Go to navigation Go to content
Toll-Free: (877) 629-1712
Phone: (303) 449-4773
Sean Kendall

House Passes VA Appeals Reform


Posted on Sep 15, 2016

The House has passed the VA's proposed refrom bill, which unfortunately, does nothing for the existing 380,000 cases pending before the VA on appeal.  The result will be that new appeals will be decided faster than older pending appeals.  

SEC. 9. APPEALS REFORM.

(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 this title.

“(35) The term ‘relevant evidence’ means evidence that tends to prove or disprove a matter in issue.”.

(b) Notice To Claimants Of Required Information And Evidence.—Section 5103 of title 38, United States Code, is amended—

(1) in subsection (a)(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

(2) in subsection (b) by adding at the end the following new paragraph:

“(6) Nothing in this section shall require notice to be sent for a supplemental claim that is filed within the timeframe set forth in subsections (a)(2)(B) and (a)(2)(D) of section 5110 of this title.”.

(c) Rule With Respect To Disallowed Claims.—Section 5103A(f) of title 38, United States Code, is amended to read as follows:

“(f) Rule With Respect To Disallowed Claims.—Nothing in this section shall be construed to require the Secretary to readjudicate a claim that has been disallowed except when new and relevant evidence is presented or secured, as described in section 5108 of this title.”.

(d) Other Matters.—Chapter 51 of title 38, United States Code, is amended by inserting after section 5103A the following new sections:

§ 5103B. Applicability of duty to assist

“(a) Time Frame.—The Secretary’s duty to assist under section 5103A of this title 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 decision of the agency of original jurisdiction decision with respect to such claim, or supplemental claim, under section 5104 of this title.

“(b) Non-Applicability To Certain Reviews And Appeals.—The Secretary’s duty to assist under section 5103A of this title 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.

“(c) Correction Of Duty To Assist Errors.— (1) If, during review of the decision of the agency of original jurisdiction 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 undersection 5103A of this title, and that error occurred prior to the decision of the agency of original jurisdiction being reviewed, the higher-level reviewer shall return the claim for correction of such error and readjudication unless the claim can be granted in full.

“(2) If the Board, during review on appeal of a decision of the agency of original jurisdiction decision, identifies an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title, and that error occurred prior to the decision of the agency of original jurisdiction on appeal, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication unless the claim can be granted in full. 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.

§ 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.

§ 5104B. Higher-level review by the agency of original jurisdiction

“(a) In General.—The claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the jurisdiction of the agency of original jurisdiction.

“(b) Time And Manner Of Request.—A request for higher-level review by the agency of original jurisdiction must be in writing in the form prescribed by the Secretary and made within one year of the notice of the decision of the agency of original jurisdiction. 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 decision of the agency of original jurisdiction being reviewed.

“(e) De Novo Review.—Higher-level review under this section shall be de novo.”.

(e) Notice Of Decisions.—Section 5104(b) of title 38, United States Code, 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—

“(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; and

“(7) if applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.”.

(f) Supplemental Claims.—Section 5108 of title 38, United States Code, 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.”.

(g) Remands For Medical Opinions.—Section 5109 of title 38, United States Code, is amended by adding at the end the following new subsection:

“(d) 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 decision of the agency of original jurisdiction on appeal. The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.”.

(h) Effective Dates Of Awards.—Section 5110 of title 38, United States Code, is amended—

(1) by striking subsection (a) and inserting the following new subsection (a):

“(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 applying the effective date rules in this section, the date of application shall be considered the date of the filing of the initial application for a benefit provided that 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 within one year of an agency of original jurisdiction decision.

“(B) A supplemental claim under section 5108 of this title within one year of an agency of original jurisdiction decision.

“(C) A notice of disagreement within one year of an agency of original jurisdiction decision.

“(D) A supplemental claim under section 5108 of this title within one year of a decision of the Board of Veterans’ Appeals.

“(3) Except as otherwise provided in this section, for supplemental claims received more than one year after an agency of original jurisdiction decision or a decision by the Board of Veterans’ Appeals, 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) by—

(A) striking “reopened” and inserting “readjudicated”;

(B) striking “material” and inserting “relevant”; and

(C) striking “reopening” and inserting “readjudication”.

(i) Definition Of Award Or Increased Reward.—Section 5111(d)(1) of title 38, United States Code, is amended by striking “or reopened award;” and inserting “award or award based on a supplemental claim;”.

(j) Recognition Of Agents And Attorneys Generally.—Section 5904 of title 38, United States Code, is amended—

(1) in subsection (c)(1) by striking “notice of disagreement is filed” and inserting “claimant is provided notice of the initial decision of the agency of original jurisdiction under section 5104 of this title”; and

(2) in subsection (c)(2) by striking “notice of disagreement is filed” and inserting “claimant is provided notice of the initial decision of the agency of original jurisdiction under section 5104 of this title”.

(k) Correction Of Obvious Errors.—Section 7103 of title 38, United States Code, is amended—

(1) in subsection (b)(1)(A) by striking “heard” and inserting “decided”; and

(2) in subsection (b)(1)(B) by striking “heard” and inserting “decided”.

(l) Jurisdiction Of Board.—Section 7104(b) of title 38, United States Code, is amended by striking “reopened” and inserting “readjudicated”.

(m) Filing Of Appeal.—Section 7105 of title 38, United States Code, is amended—

(1) in subsection (a)—

(A) by striking the first sentence and inserting “Appellate review will be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary.”; and

(B) by striking “hearing and”;

(2) by amending subsection (b) to read as follows:

“(b) (1) 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 under section 5104, 5104B, or 5108 of this title. A notice of disagreement postmarked before the expiration of the one-year period will be accepted as timely filed. A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board.

“(2) Notices of disagreement must be in writing, must 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. Not more than one recognized organization, attorney, or agent will be recognized at any one time in the prosecution of a claim. Notices of disagreement must be filed with the Board.

“(3) The notice of disagreement shall indicate whether the claimant requests a hearing before the Board, requests an opportunity to submit additional evidence without a Board hearing, or requests review by the Board without a hearing or submission of additional evidence. If the claimant does not expressly request a Board hearing in the notice of disagreement, no Board hearing will be held.”;

(3) 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 will not thereafter be readjudicated or allowed, except as may otherwise be provided bysection 5104B or 5108 of this title or regulations not inconsistent with this title.”;

(4) by striking subsections (d)(1) through (d)(5);

(5) by adding a new subsection (d) to read as follows:

“(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.”; and

(6) by striking subsection (e).

(n) Simultaneously Contested Claims.—Subsection (b) of section 7105A of title 38, United States Code, is amended to read as follows:

“(b) The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of 30 days shall be allowed for filing a brief or argument in response thereto. 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.”.

(o) Administrative Appeals.—Strike section 7106 of title 38, United States Code.

(p) Dockets And Hearings.—Section 7107 of title 38, United States Code, is amended—

(1) by amending subsection (a) to read as follows:

“(a) The Board shall maintain two separate dockets. A non-hearing option docket shall be maintained for cases in which no Board hearing is requested and no additional evidence will be submitted. 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. 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.”;

(2) by amending subsection (b) to read as follows:

“(b) 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. Any such motion shall set forth succinctly the grounds upon which the motion is based. Such a motion may be granted only—

“(1) if the case involves interpretation of law of general application affecting other claims;

“(2) if the appellant is seriously ill or is under severe financial hardship; or

“(3) for other sufficient cause shown.”;

(3) by amending subsection (c) to read as follows:

“(c) (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 subsection (c)(1)(A) of this section, the appellant may alternatively request a hearing as described in subsection (c)(1)(B) of this section. If so requested, the Board shall grant such request.

“(B) Upon notification of a Board hearing by picture and voice transmission as described in subsection (c)(1)(B) of this section, the appellant may alternatively request a hearing as described in subsection (c)(1)(A) of this section. If so requested, the Board shall grant such request.”; and

(4) by striking subsections (d) and (e) and redesignating subsection (f) as subsection (d).

(q) Independent Medical Opinions.—Strike section 7109 of title 38, United States Code.

(r) Revision Of Decisions On Grounds Of Clear And Unmistakable Error.—Section 7111(e) of title 38, United States Code, is amended by striking “merits, without referral to any adjudicative or hearing official acting on behalf of the Secretary.” and inserting “merits.”.

(s) Evidentiary Record.—Chapter 71 of title 38, United States Code, is amended by adding the following new section:

§ 7113. Evidentiary record before the board

“(a) Non-Hearing Option Docket.—For cases in which a Board hearing 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 agency of original jurisdiction decision on appeal.

“(b) Hearing Option Docket.— (1) Except as provided in paragraph (2), 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 agency of original jurisdiction decision on appeal.

“(2) 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—

“(A) evidence submitted by the appellant and his or her representative, if any, at the Board hearing; and

“(B) evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing.

“(3) (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; and

“(ii) evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.”.

(t) Conforming Amendment.—The heading of section 7105 is amended by striking “notice of disagreement and”.

(u) Clerical Amendments.—

(1) CHAPTER 51.—The table of sections at the beginning of chapter 51 of title 38, United States Code, is amended—

(A) by inserting after the item relating to section 5103A the following new item:


“5103B. Applicability of duty to assist.”;

and

(B) by inserting after the item relating to section 5104 the following new items:


“5104A. Binding nature of favorable findings.
“5104B. Higher-level review by the agency of original jurisdiction.”;

and

(C) by striking the item relating to section 5108 and inserting the following new item:


“5108. Supplemental claims.”.

(2) CHAPTER 71.—The table of sections at the beginning of chapter 71 of title 38, United States Code, is amended—

(A) by striking the item relating to section 7105 and inserting the following new item:


“7105. Filing of appeal.”;

(B) by striking the item relating to section 7106;

(C) by striking the item relating to section 7109; and

(D) by adding at the end the following new item:


“7113. Evidentiary record before the Board.”.

back to top