II 118th CONGRESS 1st Session S. 2718 IN THE SENATE OF THE UNITED STATES September 5, 2023 Mr. Tester (for himself and Mr. Tillis ) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs A BILL To amend title 38, United States Code, to improve matters relating to medical examinations for veterans disability compensation, and for other purposes.

1. Short title This Act may be cited as the Medical Disability Exam Improvement Act of 2023 . 2. Modification of eligibility requirements for medical nexus examinations for toxic exposure risk activities Section 1168(a)(1) of title 38, United States Code, is amended— (1) by striking with evidence of a disability and evidence of participation in a toxic exposure risk activity and inserting and expresses that such claim is associated with a toxic exposure risk activity ; and (2) by striking and such evidence and inserting and evidence of record before the Secretary . 3. Specification of accounts for certain expenses relating to medical examinations for veterans disability compensation claims under laws administered by Secretary of Veterans Affairs Section 5103A(d) of title 38, United States Code, is amended by adding at the end the following new paragraph: (3) Expenses of carrying out a medical examination or obtaining a medical opinion under paragraph (1), including payment for travel and incidental expenses under the terms and conditions set forth by section 111 of this title for the examination or medical opinion, shall be reimbursed to the accounts available for the general operating expenses of the Veterans Benefits Administration and information technology systems from amounts available to the Secretary for payment of compensation and pensions. . 4. Study on improvements to Department of Veterans Affairs covered medical disability examinations in rural areas (a) Study required Not later than one year after the date of the enactment of this Act, the Secretary of Veterans Affairs shall complete a study on access by rural veterans to covered medical disability examinations. (b) Elements (1) In general The study conducted under subsection (a) shall include the following: (A) A comparison of the average number of days to complete covered medical disability examinations for rural veterans compared to a national non-rural average time to complete a covered medical disability examinations, by either contractors or employees of the Department. (B) A root cause analysis of differences identified pursuant to subparagraph (A). (C) The plan of the Secretary for the following year to improve access described in subsection (a), which shall include a plan for the pursuit of a commercial or industry-standard solution or technology that could enable rural or housebound veterans to receive examinations without traveling long distances. (2) National non-rural average defined For purposes of paragraph (1)(A), the term national non-rural average means the national average of all periods in the previous calendar year— (A) beginning on the date on which a contractor or employee of the Department received a request from the Secretary to conduct a covered medical disability examination for a veteran who is not a rural veteran; and (B) ending on the date on which the examination was completed. (c) Report on study Not later than one year after the date of the enactment of this Act, the Secretary shall submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives a report on the findings of the Secretary with respect to the study completed under subsection (a). (d) Annual report on plans Not later than two years after the date of the enactment of this Act and not less frequently than once each year thereafter, the Secretary shall submit to the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives a report evaluating the conduct of the plans of the Secretary to improve access described in subsection (a) and a new or revised plan for such improvement in the following year. 5. Improvements to training for processing medical disability examinations (a) In general Not later than 180 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall require additional training for employees of the Department of Veterans Affairs who order or review covered medical disability examinations. (b) Training requirements The training required under subsection (a) shall include the following: (1) Instruction on how to assess whether a covered medical disability examination is adequate for purposes of adjudicating the particular claim for a benefit under chapter 11 or 15 of title 38, United States Code, for which the examination was ordered by the Department. (2) Instruction on how to assess whether a covered medical disability examination is necessary for purposes of adjudicating the particular claim for a benefit under chapter 11 or 15 of title 38, United States Code, for which the examination was ordered by the Department. (3) Review of relevant statutes, judicial decisions, regulations, and policies of the Department regarding covered medical disability examinations, including, at a minimum— (A) the duty to assist; (B) the relevance of causation compared to other evidentiary standards in covered medical disability examinations; (C) the required elements of a covered medical disability examination, with an emphasis on the requirement for reasoned analysis to support medical opinions; and (D) the relevance of a lack of a statutory or regulatory presumption of service-connection in covered medical disability examinations. (c) Frequency The Secretary shall ensure that each employee of the Department who orders or uses a covered medical disability examination to evaluate a claim for a benefit under chapter 11 or 15 of title 38, United States Code, completes training that incorporates the requirements of subsection (b) not less frequently than once each year. (d) Modification of reports (1) Board of Veterans' Appeals Section 7101(d)(2) of title 38, United States Code, is amended— (A) in subparagraph (F), by striking ; and and inserting a semicolon; (B) in subparagraph (G), by striking the period at the end and inserting ; and ; and (C) by adding at the end the following new subparagraph: (H) a summary of recurring issues that the Chairman believes could be resolved by better training for employees of the Department, increased oversight, or clarification from either the Department or Congress. . (2) United States Court of Appeals for Veterans Claims Section 7288(b) of title 38, United States Code, is amended by adding at the end the following new paragraph: (16) A summary of recurring issues that the chief judge of the Court believes could be resolved by better training for employees of the Department, increased oversight, or clarification from either the Department or Congress. . (e) Definition of covered medical disability examination In this section, the term covered medical disability examination means a medical examination or medical opinion that the Secretary determines necessary for the purposes of adjudicating a benefit under chapter 11 or 15 of title 38, United States Code, regardless of whether conducted by an employee or a contractor of the Department. 6. Review and priority processing of claims with inadequate or unnecessary examinations (a) Review Not later than 1 year after the date of the enactment of this Act and not less frequently than once every calendar month thereafter, the Secretary of Veterans Affairs shall review a statistically significant sample of all covered medical disability examinations completed during the previous calendar month. (b) Further sample requirements Under each review required by subsection (a), the Secretary shall ensure the review includes— (1) a statistically significant sample of covered medical disability examinations completed by employees of the Department of Veterans Affairs; and (2) a statistically significant sample of covered medical disability examinations completed by each contractor that provides such examinations for the Department. (c) Analysis Under each review required by subsection (a), the Secretary shall analyze— (1) the sample specified in subsection (b)(1) and identify the percentage of examinations that were adequate for purposes of adjudicating the particular claim for a benefit under chapter 11 or 15 of title 38, United States Code, for which the examination was ordered by the Department; (2) the sample specified in subsection (b)(2) and identify the percentage of examinations that were adequate for purposes of adjudicating the particular claim for a benefit under chapter 11 or 15 of title 38, United States Code, for which the examination was ordered by the Department; and (3) the overall sample specified in subsection (a) and identify the percentage of examinations that were necessary for purposes of adjudicating the particular claim for a benefit under chapter 11 or 15 of title 38, United States Code, for which the examination was ordered by the Department. (d) Priority processing If during a review under subsection (a) the Secretary finds any covered medical disability examination to be not adequate or not necessary for adjudicating a claim of a claimant, the Secretary may provide such claimant— (1) another examination on a priority basis; and (2) priority processing for the entirety of impacted claim. (e) Covered medical disability examination defined In this section, the term covered medical disability examination means a medical examination or medical opinion that the Secretary determines necessary for the purposes of adjudicating a benefit under chapter 11 or 15 of title 38, United States Code, regardless of whether conducted by an employee or a contractor of the Department. 7. Mechanism for contractors conducting disability examinations under certain Department of Veterans Affairs pilot program to transmit medical evidence introduced by claimants during examinations Section 504 of the Veterans' Benefits Improvements Act of 1996 ( Public Law 104–275 ; 38 U.S.C. 5101 note) is amended— (1) by redesignating subsections (d) and (e) as subsection (e) and (f), respectively; and (2) by inserting after subsection (c) the following new subsection (d): (d) Mechanism for transmittal of evidence introduced by applicants during examinations The Secretary shall establish a mechanism whereby a health care professional can transmit to the Secretary, evidence introduced by the applicant during a medical examination or in conjunction with such examination. .