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 jurisdic-
tion 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.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES TO TITLE 38, UNIT-
ED STATES CODE.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Veterans’ Adjudication and Appeals Improvements Act
of 1993’’.
(b) REFERENCES
TO TITLE 38, UNITED STATES
CODE.—Except as otherwise expressly provided, whenever
in this Act an amendment or repeal is expressed in terms
of an amendment to, or repeal of, a section or other provi-
sion, the reference shall be considered to be made to a
section or other provision of title 38, United States Code.
TITLE I—ADJUDICATION
IMPROVEMENTS
SEC. 101. ELIMINATION OF REQUIREMENT FOR ANNUAL IN-
COME QUESTIONNAIRES.
Section 1506 is amended—
(1) in paragraph (2), by striking out ‘‘shall’’
and inserting in lieu thereof ‘‘may’’; and
(2) in paragraph (3), by striking out ‘‘file a re-
vised report’’ and inserting in lieu thereof ‘‘notify
the Secretary’’.
SEC. 102. TIME PERIOD FOR RESPONDING TO NOTICE OF
INCOMPLETE APPLICATION.
Section 5103(a) is amended by striking out ‘‘one
year’’ and inserting in lieu thereof ‘‘120 days’’.
SEC. 103. RESTATEMENT OF BURDEN OF PROOF, DUTY TO
ASSIST, AND BENEFIT OF DOUBT.
The text of section 5107 is amended to read as fol-
lows:
‘‘(a) Except as otherwise provided in this title, a per-
son who submits a claim for benefits under a law adminis-
tered by the Secretary shall bear the burden of establish-
ing such claim by submitting evidence sufficient to justify
a belief by a fair and impartial individual that the claim
is well grounded. A claim shall be considered to be well
grounded if the evidence presented is sufficient to evoke
a reasonable probability that the claim is valid. Mere alle-
gations, unsupported by evidence, shall not form the basis
for a conclusion that the claim is well grounded.
‘‘(b) The Secretary shall provide reasonable assist-
ance to a claimant in developing the facts pertinent to the
claim. Except in the case of evidence or information within
the control of the Department or other Federal depart-
ment or agency, the duty to provide such assistance shall
be considered to be met upon a showing of a good faith
effort by the Secretary to obtain such evidence. Nothing
in this subsection shall be construed as shifting from the
claimant to the Secretary the burden specified in sub-
section (a).
‘‘(c) When, after consideration of all evidence and
material of record in a case before the Department with
respect to benefits under law administered by the Sec-
retary, there is an approximate balance of positive and
negative evidence regarding the merits of an issue material
to the determination of the matter, the benefit of doubt
in resolving each such issue shall be given to the claim-
ant.’’.
SEC. 104. CLARIFICATION OF REVIEW ON REOPENED
CLAIMS.
Section 5108 is amended by adding at the end the
following: ‘‘Such review shall be limited to the issue to
which the new and material evidence is related.’’.
SEC. 105. LIMIT ON RETROACTIVE AWARDS.
Section 5110 is amended by adding at the end the
following:
‘‘(o) The effective date of an award or an increased
award based on a finding of clear and unmistakable error
in fact or law in a prior decision shall be in accordance
with the facts found, but shall not be retroactive for more
than ten years before receipt of the allegation of error.’’.
SEC. 106. PLAN FOR REORGANIZATION OF ADJUDICATION
DIVISIONS IN REGIONAL OFFICES.
Not later than 180 days after the date of the enact-
ment of this Act, the Secretary of Veterans Affairs shall
submit to the Committees on Veterans’ Affairs of the Sen-
ate and House of Representatives a plan to provide for
the reorganization of adjudication divisions located within
the regional offices of the Veterans Benefits Administra-
tion to a number of such divisions that would result in
greater efficiency in the processing of claims filed by veter-
ans, their survivors, or other eligible persons for benefits
administered by the Secretary.
SEC. 107. TRANSFER OF MILITARY MEDICAL RECORDS
FROM DEPARTMENT OF DEFENSE.
The Secretary of Veterans Affairs shall, not later
than 90 days after the date of the enactment of this Act,
seek to enter into an agreement with the Secretary of De-
fense to implement a plan to provide for the immediate
transfer to the Department of Veterans Affairs, upon the
separation of a member of the Armed Forces from active
duty, of the service medical records of that member.
TITLE II—BOARD OF VETERANS’
APPEALS IMPROVEMENTS–
SEC. 201. COMPOSITION OF BOARD OF VETERANS’ AP-
PEALS.
(a) REPEAL OF LIMITATION ON SIZE OF BOARD.—
Section 7101(a) is amended by striking out ‘‘(not more
than 65)’’.
(b) ETHICAL AND LEGAL LIMITATIONS ON CHAIR-
MAN.—Section 7101(b)(1) is amended by inserting after
the first sentence the following: ‘‘The Chairman shall be
subject to the same ethical and legal limitations and re-
strictions concerning involvement in partisan political ac-
tivities as apply to judges of the United States Court of
Veterans Appeals.’’.
(c) TEMPORARY MEMBERS OF THE BOARD.—Section
7101(c)(1) is amended to read as follows:
‘‘(1) The number of temporary members of the Board
may not exceed 10 percent of the total number of Board
members at any time.’’.
(d) REPEAL OF REPORT REQUIREMENT.—Paragraph
(3) of section 7101(c) is repealed.
SEC. 202. ASSIGNMENT OF MATTERS BEFORE THE BOARD.
Section 7102 is redesignated as section 7103 and is
amended to read as follows:
‘‘§ 7103. Assignment of matters before the Board
‘‘(a) Subject to subsection (b), the Chairman may de-
termine any matter before the Board, rule on any motion
in connection therewith, or may assign any such matter
or motion to any other Board member or a panel of mem-
bers for determination. Any such assignment by the Chair-
man shall not be reviewed by any other official or by any
court, whether by an action in the nature of mandamus
or otherwise.
‘‘(b) The authority granted under subsection (a) shall
expire on September 30, 1995.’’.
SEC. 203. DETERMINATIONS BY THE BOARD.
Section 7103 is redesignated as section 7104 and the
text thereof is amended to read as follows:
‘‘(a) When the Chairman retains a matter or submits
it to another Board member or panel of members for de-
termination in accordance with section 7102 of this title,
or to a panel of Board members in accordance with sub-
section (e), the Board member or members shall do the
following:
‘‘(1) Issue an order dismissing any appeal, in
whole or in part, which fails to allege specific error
of fact or law in the determination being appealed
or in which the determination being appealed has be-
come moot. Each order of dismissal shall include a
written statement of the Board’s findings and con-
clusions, and the reasons and bases for those find-
ings and conclusions, in support of the dismissal.
‘‘(2) Issue an order remanding the case, in
whole or in part, to the agency of original jurisdic-
tion for such additional development as the member
or panel of members may consider necessary for
proper disposition of the case.
‘‘(3) Render a written decision with respect to
any issues not dismissed or remanded, which shall
constitute the Board’s final disposition of the issues
so decided. Such decision shall be based on the en-
tire record in the proceeding, upon consideration of
all evidence and material of record, and upon appli-
cable provisions of law and regulation.
‘‘(b) Each decision of a Board member or of a panel
of members shall include—
‘‘(1) a written statement of the Board’s find-
ings and conclusions, and the reasons and bases for
those findings and conclusions, on all material issues
of fact and law presented on the record; and
‘‘(2) an order granting appropriate relief or de-
nying relief.
‘‘(c)(1) Decisions by a panel of Board members under
this section shall be based on a majority vote of the mem-
bers of the panel.
‘‘(2) The decision of a Board member or of a panel
of members is final unless the Chairman grants an admin-
istrative allowance as authorized under subsection (d) or
orders reconsideration of the case pursuant to subsection
(e).
‘‘(d) Except in the case of a claim which has been
the subject of reconsideration pursuant to subsection (e),
if a Board member other than the Chairman is of the opin-
ion that an otherwise final denial of a claim should be
revised or amended to allow the claim in whole or in part
based on a difference of opinion as to how the evidence
should be evaluated rather than on any error in the prior
decision, the Board member may recommend allowance of
the claim to the Chairman. If the Chairman agrees with
the Board member, the Chairman shall approve the award
of any benefit or increase therein, on the basis of such
difference of opinion.
‘‘(e)(1) A claimant may seek reconsideration of a
final decision of the Board by filing a motion for reconsid-
eration with the Board within 120 days after the date on
which notice of the Board’s decision is mailed pursuant
to section 7104(e) of this title.
‘‘(2) The Chairman or Vice Chairman shall review
each motion for reconsideration and may order such recon-
sideration upon a showing of good cause. The decision of
the Chairman or Vice Chairman to order reconsideration
or to deny such reconsideration shall not be reviewed by
any other official or by any court by an action in the na-
ture of mandamus or otherwise. If a motion for reconsid-
eration is granted, there shall be no further review by the
Board of the matter except as provided in this subsection.
‘‘(3) If the Chairman or Vice Chairman orders recon-
sideration of an appeal, the matter shall be referred to
a panel of not less than three Board members, not includ-
ing the Board member who rendered the initial decision,
which shall render its decision after reviewing the entire
record before the Board.
‘‘(4) The standard of review upon reconsideration
shall be whether the decision under consideration involved
an obvious error in fact or law affecting the result.
‘‘(f) After reaching a determination under any of the
provisions of this section, the Board shall promptly mail
a copy of its written decision to the claimant and the
claimant’s authorized representative (if any) at the last
known address of the claimant and the last known address
of such representative (if any).
‘‘(g) The Board shall be bound in its decisions by reg-
ulations of the Department, and precedent opinions of the
chief legal officer of the Department.
‘‘(h) A claim disallowed by the Board may not there-
after be reopened except as provided in section 5108 of
this title.’’.
SEC. 204. JURISDICTION OF THE BOARD.
Section 7104 is transferred so as to appear after sec-
tion 7101, redesignated as section 7102, and amended to
read as follows:
‘‘§ 7102. Jurisdiction of the Board
‘‘All questions in a matter which under section 511(a)
of this title is subject to decision by the Secretary shall
be subject to one review on appeal to the Secretary. Final
decisions on such appeals shall be made by the Board.’’.
SEC. 205. FILING OF NOTICE OF DISAGREEMENT AND AP-
PEAL.
(a) PERIOD
FOR FILING NOTICE
OF DISAGREE-
MENT.—Section 7105(b)(1) is amended—
(1) by striking out ‘‘one year’’ in the first sen-
tence and inserting in lieu thereof ‘‘120 days’’; and
(2) by striking out ‘‘one-year’’ in the second
sentence and inserting in lieu thereof ‘‘120-day’’.
(b) FINALITY OF ACTION OR DETERMINATION.—Sec-
tion 7105(d)(3) is amended by adding after the third sen-
tence the following: ‘‘If no formal appeal is received within
this time period, the action or determination shall become
final and the claim may not thereafter be reopened or al-
lowed, except as may otherwise be provided by regulations
not inconsistent with this title.’’.
(c) REPEAL OF GROUNDS FOR DISMISSAL.—Section
7105(d) is amended by striking out paragraph (5).
SEC. 206. PERIOD FOR ADMINISTRATIVE APPEAL.
Section 7106 is amended by striking out ‘‘one-year’’
and inserting in lieu thereof ‘‘120-day’’.
SEC. 207. HEARINGS.
Section 7110 is amended to read as follows:
‘‘§ 7110. Hearings
‘‘(a) The Board shall decide an appeal only after af-
fording a claimant an opportunity for a hearing.
‘‘(b) A hearing docket shall be maintained and formal
recorded hearings shall be held by such member or mem-
bers of the Board as the Chairman may designate. Such
Board member or members conducting such hearing shall
participate in the final determination in the claim.
‘‘(c) A claimant may request a personal hearing be-
fore the Board at either its principal location or at a re-
gional office of the Department. Any hearing held at a
regional office of the Department shall be scheduled for
hearing in the order in which the requests for hearings
in that area are received by the Department. Other than
a hearing authorized under subsection (d), the Chairman
may not authorize more than 1,000 hearings by Board
members at regional offices in any fiscal year.
‘‘(d) At the request of the Chairman, the Secretary
may provide suitable facilities and equipment to the Board
or other components of the Department to enable a claim-
ant located at a regional office to participate, through pic-
ture or voice transmission (or both) by electronic or other
means, in a hearing with a Board member or members
sitting at the Board’s principal location. When such facili-
ties and equipment are available, the Chairman may af-
ford a claimant an opportunity to participate in a hearing
before the Board through the use of such facilities and
equipment in lieu of a personal appearance before the
Board member or members. Any such hearing shall be
conducted in the same manner as, and be considered the
equivalent of, a personal hearing.’’.
SEC. 208. CLERICAL AMENDMENT.
The table of sections at the beginning of chapter 71
is amended—
(1) by striking out the items relating to sections
7102, 7103, and 7104 and inserting in lieu thereof
the following:
‘‘7102. Jurisdiction of the Board.
‘‘7103. Assignment of matters before the Board.
‘‘7104. Filing of notice of disagreement and appeal.’’; and
(2) by striking out the item relating to section
7110 and inserting in lieu thereof the following:
‘‘7110. Hearings.’’.
SEC. 209. EFFECTIVE DATE.
The amendments made by this title shall take effect
60 days after the date of the enactment of this Act.
TITLE III—COURT OF VETERANS
APPEALS IMPROVEMENTS
SEC. 301. RECORD BEFORE COURT.
Section 7252(b) is amended by inserting ‘‘entire’’
after ‘‘shall be on the’’.
SEC. 302. SCOPE OF REVIEW.
Section 7261(c) is amended by striking out the period
at the end and inserting in lieu thereof the following: ‘‘,
nor shall the Court consider an issue not presented on ap-
peal to the Board of Veterans’ Appeals.’’.
SEC. 303. EFFECTIVE DATE.
The amendments made by this title shall apply with
respect to cases for which an appeal is filed with the Unit-
ed States Court of Veterans Appeals after the end of the
60-day period beginning on the date of the enactment of
this Act.
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