[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 2079 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 2079

   To amend title 38, United States Code, to facilitate and enhance 
 judicial review of certain matters regarding veterans' benefits, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 9, 2002

Mr. Rockefeller 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 facilitate and enhance 
 judicial review of certain matters regarding veterans' benefits, and 
                          for other purposes.

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

SECTION 1. JUDICIAL REVIEW OF ADOPTION OR REVISION OF SCHEDULE OF 
              RATINGS FOR DISABILITIES.

    (a) Restatement of Current Authority With Authority for Review.--
The text of section 502 of title 38, United States Code, is amended to 
read as follows:
    ``(a) An action of the Secretary to which section 552(a)(1) or 553 
of title 5, or both, refers is subject to judicial review.
    ``(b)(1) Except as provided in paragraph (2), review under 
subsection (a) shall be in accordance with chapter 7 of title 5, and 
may be sought only in the United States Court of Appeals for the 
Federal Circuit.
    ``(2) If review under subsection (a) is sought in connection with 
an appeal brought under the provisions of chapter 72 of this title, the 
provisions of that chapter shall apply rather than the provisions of 
chapter 7 of title 5.
    ``(c) In reviewing under subsection (b)(1) an action relating to 
the adoption or revision of the schedule of ratings for disabilities 
adopted under section 1155 of this title, the United States Court of 
Appeals for the Federal Circuit shall hold unlawful and set aside the 
action if the action is found by the Court to be--
            ``(1) arbitrary, capricious, an abuse of discretion, or 
        otherwise not in accordance with law; or
            ``(2) in excess of statutory jurisdiction, authority, or 
        limitations, or in violation of statutory right.''.
    (b) Applicability.--The amendment made by subsection (a) shall take 
effect on the date of the enactment of this Act. The review described 
by subsection (c) of section 502 of title 38, United States Code, as so 
amended, shall be available only for a revision of the schedule of 
ratings of disabilities under section 1155 of that title that occurs on 
or after that date.

SEC. 2. STANDARD OF REVERSAL BY COURT OF APPEALS FOR VETERANS CLAIMS OF 
              ERRONEOUS FINDING OF FACT BY BOARD OF VETERANS' APPEALS.

    (a) Standard of Reversal.--Paragraph (4) of subsection (a) of 
section 7261 of title 38, United States Code, is amended by striking 
``if the finding is clearly erroneous'' and inserting ``if such finding 
is not reasonably supported by a preponderance of the evidence''.
    (b) Scope of Authority.--That subsection is further amended--
            (1) in the matter preceding paragraph (1), by striking 
        ``this chapter'' and inserting ``section 7252(a) of this 
        title''; and
            (2) in paragraph (4), as amended by subsection (a) of this 
        section--
                    (A) by inserting ``adverse to the claimant that 
                is'' after ``material fact''; and
                    (B) by inserting ``or reverse'' after ``set 
                aside''.
    (c) Matters Relating to Findings of Material Fact.--That section is 
further amended--
            (1) by redesignating subsections (b), (c), and (d), as 
        subsections (c), (d), and (e), respectively; and
            (2) by inserting after subsection (a) the following new 
        subsection (b):
    ``(b)(1) In making a determination on a finding of material fact 
under subsection (a)(4), the Court shall utilize the record of 
proceedings containing such finding, as established for purposes of 
sections 5107(b) and 7252(c) of this title.
    ``(2) A determination on a finding of material fact under 
subsection (a)(4) shall specify the evidence or material on which the 
Court relied in making such determination.''.
    (d) Applicability.--(1) Except as provided in paragraph (2), the 
amendments made by this section shall take effect on the date of the 
enactment of this Act.
    (2) The amendments made by subsections (a) and (b)(2) shall apply 
with respect to any appeal filed with the United States Court of 
Appeals for Veterans Claims--
            (A) on or after the date of the enactment of this Act; or
            (B) before the date of the enactment of this Act, but in 
        which a final decision has not been made under section 7291 of 
        title 38, United States Code, as of that date.

SEC. 3. REVIEW BY COURT OF APPEALS FOR THE FEDERAL CIRCUIT OF DECISIONS 
              OF LAW OF COURT OF APPEALS OF VETERANS CLAIMS.

    (a) Review.--Section 7292(c) of title 38, United States Code, is 
amended in the first sentence by inserting after ``the validity of'' 
the following: ``a decision of the Court of Veterans Appeals on a rule 
of law or of''.
    (b) Applicability.--The amendment made by subsection (a) shall take 
effect on the date of the enactment of this Act, and shall apply with 
respect to any appeal--
            (1) filed with the United States Court of Appeals for the 
        Federal Circuit on or after the date of the enactment of this 
        Act; or
            (2) pending with the United States Court of Appeals for the 
        Federal Circuit as of the date of the enactment of this Act in 
        which a final decision has not been rendered as of that date.

SEC. 4. AUTHORITY OF COURT OF APPEALS FOR VETERANS CLAIMS TO AWARD FEES 
              UNDER EQUAL ACCESS TO JUSTICE ACT FOR NON-ATTORNEY 
              PRACTITIONERS.

    The authority of the United States Court of Appeals for Veterans 
Claims to award reasonable fees and expenses of attorneys under section 
2412(b) of title 28, United States Code, shall include authority to 
award fees and expenses of individuals admitted to practice before the 
Court as non-attorney practitioners under subsection (b) or (c) of Rule 
46 of the Rules of Practice and Procedure of the United States Court of 
Appeals for Veterans Claims as if such non-attorney practitioners were 
attorneys admitted to practice before the Court.
                                 <all>