[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[S. 1445 Introduced in Senate (IS)]

103d CONGRESS
  1st Session
                                S. 1445

 To amend title 38, United States Code, to improve and clarify certain 
  adjudication and appeal procedures relating to claims for benefits 
     under laws administered by the Department of Veterans Affairs.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

            September 9 (legislative day, September 7), 1993

 Mr. Rockefeller (by request) 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 and clarify certain 
  adjudication and appeal procedures relating to claims for benefits 
     under laws administered by the Department of Veterans Affairs.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; REFERENCES TO TITLE 38, UNITED STATES CODE.

    (a) Short Title.--This Act may be cited as the ``Veterans' Appeals 
Improvement Act of 1993''.
    (b) References.--Except as otherwise expressly provided, whenever 
in this Act an amendment is expressed in terms of an amendment to a 
section or other provision, the reference shall be considered to be 
made to a section or other provision of title 38, United States Code.

SEC. 2. COMPOSITION OF THE BOARD OF VETERANS' APPEALS.

    (a) Board Members and Personnel.--Section 7101(a) is amended to 
read as follows:
    ``(a)(1) There is in the Department a Board of Veterans' Appeals 
(hereafter in this chapter referred to as the `Board'). The Board is 
under the administrative control and supervision of a Chairman directly 
responsible to the Secretary.
    ``(2) The members of the Board shall be the Chairman, a Vice 
Chairman, such number of Deputy Vice Chairmen as the Chairman may 
designate under subsection (b)(4), and such number of other members as 
may be found necessary to conduct hearings and consider and dispose of 
matters properly before the Board in a timely manner. The Board shall 
have such other professional, administrative, clerical, and 
stenographic personnel as are necessary to conduct hearings and 
consider and dispose of matters properly before the Board in a timely 
manner.''.
    (b) Appointment and Removal of Board Members.--Section 7101(b) is 
amended--
            (1) in paragraph (2)(A), by striking ``other members of the 
        Board (including the Vice Chairman)'' and inserting in lieu 
        thereof ``Board members other than the Chairman'';
            (2) in paragraph (2)(B), by striking ``paragraph'' and 
        inserting in lieu thereof ``subparagraph''; and
            (3) by striking out paragraph (4) and inserting in lieu 
        thereof the following new paragraph (4):
    ``(4) The Secretary shall designate one Board member as Vice 
Chairman based upon recommendations of the Chairman. The Chairman may 
designate one or more Board members as Deputy Vice Chairmen. The Vice 
Chairman and any Deputy Vice Chairman shall perform such functions as 
the Chairman may specify. The Vice Chairman shall serve as Vice 
Chairman at the pleasure of the Secretary. Any Deputy Vice Chairman 
shall serve as Deputy Vice Chairman at the pleasure of the Chairman.''.
    (c) Acting Board Members.--Section 7101(c) is amended--
            (1) by striking out paragraph (1) and inserting in lieu 
        thereof the following new paragraph (1):
    ``(1) The Chairman may from time to time designate one or more 
employees of the Department to serve as acting Board members.'';
            (2) by striking out paragraph (2);
            (3) by redesignating paragraph (3) as paragraph (2); and
            (4) in paragraph (2), as so redesignated--
                    (A) by striking out ``temporary Board members 
                designated under this subsection and the number of''; 
                and
                    (B) by striking out ``section 7102(a)(2)(A)(ii) of 
                this title'' and inserting in lieu thereof ``paragraph 
                (1) of this section''.
    (d) Chairman's Annual Report.--Section 7101(d)(2) is amended--
            (1) in subparagraph (D), by striking out ``year; and'' and 
        inserting in lieu thereof ``year;'';
            (2) in subparagraph (E), by striking out ``year.'' and 
        inserting in lieu thereof ``year; and''; and
            (3) by adding at the end the following:
            ``(F) the names of those employees of the Department 
        designated under subsection (c)(1) to serve as acting Board 
        members during that year and the number of cases each such 
        acting Board member participated in during that year.''.
    (e) Conforming Amendments.--(1) Section 7101(d)(3)(B) is amended by 
striking out ``section 7103(d)'' and inserting in lieu thereof 
``section 7101(b)''.
    (2) Section 7101(e) is amended in the first sentence by striking 
out ``a temporary or'' and inserting in lieu thereof ``an''.

SEC. 3. ASSIGNMENT OF MATTERS BEFORE THE BOARD.

    Section 7102 is amended to read as follows:
``Sec. 7102. Assignment of matters before the Board
    ``The Chairman may determine any matter before the Board, or rule 
on any motion in connection therewith, or may assign any such matter or 
motion to any other Board member or a panel of members for 
determination. Any such assignment by the Chairman may not be reviewed 
by any other official or by any court, whether by an action in the 
nature of mandamus or otherwise.''.

SEC. 4. DETERMINATIONS BY THE BOARD.

    (a) In General.--Section 7103(a) is amended to read as follows:
    ``(a) When the Chairman retains a matter or submits it to another 
Board member or a panel of members for determination in accordance with 
section 7102 of this title, or to an expanded panel of Board members in 
accordance with subsection (b) of this section, the Chairman, other 
member, or panel of members may:
            ``(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 become moot. Each order of dismissal shall 
        include a written statement of the Board's findings and 
        conclusions, and the reasons or bases for those findings and 
        conclusions, in support of the dismissal.
            ``(2) Issue an order remanding the case, in whole or in 
        part, to the agency of original jurisdiction for such 
        additional development as the Chairman, other 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 decision shall constitute the 
        Board's final disposition of the issues so decided. Such 
        decisions shall be based on the entire record in the 
        proceeding, upon consideration of all evidence and material of 
        record, and upon applicable provisions of law and regulation. 
        The Board shall be bound in its decisions, including allowances 
        made under the provisions of subsection (d) of this section, by 
        the regulations of the Department, the instructions of the 
        Secretary, and the precedent opinions of the chief legal 
        officer of the Department. Each decision of a Board member or a 
        panel of members shall include--
                    ``(A) a written statement of the Board's findings 
                and conclusions, and the reasons or bases for those 
                findings and conclusions, on all material issues of 
                fact and law presented on the record; and
                    ``(B) an order granting appropriate relief or 
                denying relief.
        Decisions by a panel of Board members, except as otherwise 
        provided in subsection (b), shall be made by a majority of the 
        members of the panel.''.
    (b) Reconsideration.--Section 7103(b) is amended to read as 
follows:
    ``(b) The decision of a Board member or a panel of members is 
final, unless the Chairman orders reconsideration of the case, and a 
claim disallowed by the Board may not thereafter be reopened or allowed 
except as provided in section 5108 of this title and subsection (d) of 
this section. If the Chairman orders reconsideration in a case, the 
case shall be considered upon reconsideration by a panel of members 
other than the Chairman if one member originally decided the case or by 
an expanded panel of members other than the Chairman if a panel 
originally decided the case. When a panel considers a case after a 
motion for reconsideration has been granted, the decision of a majority 
of the panel members shall constitute the final decision of the Board, 
except as provided in subsection (d). If the expanded panel cannot 
reach a majority decision, the Chairman may either assign additional 
members other than the Chairman to the panel or vote with the members 
of the expanded panel so as to create a majority decision. Either the 
expanded panel majority or the majority made with the vote of the 
Chairman shall constitute the final decision of the Board, except as 
provided in subsection (d).''.
    (c) Administrative Allowance; Notice of Determination.--Section 
7103 is amended by adding at the end the following:
    ``(d) Whenever a Board member other than the Chairman or Vice 
Chairman is of the opinion that a prior, 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 shall recommend such allowance to the Chairman or Vice Chairman. 
The Chairman or Vice Chairman, whether upon the recommendation of any 
other Board member or upon the Chairman's or Vice Chairman's own 
motion, if of the opinion that a prior, 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, shall approve 
the award of any benefit, or any increase therein, on the basis of such 
difference of opinion. The discretionary exercise of the authority 
provided to the Chairman and Vice Chairman under this subsection shall 
not be reviewed by any other official or by any court, whether by an 
action in the nature of mandamus or otherwise.
    ``(e) 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 appellant and the appellant's authorized representative 
(if any) at the last known address of the appellant and at the last 
known address of such representative (if any), respectively.''.

SEC. 5. JURISDICTION OF THE BOARD.

    Section 7104 is amended--
            (1) by striking out ``(a)'';
            (2) by striking out ``211(a)'' and inserting in lieu 
        thereof ``511(a)''; and
            (3) by striking out all after ``made by the Board.''.

SEC. 6. APPELLATE PROCEDURE.

    Section 7105(d) is amended by striking out paragraph (5).

SEC. 7. MEDICAL OPINIONS.

    Section 7109 is amended to read as follows:
``Sec. 7109. Medical opinions
    ``(a) A Board member or a panel of members before whom a matter 
which involves a medical question is pending may, in the discretion of 
the member or panel, request an opinion on that medical question from--
            ``(1) an employee of the Board who is licensed to practice 
        medicine in any State;
            ``(2) an employee of the Veterans Health Administration who 
        is licensed to practice medicine in any State and who has been 
        designated by the Under Secretary for Health to provide such an 
        opinion; or
            ``(3) an employee of any Federal department or agency who 
        is licensed to practice medicine in any State and who has been 
        designated, in accordance with arrangements made by the 
        Secretary with the head of any such Federal department or 
        agency, to provide such an opinion.
    ``(b) When, in the judgment of a Board member or a panel of members 
assigned a matter for determination in accordance with section 7102 of 
this title, the medical complexity or controversy involved in that 
matter warrants expert medical opinion in addition to, or in lieu of, 
that available within the Department or within another Federal 
department or agency, the Board may secure an advisory medical opinion 
from one or more independent medical experts who are not employees of 
the Department or of another Federal department or agency. The 
Secretary shall make necessary arrangements with recognized medical 
schools, universities, or clinics to furnish such advisory medical 
opinions at the request of the Chairman. Any such arrangement shall 
provide that the actual selection of the expert or experts to give the 
advisory opinion in an individual case shall be made by an appropriate 
official of such institution. For purposes of this section, an employee 
of a medical school, university, or clinic shall not be considered an 
employee of the Department or another Federal department or agency just 
because the medical school, university, or clinic receives grants from, 
or provides contract services to, the Department or another Federal 
department or agency.
    ``(c) Any opinion provided under this section shall be in writing 
and made a part of the record. The Board shall notify a claimant that 
an advisory medical opinion has been requested under this section with 
respect to the claimant's case and shall mail to the claimant and the 
claimant's authorized representative (if any) at the last known address 
of the claimant and at the last known address of such representative 
(if any) a copy of such opinion when the Board receives it. An 
opportunity for response by or on behalf of the claimant shall be 
provided following the mailing of the copy (or copies) of such advisory 
medical opinion.''.

SEC. 8. HEARINGS.

    Section 7110 is amended to read as follows:
``Sec. 7110. Hearings
    ``(a) The Board shall decide any appeal only after affording the 
appellant an opportunity for a hearing.
    ``(b) A hearing docket shall be maintained and formal recorded 
hearings shall be held by such member or members of the Board as the 
Chairman may designate. Such member or members designated by the 
Chairman to conduct the hearing will participate in making the final 
determination in the claim.
    ``(c) An appellant may request a hearing before the Board at either 
its principal location or a regional 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 hearing in that area 
are received by the Department at the place specified by the Department 
for the filing of requests for such hearings.
    ``(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 an appellant located at a facility within the 
area served by a regional office to participate, through voice 
transmission, or picture and voice transmission, by electronic or other 
means, in a hearing with a Board member or members sitting at the 
Board's principal location. When such facilities and equipment are 
available, the Chairman may, at his or her discretion, afford the 
appellant an opportunity to participate in a hearing before the Board 
through the use of such facilities and equipment in lieu of a hearing 
held by personally appearing before a Board member or members as 
provided in subsection (c).''.

SEC. 9. TABLE OF CONTENTS.

    The table of contents at the beginning of chapter 71 is amended 
by--
            (1) striking ``7102. Assignment of members of Board.'' and 
        inserting in lieu thereof ``7102. Assignment of appellate 
        matters.'';
            (2) striking ``7109. Independent medical opinions.'' and 
        inserting in lieu thereof ``7109. Medical opinions.''; and
            (3) striking ``7110. Traveling sections.'' and inserting in 
        lieu thereof ``7110. Hearings.''.

SEC. 10. EFFECTIVE DATES OF AWARDS BASED ON DIFFERENCE OF OPINION.

    Section 5110 is amended by adding at the end the following new 
subsection:
    ``(o) The effective date of the award of any benefit, or any 
increase therein, pursuant to section 7103(d) of this title on the 
basis of a difference of opinion shall be--
            ``(1) if the award resulted from review initiated by an 
        application to reopen the claim for the benefit in question 
        under the provisions of section 5108 of this title, fixed in 
        accordance with the facts found but shall not be earlier than 
        the date the Department of Veterans Affairs received such 
        application; or
            ``(2) if the award resulted from review of the final 
        determination undertaken by the Department of Veterans Affairs 
        solely on its own initiative, the date the Chairman or Vice 
        Chairman of the Board of Veterans' Appeals approved the 
        award.''.

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