded.

11 ‘‘(b) The Secretary shall provide reasonable assist12 ance to a claimant in developing the facts pertinent to the

13 claim. Except in the case of evidence or information within

14 the control of the Department or other Federal depart15 ment or agency, the duty to provide such assistance shall

16 be considered to be met upon a showing of a good faith

17 effort by the Secretary to obtain such evidence. Nothing

18 in this subsection shall be construed as shifting from the

19 claimant to the Secretary the burden specified in sub20 section (a).

21 ‘‘(c) When, after consideration of all evidence and

22 material of record in a case before the Department with

23 respect to benefits under law administered by the Sec24 retary, there is an approximate balance of positive and

25 negative evidence regarding the merits of an issue material
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1 to the determination of the matter, the benefit of doubt

2 in resolving each such issue shall be given to the claim3 ant.’’.

4 SEC. 104. CLARIFICATION OF REVIEW ON REOPENED

5 CLAIMS.

6 Section 5108 is amended by adding at the end the

7 following: ‘‘Such review shall be limited to the issue to

8 which the new and material evidence is related.’’.

9 SEC. 105. LIMIT ON RETROACTIVE AWARDS.

10 Section 5110 is amended by adding at the end the

11 following:

12 ‘‘(o) The effective date of an award or an increased

13 award based on a finding of clear and unmistakable error

14 in fact or law in a prior decision shall be in accordance

15 with the facts found, but shall not be retroactive for more

16 than ten years before receipt of the allegation of error.’’.

17 SEC. 106. PLAN FOR REORGANIZATION OF ADJUDICATION

18 DIVISIONS IN REGIONAL OFFICES.

19 Not later than 180 days after the date of the enact20 ment of this Act, the Secretary of Veterans Affairs shall

21 submit to the Committees on Veterans’ Affairs of the Sen22 ate and House of Representatives a plan to provide for

23 the reorganization of adjudication divisions located within

24 the regional offices of the Veterans Benefits Administra25 tion to a number of such divisions that would result in
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1 greater efficiency in the processing of claims filed by veter2 ans, their survivors, or other eligible persons for benefits

3 administered by the Secretary.

4 SEC. 107. TRANSFER OF MILITARY MEDICAL RECORDS

5 FROM DEPARTMENT OF DEFENSE.

6 The Secretary of Veterans Affairs shall, not later

7 than 90 days after the date of the enactment of this Act,

8 seek to enter into an agreement with the Secretary of De9 fense to implement a plan to provide for the immediate

10 transfer to the Department of Veterans Affairs, upon the

11 separation of a member of the Armed Forces from active

12 duty, of the service medical records of that member.

13 TITLE II—BOARD OF VETERANS’

14 APPEALS IMPROVEMENTS–

15 SEC. 201. COMPOSITION OF BOARD OF VETERANS’ AP16 PEALS.

17 (a) REPEAL OF LIMITATION ON SIZE OF BOARD.—

18 Section 7101(a) is amended by striking out ‘‘(not more

19 than 65)’’.

20 (b) ETHICAL AND LEGAL LIMITATIONS ON CHAIR21 MAN.—Section 7101(b)(1) is amended by inserting after

22 the first sentence the following: ‘‘The Chairman shall be

23 subject to the same ethical and legal limitations and re24 strictions concerning involvement in partisan political ac-
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1 tivities as apply to judges of the United States Court of

2 Veterans Appeals.’’.

3 (c) TEMPORARY MEMBERS OF THE BOARD.—Section

4 7101(c)(1) is amended to read as follows:

5 ‘‘(1) The number of temporary members of the Board

6 may not exceed 10 percent of the total number of Board

7 members at any time.’’.

8 (d) REPEAL OF REPORT REQUIREMENT.—Paragraph

9 (3) of section 7101(c) is repealed.

10 SEC. 202. ASSIGNMENT OF MATTERS BEFORE THE BOARD.

11 Section 7102 is redesignated as section 7103 and is

12 amended to read as follows:

13 ‘‘§ 7103. Assignment of matters before the Board

14 ‘‘(a) Subject to subsection (b), the Chairman may de15 termine any matter before the Board, rule on any motion

16 in connection therewith, or may assign any such matter

17 or motion to any other Board member or a panel of mem18 bers for determination. Any such assignment by the Chair19 man shall not be reviewed by any other official or by any

20 court, whether by an action in the nature of mandamus

21 or otherwise.

22 ‘‘(b) The authority granted under subsection (a) shall

23 expire on September 30, 1995.’’.
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1 SEC. 203. DETERMINATIONS BY THE BOARD.

2 Section 7103 is redesignated as section 7104 and the

3 text thereof is amended to read as follows:

4 ‘‘(a) When the Chairman retains a matter or submits

5 it to another Board member or panel of members for de6 termination in accordance with section 7102 of this title,

7 or to a panel of Board members in accordance with sub8 section (e), the Board member or members shall do the

9 following:

10 ‘‘(1) Issue an order dismissing any appeal, in

11 whole or in part, which fails to allege specific error

12 of fact or law in the determination being appealed

13 or in which the determination being appealed has be14 come moot. Each order of dismissal shall include a

15 written statement of the Board’s findings and con16 clusions, and the reasons and bases for those find17 ings and conclusions, in support of the dismissal.

18 ‘‘(2) Issue an order remanding the case, in

19 whole or in part, to the agency of original jurisdic20 tion for such additional development as the member

21 or panel of members may consider necessary for

22 proper disposition of the case.

23 ‘‘(3) Render a written decision with respect to

24 any issues not dismissed or remanded, which shall

25 constitute the Board’s final disposition of the issues

26 so decided. Such decision shall be based on the en-
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1 tire record in the proceeding, upon consideration of

2 all evidence and material of record, and upon appli3 cable provisions of law and regulation.

4 ‘‘(b) Each decision of a Board member or of a panel

5 of members shall include—

6 ‘‘(1) a written statement of the Board’s find7 ings and conclusions, and the reasons and bases for

8 those findings and conclusions, on all material issues

9 of fact and law presented on the record; and

10 ‘‘(2) an order granting appropriate relief or de11 nying relief.

12 ‘‘(c)(1) Decisions by a panel of Board members under

13 this section shall be based on a majority vote of the mem14 bers of the panel.

15 ‘‘(2) The decision of a Board member or of a panel

16 of members is final unless the Chairman grants an admin17 istrative allowance as authorized under subsection (d) or

18 orders reconsideration of the case pursuant to subsection

19 (e).

20 ‘‘(d) Except in the case of a claim which has been

21 the subject of reconsideration pursuant to subsection (e),

22 if a Board member other than the Chairman is of the opin23 ion that an otherwise final denial of a claim should be

24 revised or amended to allow the claim in whole or in part

25 based on a difference of opinion as to how the evidence
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1 should be evaluated rather than on any error in the prior

2 decision, the Board member may recommend allowance of

3 the claim to the Chairman. If the Chairman agrees with

4 the Board member, the Chairman shall approve the award

5 of any benefit or increase therein, on the basis of such

6 difference of opinion.

7 ‘‘(e)(1) A claimant may seek reconsideration of a

8 final decision of the Board by filing a motion for reconsid9 eration with the Board within 120 days after the date on

10 which notice of the Board’s decision is mailed pursuant

11 to section 7104(e) of this title.

12 ‘‘(2) The Chairman or Vice Chairman shall review

13 each motion for reconsideration and may order such recon14 sideration upon a showing of good cause. The decision of

15 the Chairman or Vice Chairman to order reconsideration

16 or to deny such reconsideration shall not be reviewed by

17 any other official or by any court by an action in the na18 ture of mandamus or otherwise. If a motion for reconsid19 eration is granted, there shall be no further review by the

20 Board of the matter except as provided in this subsection.

21 ‘‘(3) If the Chairman or Vice Chairman orders recon22 sideration of an appeal, the matter shall be referred to

23 a panel of not less than three Board members, not includ24 ing the Board member who rendered the initial decision,
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1 which shall render its decision after reviewing the entire

2 record before the Board.

3 ‘‘(4) The standard of review upon reconsideration

4 shall be whether the decision under consideration involved

5 an obvious error in fact or law affecting the result.

6 ‘‘(f) After reaching a determination under any of the

7 provisions of this section, the Board shall promptly mail

8 a copy of its written decision to the claimant and the

9 claimant’s authorized representative (if any) at the last

10 known address of the claimant and the last known address

11 of such representative (if any).

12 ‘‘(g) The Board shall be bound in its decisions by reg13 ulations of the Department, and precedent opinions of the

14 chief legal officer of the Department.

15 ‘‘(h) A claim disallowed by the Board may not there16 after be reopened except as provided in section 5108 of

17 this title.’’.

18 SEC. 204. JURISDICTION OF THE BOARD.

19 Section 7104 is transferred so as to appear after sec20 tion 7101, redesignated as section 7102, and amended to

21 read as follows:

22 ‘‘§ 7102. Jurisdiction of the Board

23 ‘‘All questions in a matter which under section 511(a)

24 of this title is subject to decision by the Secretary shall
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1 be subject to one review on appeal to the Secretary. Final

2 decisions on such appeals shall be made by the Board.’’.

3 SEC. 205. FILING OF NOTICE OF DISAGREEMENT AND AP4 PEAL.

5 (a) PERIOD FOR FILING NOTICE OF DISAGREE6 MENT.—Section 7105(b)(1) is amended—

7 (1) by striking out ‘‘one year’’ in the first sen8 tence and inserting in lieu thereof ‘‘120 days’’; and

9 (2) by striking out ‘‘one-year’’ in the second

10 sentence and inserting in lieu thereof ‘‘120-day’’.

11 (b) FINALITY OF ACTION OR DETERMINATION.—Sec12 tion 7105(d)(3) is amended by adding after the third sen13 tence the following: ‘‘If no formal appeal is received within

14 this time period, the action or determination shall become

15 final and the claim may not thereafter be reopened or al16 lowed, except as may otherwise be provided by regulations

17 not inconsistent with this title.’’.

18 (c) REPEAL OF GROUNDS FOR DISMISSAL.—Section

19 7105(d) is amended by striking out paragraph (5).

20 SEC. 206. PERIOD FOR ADMINISTRATIVE APPEAL.

21 Section 7106 is amended by striking out ‘‘one-year’’

22 and inserting in lieu thereof ‘‘120-day’’.

23 SEC. 207. HEARINGS.

24 Section 7110 is amended to read as follows:
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1 ‘‘§ 7110. Hearings

2 ‘‘(a) The Board shall decide an appeal only after af3 fording a claimant an opportunity for a hearing.

4 ‘‘(b) A hearing docket shall be maintained and formal

5 recorded hearings shall be held by such member or mem6 bers of the Board as the Chairman may designate. Such

7 Board member or members conducting such hearing shall

8 participate in the final determination in the claim.

9 ‘‘(c) A claimant may request a personal hearing be10 fore the Board at either its principal location or at a re11 gional office of the Department. Any hearing held at a

12 regional office of the Department shall be scheduled for

13 hearing in the order in which the requests for hearings

14 in that area are received by the Department. Other than

15 a hearing authorized under subsection (d), the Chairman

16 may not authorize more than 1,000 hearings by Board

17 members at regional offices in any fiscal year.

18 ‘‘(d) At the request of the Chairman, the Secretary

19 may provide suitable facilities and equipment to the Board

20 or other components of the Department to enable a claim21 ant located at a regional office to participate, through pic22 ture or voice transmission (or both) by electronic or other

23 means, in a hearing with a Board member or members

24 sitting at the Board’s principal location. When such facili25 ties and equipment are available, the Chairman may af26 ford a claimant an opportunity to participate in a hearing
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1 before the Board through the use of such facilities and

2 equipment in lieu of a personal appearance before the

3 Board member or members. Any such hearing shall be

4 conducted in the same manner as, and be considered the

5 equivalent of, a personal hearing.’’.

6 SEC. 208. CLERICAL AMENDMENT.

7 The table of sections at the beginning of chapter 71

8 is amended—

9 (1) by striking out the items relating to sections

10 7102, 7103, and 7104 and inserting in lieu thereof

11 the following:

‘‘7102. Jurisdiction of the Board.

‘‘7103. Assignment of matters before the Board.

‘‘7104. Filing of notice of disagreement and appeal.’’; and

12 (2) by striking out the item relating to section

13 7110 and inserting in lieu thereof the following:

‘‘7110. Hearings.’’.

14 SEC. 209. EFFECTIVE DATE.

15 The amendments made by this title shall take effect

16 60 days after the date of the enactment of this Act.

17 TITLE III—COURT OF VETERANS

18 APPEALS IMPROVEMENTS

19 SEC. 301. RECORD BEFORE COURT.

20 Section 7252(b) is amended by inserting ‘‘entire’’

21 after ‘‘shall be on the’’.
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1 SEC. 302. SCOPE OF REVIEW.

2 Section 7261(c) is amended by striking out the period

3 at the end and inserting in lieu thereof the following: ‘‘,

4 nor shall the Court consider an issue not presented on ap5 peal to the Board of Veterans’ Appeals.’’.

6 SEC. 303. EFFECTIVE DATE.

7 The amendments made by this title shall apply with

8 respect to cases for which an appeal is filed with the Unit9 ed States Court of Veterans Appeals after the end of the

10 60-day period beginning on the date of the enactment of

11 this Act.

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