I 118th CONGRESS 2d Session H. R. 8136 IN THE HOUSE OF REPRESENTATIVES April 26, 2024 Mrs. Peltola (for herself, Mr. Moylan , and Mr. Gottheimer ) introduced the following bill; which was referred to the Committee on Veterans' Affairs , and in addition to the Committee on the Judiciary , 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 improve the processes by which a veteran may appeal decisions affecting the provision of 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 VA Appeals Reform Act of 2024 . 2. Improvements to system for adjudication of claims for benefits under the laws administered by the Secretary of Veterans Affairs (a) Duty To assist; supplemental claims; expedited treatment of certain claims Chapter 51 of title 38, United States Code, is amended— (1) in section 5103A— (A) by redesignating subsections (b) through (i) as subsections (c) through (j), respectively; (B) by inserting after subsection (a) the following new subsection: (b) Assistance upon request of the claimant As part of the assistance provided under subsection (a), the Secretary shall, not later than 90 days after the claimant makes a request for assistance under this subsection, provide any of the following documents: (1) The veteran’s claims file. (2) A paginated copy of each component of each document in the evidence of record that the Secretary determines is relevant to the claim. (3) The contact information of the individual adjudicating the claim. (4) The contact information and curriculum vitae of any independent medical expert described in section 5109 of this title offering an advisory medical opinion in connection with the claim. (5) A copy of any correspondence relating to the claim between— (A) one or more employees of the Department; and (B) an employee of the Department and any other individual. (6) Upon the request of the claimant, a copy of any document relevant to the claim that the claimant adequately identifies and authorizes the Secretary to obtain that is in the possession of— (A) the Secretary; or (B) the head of any Federal department or agency. . (C) in subsection (f) (as so redesignated), by adding at the end the following new paragraph: (3) The duty of the Secretary to provide assistance under this section to a claimant with respect to a claim under this section shall continue until such time as the agency of original jurisdiction schedules a hearing to adjudicate the claim. ; and (D) in subsection (i) (as so redesignated), by striking except when new and relevant evidence is presented or secured, as and inserting except as provided under the conditions ; (2) in section 5104(b)— (A) in paragraph (2), by inserting before the period at the end , including citations to applicable page numbers. ; (B) in paragraph (3), by inserting , included as an appendix after regulations ; (C) in paragraph (5), by striking denial and all that follows through the end of the paragraph and inserting denial— (A) an identification of elements not satisfied leading to the denial; and (B) a summary of the rights of the veteran to appeal such denial. ; and (D) in paragraph (7), by inserting , including the diagnostic codes used in the determination of the disability percentage and a citation to the applicable regulation after compensation ; (3) in section 5104B, by amending subsection (c) to read as follows: (c) Evidentiary record for review (1) In the course of a higher-level review, the veteran may supplement the evidentiary record before the higher-level reviewer. (2) If, during review of the agency of original jurisdiction decision, the higher-level reviewer identifies an error on the part of the agency of original jurisdiction that constitutes a failure to satisfy its duties under section 5103A of this title, and that error occurred prior to the agency of original jurisdiction decision being reviewed, the higher-level reviewer shall return the claim to the agency of original jurisdiction. ; (4) in section 5108, by amending subsection (a) to read as follows: (a) In general The Secretary shall readjudicate a supplemental claim, taking into consideration all of the evidence of record when, with respect to such supplemental claim— (1) new and material evidence is presented or secured; (2) the Board of Veterans Appeals identifies a clear and unmistakable error on the part of the agency of original jurisdiction; or (3) a law or regulation enacted after the date of the denial of the original claim permits the veteran to bring such supplemental claim. ; (5) in section 5109A, by adding at the end the following new subsection: (f) In this section, the term clear and unmistakable error includes, with respect to a decision by the Secretary, any of the following: (1) Any error of law, fact, or application of law to fact— (A) that is manifest on the face of such decision; and (B) affected the outcome of such decision. (2) The misinterpretation or misapplication of a statute, regardless of whether such decision otherwise complies with regulations issued by the Secretary in effect as of the date of such decision. (3) The misinterpretation or misapplication of an unambiguous regulation, regardless of whether such decision otherwise complies with the regulations described in paragraph (2). ; and (6) by striking section 5109B and inserting the following new section 5109B: 5109B. Expedited treatment of returned and remanded claims (a) In general The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Veterans Benefits Administration of any claim that is— (1) returned by a higher-level adjudicator under section 5104B of this title; or (2) remanded by the Board of Veterans' Appeals. (b) Deadline (1) Except as provided in paragraph (2), with respect to any claim described in subsection (a), the Secretary shall take the actions under such subsection not later than 90 days after the date on which— (A) a higher-level adjudicator returned such claim; or (B) the Board of Veterans’ Appeals remanded such claim. (2) The Board of may, upon motion of the claimant, extend the deadline under paragraph (1) if the Board determines there is good cause for such extension. . (b) Attorney fees for filing of notice of intent To appeal certain decisions Section 5904(c) of title 38, United States Code is amended— (1) in paragraph (4)— (A) by striking the enumerator and inserting (4)(A) ; and (B) by striking under this paragraph and inserting under this subparagraph ; and (2) by adding at the end, the following new subparagraph: (B) A reasonable fee, not to exceed the lesser of $200 or 20 percent of the initial payment from the claimant to the attorney, may be charged or paid in connection with the filing of a notice of intent to appeal a decision by the Secretary under section 511 of this title affecting the provision of benefits to a claimant. . (c) Appointment of administrative law judges; performance reviews; scheduling conferences Chapter 71 of title 38, United States Code, is amended as follows: (1) In section 7101— (A) in subsection (c)(1)— (i) by amending subparagraph (A) to read as follows: (A) The Chairman may from time to time designate a retired officer of the Armed Forces who previously served as a military judge (as defined in section 801 of title 10 (article 1 of the Uniform Code of Military Justice)) to serve as an acting member of the Board. Except as provided in subparagraph (B), any such designation shall be for a period not to exceed 180 days, as determined by the Chairman. ; and (ii) by adding at the end the following new subparagraph: (E) An individual designated pursuant to subparagraph (A) shall complete a program of training with respect to the laws administered by the Secretary that the Secretary determines appropriate. ; and (B) in subsection (d)— (i) in subparagraph (F), by striking ; and and inserting a semicolon; (ii) by redesignating subparagraph (G) as subparagraph (H); and (iii) by inserting after subparagraph (F), the following new subparagraph: (G) the number of decisions of the Board remanded or returned to the Board, disaggregated by the Board member who issued the final decision so remanded or returned; and . (2) In section 7101A— (A) in subsection (a)(2), by striking shall be and all that follows through the end of the paragraph and inserting shall be— (A) an administrative law judge appointed under section 3105 of title 5; and (B) a member in good standing of the bar of a State. ; and (B) in subsection (c)(1)— (i) in subparagraph (B), by striking Not less than one year after the job performance standards under subsection (f) are initially established, and not less often than once every three years thereafter and inserting Under the conditions described in subparagraph (C) ; and (ii) by adding at the end the following new subparagraph: (C) The performance review panel shall review the job performance of a member of the Board— (i) not less than one year after the job performance standards under subsection (f) are initially established; (ii) not less often than once every three years after such standards are established; and (iii) when, during any 12-month-period, the Court of Appeals for Veterans Claims or a higher authority remands to the Board more than 60 percent of the decisions issued by such member. . (3) In section 7102— (A) by redesignating subsection (c) as subsection (d); and (B) by inserting after subsection (b) the following new subsection: (c) In the case of a decision of the Board that is remanded to the Board by the Court of Appeals for Veterans Claims or a higher authority, any subsequent proceeding associated with the decision so remanded may not be assigned to the member of the Board who issued such decision. . (4) In section 7105— (A) in the heading, by inserting ; scheduling conferences after Filing of appeal ; (B) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and (C) by inserting after subsection (b) the following new subsection: (c) (1) Not later than 90 days after a veteran files a notice of disagreement under subsection (a), the Board of Veterans Appeals shall hold, by picture and voice transmission, a conference with such veteran and the representative of such veteran, if any, to schedule such hearing. (2) During the conference under paragraph (1), the Board shall— (A) provide the veteran— (i) not fewer than 30 days for such veteran to request a hearing; (ii) not fewer than 30 days to secure counsel for such hearing; (iii) not fewer than 60 days for such veteran to submit to the Board the specific determinations or findings of the Board with which the claimant disagrees; (iv) not fewer than 120 days for such veteran to submit evidence relating to the determinations described in clause (iii); (v) information relating to the rules governing an appeal under this chapter; and (vi) contact information for a representative of the Board, including an electronic mail address; and (B) schedule a tentative date for such hearing. (3) The Secretary may, upon motion of the veteran, extend the deadlines described in clauses (i) through (iv) of subparagraph (A) for good cause, including the failure of the Secretary to provide requested relevant or material information. . (5) In section 7107— (A) in subsection (a)— (i) by striking two separate dockets each place it appears and inserting one docket ; and (ii) in paragraph (3)— (I) by striking (A) ; (II) by striking , except that cases and all that follows through are assigned ; and (III) by striking subparagraph (B); and (B) in subsection (e), by inserting , if applicable before the period at the end; and (C) by adding at the end the following new subsection: (f) Hearing transcripts The Board, upon the request of the veteran and at no cost to such veteran, provide such veteran with a copy of the transcript of the hearing and a digital recording of any picture and voice transmission considered during such hearing. . (6) In section 7111, by adding at the end the following new subsection: (g) In this section, the term clear and unmistakable error includes, with respect to a decision of the Board, any of the following: (1) Any error of law, fact, or application of law to fact— (A) that is manifest on the face of such decision; and (B) affected the outcome of such decision. (2) The misinterpretation or misapplication of a statute, regardless of whether such decision otherwise complies with regulations issued by the Secretary in effect as of the date of such decision. (3) The misinterpretation or misapplication of an unambiguous regulation, regardless of whether such decision otherwise complies with the regulations described in paragraph (2). ; (7) By adding at the end the following new section (and conforming the table of chapters at the beginning of such chapter accordingly): 7114. Program to establish electronic case management and filing system (a) In general The Secretary shall establish an electronic filing and case management system for the purposes of processing appeals under this chapter. (b) Elements The system required by subsection (a) shall include— (1) an internet database of documents relating to appeals under this chapter; (2) subject to subsection (d), a mechanism by which attorneys approved by the Office of the General Counsel of the Department to represent a veteran before the Board of Veterans Appeals may access such internet database to an extent the Secretary determines appropriate; and (3) a mechanism by which a veteran, or the attorney or representative of a veteran, can submit to the Board of Veterans Appeals documents relating to an appeal under this chapter, in portable document format or other commercially available format, through such internet database. (c) Training Not later than one year after the date on which the Secretary establishes the program required by subsection (a), the Secretary shall make available to attorneys described in subsection (b)(2) training on such program. (d) Certification of good standing As a condition of access to the internet database described in subsection (b)(2), the Secretary may require an attorney to provide to the Secretary a certificate of good standing from a State court or Federal district court. (e) Required consideration In carrying out subsection (a), the Secretary shall consider the case management/electronic filing system (CM/ECF) administered by United States District Courts. . (d) Disclosure of certain medical records Section 7332(b)(2) of title 38, United States Code, is amended by adding at the end the following new subparagraphs: (J) To the patient, and the attorney of such patient, if any, for the purposes of using such record in connection with an appeal under chapter 71 of this title. (K) To the Court of Appeals for Veterans Claims, for purposes of filing an appeal under chapter 72 of this title. . (e) Deadline for certain mechanism The Secretary of Veterans Affairs shall establish the mechanism described in paragraph (3) of subsection (b) of section 7112 of title 38, United States Code, as added by subsection (c)(7), by not later than 180 after the date of the enactment of this Act. 3. Expansion of jurisdiction of United States Court of Appeals for Veterans Claims and United States Court of Appeals for the Federal Circuit (a) United States Court of Appeals for Veterans Claims (1) Expansion Section 502 of title 38, United States Code, is amended by striking the Federal Circuit and inserting Veterans Claims . (2) Scope of review of certain claims Section 7261 of such title is amended— (A) in paragraph (4) of subsection (a), by striking clearly erroneous and inserting arbitrary and capricious ; (B) by striking subsection (c); (C) by redesignating subsection (d) as subsection (c); and (D) in subsection (c) (as so redesignated), by striking shall review only questions raised as to compliance with and the validity of the regulation and inserting shall review such decision and the accompanying findings of fact by trial de novo . (b) United States Court of Appeals for the Federal Circuit (1) Expansion Section 1295(a) of title 28, United States Code, is amended— (A) in paragraph (13), by striking ; and ; (B) in paragraph (14), by striking the period at the end and inserting ; and ; and (C) by adding at the end the following new paragraph: (15) of an appeal from a final decision of the United States Court of Appeals for Veterans Claims. . (2) Repeal of certain provision Section 7292 of title 38, United States Code, is repealed. (3) Conforming amendments Section 7252 of such title is amended by striking subsection (c).