II 114th CONGRESS 2d Session S. 3328 IN THE SENATE OF THE UNITED STATES September 14, 2016 Mr. Blumenthal (for himself, Mr. Tester , Mr. King , Mr. Udall , Ms. Baldwin , Mr. Casey , Ms. Hirono , Mr. Manchin , Mr. Leahy , Mrs. Murray , Mr. Brown , and Mr. Sanders ) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs A BILL To amend title 38, United States Code, to reform the rights and processes relating to appeals of decisions regarding claims for benefits under the laws administered by the Secretary of Veterans Affairs, and for other purposes.

1. Short title This Act may be cited as the Department of Veterans Affairs Appeals Modernization Act of 2016 . 2. Reform of rights and processes relating to appeals of decisions regarding claims for benefits under laws administered by Secretary of Veterans Affairs (a) Definitions Section 101 of title 38, United States Code, is amended by adding at the end the following new paragraphs: (34) The term agency of original jurisdiction means the activity which entered the original determination with regard to a claim for benefits under laws administered by the Secretary. (35) The term relevant evidence means evidence that tends to prove or disprove a matter in issue. . (b) Notice regarding claims Section 5103(a) of such title is amended— (1) in paragraph (1), in the first sentence, by striking The and inserting Except as provided in paragraph (3), the ; (2) in paragraph (2)(B)(i) by striking , a claim for reopening a prior decision on a claim, or a claim for an increase in benefits; and inserting or a supplemental claim; ; and (3) by adding at the end the following new paragraph: (3) The requirement to provide notice under paragraph (1) shall not apply with respect to a supplemental claim that is filed within the timeframe set forth in subparagraphs (B) and (D) of section 5110(a)(2) of this title. . (c) Modification of rule regarding disallowed claims Section 5103A(f) of such title is amended— (1) by striking reopen and inserting readjudicate ; and (2) by striking material and inserting relevant . (d) Modification of duty To assist claimants Section 5103A of such title is amended— (1) by redesignating subsections (e) through (g) as subsections (g) through (i), respectively; and (2) by inserting after subsection (d) the following new subsections: (e) Applicability of duty To assist (1) The Secretary’s duty to assist under this section shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the agency of original jurisdiction’s decision with respect to such claim, or supplemental claim, under section 5104 of this title. (2) The Secretary’s duty to assist under this section shall not apply to higher-level review by the agency of original jurisdiction, pursuant to section 5104B of this title, or to review on appeal by the Board of Veterans’ Appeals. (f) Correction of duty To assist errors (1) If, during review of the agency of original jurisdiction decision under section 5104B of this title, the higher-level reviewer identifies an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision being reviewed, unless the claim can be granted in full, the higher-level reviewer shall return the claim for correction of such error and readjudication. (2) (A) If the Board of Veterans’ Appeals, during review on appeal of an agency of original jurisdiction decision, identifies an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision on appeal, unless the claim can be granted in full, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication. (B) Remand for correction of such error may include directing the agency of original jurisdiction to obtain an advisory medical opinion under section 5109 of this title. . (e) Decisions and notices of decisions Subsection (b) of section 5104 of such title is amended to read as follows: (b) In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include all of the following: (1) Identification of the issues adjudicated. (2) A summary of the evidence considered by the Secretary. (3) A summary of the applicable laws and regulations. (4) Identification of findings favorable to the claimant. (5) Identification of elements not satisfied leading to the denial. (6) An explanation of how to obtain or access evidence used in making the decision. (7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. . (f) Binding nature of favorable findings (1) In general Chapter 51 of such title is amended inserting after section 5104 the following new section: 5104A. Binding nature of favorable findings Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding. . (2) Clerical amendment The table of sections at the beginning of chapter 51 of such title is amended by inserting after the item relating to section 5104 the following new item: 5104A. Binding nature of favorable findings. . (g) Higher-Level review by agency of original jurisdiction (1) In general Chapter 51 of such title, as amended by subsection (f), is further amended by inserting after section 5104A, as added by such subsection, the following new section: 5104B. Higher-level review by the agency of original jurisdiction (a) In general A claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction. (b) Time and manner of request (1) A request for higher-level review by the agency of original jurisdiction shall be— (A) in writing in such form as the Secretary may prescribe; and (B) made within one year of the notice of the agency of original jurisdiction’s decision. (2) Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction. (c) Decision Notice of a higher-level review decision under this section shall be provided in writing. (d) Evidentiary record for review The evidentiary record before the higher-level reviewer shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed. (e) De novo review A review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction shall be de novo. . (2) Clerical amendment The table of sections at the beginning of chapter 51 of such title, as amended by subsection (f), is further amended by inserting after the item relating to section 5104A, as added by such subsection, the following new item: 5104B. Higher-level review by the agency of original jurisdiction. . (h) Options following decision by agency of original jurisdiction (1) In general Chapter 51 of such title, as amended by subsection (g), is further amended by inserting after section 5104B, as added by such subsection, the following new section: 5104C. Options following decision by agency of original jurisdiction (a) Within one year of decision (1) Subject to paragraph (2), in any case in which the Secretary denies a claim, the claimant may take any of the following actions on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision with respect to that claim: (A) File a request for higher-level review under section 5104B of this title. (B) File a supplemental claim under section 5108 of this title. (C) File a notice of disagreement under section 7105 of this title. (2) (A) Once a claimant takes an action set forth in paragraph (1), the claimant may not take another action set forth in that paragraph with respect to such claim until— (i) the higher-level review, supplemental claim, or appeal in connection with the notice of disagreement is adjudicated; or (ii) the request for higher-level review, supplemental claim, or notice of disagreement is withdrawn. (B) Nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph (1) in succession with respect to a claim. (C) Nothing in this subsection shall prohibit a claimant from taking different actions set forth in paragraph (1) with respect to different claims. (b) More than one year after decision In any case in which the Secretary denies a claim and more than one year has passed since the date on which the agency of original jurisdiction issues a decision with respect to that claim, the claimant may file a supplemental claim under section 5108 of this title. . (2) Clerical amendment The table of sections at the beginning of chapter 51 of such title, as amended by subsection (g), is further amended by inserting after the item relating to section 5104B, as added by such subsection, the following new item: 5104C. Options following decision by agency of original jurisdiction. . (i) Supplemental claims (1) In general Section 5108 of such title is amended to read as follows: 5108. Supplemental claims If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration any evidence added to the record prior to the former disposition of the claim. . (2) Clerical amendment The table of sections at the beginning of chapter 51 of such title is amended by striking the item relating to section 5108 and inserting the following new item: 5108. Supplemental claims. . (j) Remand To obtain advisory medical opinion Section 5109 of such title is amended by adding at the end the following new subsection: (d) (1) The Board of Veterans’ Appeals may remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion under this section to correct an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title when such error occurred prior to the agency of original jurisdiction decision on appeal. (2) The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion. . (k) Restatement of requirement for expedited treatment of remanded claims Section 5109B of such title is amended to read as follows: 5109B. Expedited treatment of remanded claims The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the agency of original jurisdiction of any claim that is remanded by the Board of Veterans' Appeals. . (l) Effective dates of awards Section 5110 of title 38, United States Code, is amended— (1) by amending subsection (a) to read as follows: (a) (1) Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (2) For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession: (A) A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. (B) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. (C) A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. (D) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision. (3) Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim. ; and (2) in subsection (i), in the first sentence— (A) by striking reopened and inserting readjudicated ; (B) by striking material and inserting relevant ; and (C) by striking reopening and inserting readjudication . (m) Definition of award or increased award for purposes of provisions relating to commencement of period of payment Section 5111(d)(1) of such title is amended by striking or reopened award and inserting award or award based on a supplemental claim . (n) Modification on limitation on fees allowable for representation Section 5904(c) of such title is amended, in paragraphs (1) and (2), by striking notice of disagreement is filed both places it appears and inserting claimant is provided notice of the agency of original jurisdiction’s initial decision under section 5104 of this title . (o) Clarification of Board of Veterans' Appeals referral requirements after order for reconsideration of decisions Section 7103(b)(1) of title 38, United States Code, is amended by striking heard both places it appears and inserting decided . (p) Conforming amendment relating to readjudication Section 7104(b) of such title is amended by striking reopened and inserting readjudicated . (q) Modification of procedures for appeals to Board of Veterans' Appeals (1) In general Section 7105 of title 38, United States Code, is amended— (A) in subsection (a)— (i) by striking the first sentence and inserting Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary. ; and (ii) by striking hearing and ; (B) by amending subsection (b) to read as follows: (b) (1) (A) Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title. (B) A notice of disagreement postmarked before the expiration of the 1-year period shall be accepted as timely filed. (C) A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board. (2) (A) Notices of disagreement shall be in writing, shall set out specific allegations of error of fact or law, and may be filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian. (B) Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim. (C) Notices of disagreement shall be filed with the Board. (3) (A) The notice of disagreement shall indicate whether the claimant requests— (i) a hearing before the Board; (ii) an opportunity to submit additional evidence without a hearing before the Board; or (iii) a review by the Board without a hearing or submission of additional evidence. (B) If the claimant does not expressly request a hearing before the Board in the notice of disagreement, no hearing before the Board shall be held. ; (C) by amending subsection (c) to read as follows: (c) If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except as may otherwise be provided by section 5104B or 5108 of this title or such regulations as are consistent with this title. ; (D) by striking subsection (d) and inserting the following new subsection (d): (d) The Board of Veterans’ Appeals may dismiss any appeal which fails to allege specific error of fact or law in the decision being appealed. ; (E) by striking subsection (e); and (F) in the section heading, by striking notice of disagreement and . (2) Clerical amendment The table of sections at the beginning of chapter 71 of such title is amended by striking the item relating to section 7105 and inserting the following new item: 7105. Filing of appeal. . (r) Modification of procedures and requirements for simultaneously contested claims Subsection (b) of section 7105A of such title is amended to read as follows: (b) (1) The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of thirty days shall be allowed for filing a brief or argument in response thereto. (2) Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice. . (s) Repeal of procedures for administrative appeals (1) In general Chapter 71 of such title is amended by striking section 7106. (2) Clerical amendment The table of sections at the beginning of chapter 71 of such title is amended by striking the item relating to section 7106. (t) Modifications relating to appeals: dockets; hearings Section 7107 of such title is amended to read as follows: 7107. Appeals: dockets; hearings (a) Dockets (1) The Board shall maintain two separate dockets as follows: (A) A non-hearing option docket shall be maintained for cases in which no Board hearing is requested and no additional evidence will be submitted. (B) A separate and distinct hearing option docket shall be maintained for cases in which a Board hearing is requested in the notice of disagreement or in which no Board hearing is requested, but the appellant requests, in the notice of disagreement, an opportunity to submit additional evidence. (2) Except as provided in subsection (b), each case before the Board will be decided in regular order according to its respective place on the Board’s non-hearing option docket or the hearing option docket. (b) Advancement on the docket (1) A case on either the Board’s non-hearing option docket or hearing option docket may, for cause shown, be advanced on motion for earlier consideration and determination. (2) Any such motion shall set forth succinctly the grounds upon which the motion is based. (3) Such a motion may be granted only— (A) if the case involves interpretation of law of general application affecting other claims; (B) if the appellant is seriously ill or is under severe financial hardship; or (C) for other sufficient cause shown. (c) Manner and scheduling of hearings for cases on board hearing option docket (1) For cases on the Board hearing option docket in which a hearing is requested in the notice of disagreement, the Board shall notify the appellant whether a Board hearing will be held— (A) at its principal location, or (B) by picture and voice transmission at a facility of the Department where the Secretary has provided suitable facilities and equipment to conduct such hearings. (2) (A) Upon notification of a Board hearing at the Board’s principal location as described in subparagraph (A) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (B) of such paragraph. If so requested, the Board shall grant such request. (B) Upon notification of a Board hearing by picture and voice transmission as described in subparagraph (B) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (A) of such paragraph. If so requested, the Board shall grant such request. (d) Screening of cases Nothing in this section shall be construed to preclude the screening of cases for purposes of— (1) determining the adequacy of the record for decisional purposes; or (2) the development, or attempted development, of a record found to be inadequate for decisional purposes. . (u) Repeal of certain authority for independent medical opinions (1) In general Section 7109 of such title is hereby repealed. (2) Clerical amendment The table of sections at the beginning of chapter 71 of such title is amended by striking the item relating to section 7109. (v) Clarification of procedures for review of decisions on grounds of clear and unmistakable error Section 7111(e) of title 38, United States Code, is amended by striking , without referral to any adjudicative or hearing official acting on behalf of the Secretary . (w) Evidentiary record before Board of Veterans' Appeals (1) In general Chapter 71 of title 38, United States Code, is amended by adding at the end the following new section: 7113. Evidentiary record before the Board of Veterans' Appeals (a) Non-Hearing option docket For cases in which a hearing before the Board of Veterans' Appeals is not requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. (b) Hearing option docket (1) (A) Except as provided in subparagraph (B) of this paragraph, for cases on the hearing option docket in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. (B) The evidentiary record before the Board for cases on the hearing option docket in which a hearing is requested, shall include each of the following, which the Board shall consider in the first instance: (i) Evidence submitted by the appellant and his or her representative, if any, at the Board hearing. (ii) Evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing. (2) (A) Except as provided in subparagraph (B) of this paragraph, for cases on the hearing option docket in which a hearing is not requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal. (B) The evidentiary record before the Board for cases on the hearing option docket in which a hearing is not requested, shall include each of the following, which the Board shall consider in the first instance: (i) Evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement. (ii) Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement. . (2) Clerical amendment The table of sections at the beginning of chapter 71 of such title is amended by inserting after the item relating to section 7112 the following new item: 7113. Evidentiary record before the Board of Veterans' Appeals. . (x) Applicability The amendments made by this Act shall apply to all claims for which notice of a decision under section 5104 of title 38, United States Code, is provided by the Secretary on or after the date that is 540 days after the date of the enactment of this Act.