[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5083 Introduced in House (IH)]

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114th CONGRESS
  2d Session
                                H. R. 5083

 To amend title 38, United States Code, to improve the appeals process 
                 of the Department of Veterans Affairs.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 27, 2016

  Ms. Titus introduced the following bill; which was referred to the 
                     Committee on Veterans' Affairs

_______________________________________________________________________

                                 A BILL


 
 To amend title 38, United States Code, to improve the appeals process 
                 of 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.

    This Act may be cited as the ``VA Appeals Modernization Act of 
2016''.

SEC. 2. APPEALS REFORM.

    (a) 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) 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) Section 5103A(f) of title 38, United States Code, is amended to 
read as follows:
    ``(a) 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) Chapter 51 of title 38, United States Code, is amended by 
adding the following new sections:
``Sec. 5103B. Applicability of duty to assist
    ``(a) 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 Agency of Original Jurisdiction's 
decision with respect to such claim, or supplemental claim, under 
section 5104 of this title.
    ``(b) 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) Higher-level review.--If, during review of the Agency 
        of Original Jurisdiction's decision 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 under section 5103A of this title, and that error 
        occurred prior to the Agency of Original Jurisdiction's 
        decision being reviewed, unless the claim can be granted in 
        full, the higher-level reviewer shall return the claim for 
        correction of such error and readjudication.
            ``(2) Board of veterans' appeals.--If the Board, during 
        review on appeal of an 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 Agency of 
        Original Jurisdiction decision on appeal, unless the claim can 
        be granted in full, the Board shall remand the claim to the 
        Agency of Original Jurisdiction for correction of such error 
        and readjudication. 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.
``Sec. 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.
``Sec. 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 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 Agency of Original Jurisdiction's decision. 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 Agency of Original Jurisdiction's decision being reviewed.
    ``(e) De Novo Review.--Higher-level review under this section shall 
be de novo.''.
    (e) 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) Section 5108 of title 38, United States Code, is amended to 
read as follows:
``Sec. 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) 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 Agency of 
Original Jurisdiction's decision 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) Section 5110 of title 38, United States Code, is amended--
            (1) by amending subsection (a) to read as follows:
    ``(a)(1) In General.--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) Effect of Continuous Pursuit of a Claim on Effective Date of 
Award.--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; or
            ``(D) a supplemental claim under section 5108 of this title 
        within one year of a decision of the Board of Veterans' 
        Appeals.
    ``(3) Supplemental Claims Received More Than One Year After an 
Agency of Original Jurisdiction Decision or Decision by the Board of 
Veterans' Appeals.--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 replacing it with 
                ``readjudicated'';
                    (B) striking ``material'' and replacing it with 
                ``relevant''; and
                    (C) striking ``reopening'' and replacing it with 
                ``readjudication''.
    (i) Section 5111(d)(1) of title 38, United States Code, is amended 
by striking ``or reopened award;'' and replacing it with ``award or 
award based on a supplemental claim;''.
    (j) Section 5904 of title 38, United States Code, is amended--
            (1) in subsection (c)(1) by striking ``notice of 
        disagreement is filed'' and replacing it with ``claimant is 
        provided notice of the Agency of Original Jurisdiction's 
        initial decision under section 5104 of this title''; and
            (2) in subsection (c)(2) by striking ``notice of 
        disagreement is filed'' and replacing it with ``claimant is 
        provided notice of the Agency of Original Jurisdiction's 
        initial decision under section 5104 of this title''.
    (k) Section 7103 of title 38, United States Code, is amended--
            (1) in subsection (b)(1)(A) by striking ``heard'' and 
        replacing it with ``decided''; and
            (2) in subsection (b)(1)(B) by striking ``heard'' and 
        replacing it with ``decided''.
    (l) Section 7104(b) of title 38, United States Code, is amended by 
striking ``reopened'' and replacing it with ``readjudicated''.
    (m) Section 7105 of title 38, United States Code, is amended--
            (1) in subsection (a)--
                    (A) by striking the first sentence and replacing it 
                with ``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 Agency of Original Jurisdiction's decision 
under section 5104, 5104B, or 5108. 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 Agency of Original 
Jurisdiction's action or decision shall become final and the claim will 
not thereafter be readjudicated or allowed, except as may otherwise be 
provided by section 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) Section 7105A(b) of title 38, United States Code, is amended to 
read as follows:
    ``(b) The substance of the notice of disagreement will be 
communicated to the other party or parties in interest and a period of 
thirty days will 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) Strike section 7106 of title 38, United States Code.
    (p) 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) Advancement on the Docket.--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) Manner and Scheduling of Hearings for Cases on Board Hearing 
Option Docket.--(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) Strike section 7109 of title 38, United States Code.
    (r) 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 replacing it with 
``merits.''.
    (s) Chapter 71 of title 38, United States Code, is amended by 
adding the following new section:
``Sec. 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) Hearing Requested.--Except as 
provided in paragraph (2) of this subsection, 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) Exceptions.--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) Hearing Not Requested.--(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) 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.''.
            (2) The item relating to section 5108 in the table of 
        sections at the beginning of chapter 51 of title 38, United 
        States Code, is amended by striking ``Reopening disallowed 
        claims.'' and replacing it with ``Supplemental claims.''.
            (3) The table of sections at the beginning of chapter 71 of 
        title 38, United States Code, is amended by--
                    (A) striking the item relating to section 7106;
                    (B) striking the item relating to section 7109; and
                    (C) adding at the end the following new item:

``7113. The evidentiary record before the Board.''.
            (4) The item relating to section 7105 in the table of 
        sections at the beginning of chapter 71 of title 38, United 
        States Code, is amended by striking ``notice of disagreement 
        and''.
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