[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3328 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  2d Session
                                S. 3328

    To amend title 38, United States Code, to reform the rights and 
    processes relating to appeals of decisions regarding claims for 
   benefits under the laws administered by the Secretary of Veterans 
                    Affairs, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 14, 2016

   Mr. Blumenthal (for himself, Mr. Tester, Mr. King, Mr. Udall, Ms. 
 Baldwin, Mr. Casey, Ms. Hirono, Mr. Manchin, Mr. Leahy, Mrs. Murray, 
 Mr. Brown, and Mr. Sanders) 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 reform the rights and 
    processes relating to appeals of decisions regarding claims for 
   benefits under the laws administered by the Secretary of Veterans 
                    Affairs, 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. SHORT TITLE.

    This Act may be cited as the ``Department of Veterans Affairs 
Appeals Modernization Act of 2016''.

SEC. 2. REFORM OF RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS 
              REGARDING CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY 
              SECRETARY OF VETERANS AFFAIRS.

    (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 laws administered by the 
        Secretary.
            ``(35) The term `relevant evidence' means evidence that 
        tends to prove or disprove a matter in issue.''.
    (b) Notice Regarding Claims.--Section 5103(a) of such title is 
amended--
            (1) in paragraph (1), in the first sentence, by striking 
        ``The'' and inserting ``Except as provided in paragraph (3), 
        the'';
            (2) in paragraph (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
            (3) by adding at the end the following new paragraph:
    ``(3) The requirement to provide notice under paragraph (1) shall 
not apply with respect to a supplemental claim that is filed within the 
timeframe set forth in subparagraphs (B) and (D) of section 5110(a)(2) 
of this title.''.
    (c) Modification of Rule Regarding Disallowed Claims.--Section 
5103A(f) of such title is amended--
            (1) by striking ``reopen'' and inserting ``readjudicate''; 
        and
            (2) by striking ``material'' and inserting ``relevant''.
    (d) Modification of Duty To Assist Claimants.--Section 5103A of 
such title is amended--
            (1) by redesignating subsections (e) through (g) as 
        subsections (g) through (i), respectively; and
            (2) by inserting after subsection (d) the following new 
        subsections:
    ``(e) Applicability of Duty To Assist.--(1) The Secretary's duty to 
assist under this section 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.
    ``(2) The Secretary's duty to assist under this section 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.
    ``(f) Correction of Duty To Assist Errors.--(1) If, during review 
of the agency of original jurisdiction 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 this 
section, and that error occurred prior to the agency of original 
jurisdiction 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)(A) If the Board of Veterans' Appeals, 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 this section, 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.
    ``(B) 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.''.
    (e) Decisions and Notices of Decisions.--Subsection (b) of section 
5104 of such title 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 all of the 
following:
            ``(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.
            ``(7) If applicable, identification of the criteria that 
        must be satisfied to grant service connection or the next 
        higher level of compensation.''.
    (f) Binding Nature of Favorable Findings.--
            (1) In general.--Chapter 51 of such title is amended 
        inserting after section 5104 the following new section:
``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.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 51 of such title is amended by inserting 
        after the item relating to section 5104 the following new item:

``5104A. Binding nature of favorable findings.''.
    (g) Higher-Level Review by Agency of Original Jurisdiction.--
            (1) In general.--Chapter 51 of such title, as amended by 
        subsection (f), is further amended by inserting after section 
        5104A, as added by such subsection, the following new section:
``Sec. 5104B. Higher-level review by the agency of original 
              jurisdiction
    ``(a) In General.--A 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.--(1) A request for higher-level 
review by the agency of original jurisdiction shall be--
            ``(A) in writing in such form as the Secretary may 
        prescribe; and
            ``(B) made within one year of the notice of the agency of 
        original jurisdiction's decision.
    ``(2) 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 decision being reviewed.
    ``(e) De Novo Review.--A review of the decision of the agency of 
original jurisdiction by a higher-level adjudicator within the agency 
of original jurisdiction shall be de novo.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 51 of such title, as amended by subsection 
        (f), is further amended by inserting after the item relating to 
        section 5104A, as added by such subsection, the following new 
        item:

``5104B. Higher-level review by the agency of original jurisdiction.''.
    (h) Options Following Decision by Agency of Original 
Jurisdiction.--
            (1) In general.--Chapter 51 of such title, as amended by 
        subsection (g), is further amended by inserting after section 
        5104B, as added by such subsection, the following new section:
``Sec. 5104C. Options following decision by agency of original 
              jurisdiction
    ``(a) Within One Year of Decision.--(1) Subject to paragraph (2), 
in any case in which the Secretary denies a claim, the claimant may 
take any of the following actions on or before the date that is one 
year after the date on which the agency of original jurisdiction issues 
a decision with respect to that claim:
            ``(A) File a request for higher-level review under section 
        5104B of this title.
            ``(B) File a supplemental claim under section 5108 of this 
        title.
            ``(C) File a notice of disagreement under section 7105 of 
        this title.
    ``(2)(A) Once a claimant takes an action set forth in paragraph 
(1), the claimant may not take another action set forth in that 
paragraph with respect to such claim until--
            ``(i) the higher-level review, supplemental claim, or 
        appeal in connection with the notice of disagreement is 
        adjudicated; or
            ``(ii) the request for higher-level review, supplemental 
        claim, or notice of disagreement is withdrawn.
    ``(B) Nothing in this subsection shall prohibit a claimant from 
taking any of the actions set forth in paragraph (1) in succession with 
respect to a claim.
    ``(C) Nothing in this subsection shall prohibit a claimant from 
taking different actions set forth in paragraph (1) with respect to 
different claims.
    ``(b) More Than One Year After Decision.--In any case in which the 
Secretary denies a claim and more than one year has passed since the 
date on which the agency of original jurisdiction issues a decision 
with respect to that claim, the claimant may file a supplemental claim 
under section 5108 of this title.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 51 of such title, as amended by subsection 
        (g), is further amended by inserting after the item relating to 
        section 5104B, as added by such subsection, the following new 
        item:

``5104C. Options following decision by agency of original 
                            jurisdiction.''.
    (i) Supplemental Claims.--
            (1) In general.--Section 5108 of such title 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.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 51 of such title is amended by striking 
        the item relating to section 5108 and inserting the following 
        new item:

``5108. Supplemental claims.''.
    (j) Remand To Obtain Advisory Medical Opinion.--Section 5109 of 
such title is amended by adding at the end the following new 
subsection:
    ``(d)(1) 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 decision on appeal.
    ``(2) The Board's remand instructions shall include the questions 
to be posed to the independent medical expert providing the advisory 
medical opinion.''.
    (k) Restatement of Requirement for Expedited Treatment of Remanded 
Claims.--Section 5109B of such title is amended to read as follows:
``Sec. 5109B. Expedited treatment of remanded claims
    ``The Secretary shall take such actions as may be necessary to 
provide for the expeditious treatment by the agency of original 
jurisdiction of any claim that is remanded by the Board of Veterans' 
Appeals.''.
    (l) Effective Dates of Awards.--Section 5110 of title 38, United 
States Code, is amended--
            (1) by amending subsection (a) to read as follows:
    ``(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 determining the effective date of an award 
under this section, the date of application shall be considered the 
date of the filing of the initial application for a benefit if 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 on or before the date that is one year after the 
        date on which the agency of original jurisdiction issues a 
        decision.
            ``(B) A supplemental claim under section 5108 of this title 
        on or before the date that is one year after the date on which 
        the agency of original jurisdiction issues a decision.
            ``(C) A notice of disagreement on or before the date that 
        is one year after the date on which the agency of original 
        jurisdiction issues a decision.
            ``(D) A supplemental claim under section 5108 of this title 
        on or before the date that is one year after the date on which 
        the Board of Veterans' Appeals issues a decision.
    ``(3) Except as otherwise provided in this section, for 
supplemental claims received more than one year after the date on which 
the agency of original jurisdiction issued a decision or the Board of 
Veterans' Appeals issued a decision, 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), in the first sentence--
                    (A) by striking ``reopened'' and inserting 
                ``readjudicated'';
                    (B) by striking ``material'' and inserting 
                ``relevant''; and
                    (C) by striking ``reopening'' and inserting 
                ``readjudication''.
    (m) Definition of Award or Increased Award for Purposes of 
Provisions Relating to Commencement of Period of Payment.--Section 
5111(d)(1) of such title is amended by striking ``or reopened award'' 
and inserting ``award or award based on a supplemental claim''.
    (n) Modification on Limitation on Fees Allowable for 
Representation.--Section 5904(c) of such title is amended, in 
paragraphs (1) and (2), by striking ``notice of disagreement is filed'' 
both places it appears and inserting ``claimant is provided notice of 
the agency of original jurisdiction's initial decision under section 
5104 of this title''.
    (o) Clarification of Board of Veterans' Appeals Referral 
Requirements After Order for Reconsideration of Decisions.--Section 
7103(b)(1) of title 38, United States Code, is amended by striking 
``heard'' both places it appears and inserting ``decided''.
    (p) Conforming Amendment Relating to Readjudication.--Section 
7104(b) of such title is amended by striking ``reopened'' and inserting 
``readjudicated''.
    (q) Modification of Procedures for Appeals to Board of Veterans' 
Appeals.--
            (1) In general.--Section 7105 of title 38, United States 
        Code, is amended--
                    (A) in subsection (a)--
                            (i) by striking the first sentence and 
                        inserting ``Appellate review shall be initiated 
                        by the filing of a notice of disagreement in 
                        the form prescribed by the Secretary.''; and
                            (ii) by striking ``hearing and'';
                    (B) by amending subsection (b) to read as follows:
    ``(b)(1)(A) 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 pursuant to section 5104, 5104B, or 5108 of this title.
    ``(B) A notice of disagreement postmarked before the expiration of 
the 1-year period shall be accepted as timely filed.
    ``(C) A question as to timeliness or adequacy of the notice of 
disagreement shall be decided by the Board.
    ``(2)(A) Notices of disagreement shall be in writing, shall 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.
    ``(B) Not more than one recognized organization, attorney, or agent 
may be recognized at any one time in the prosecution of a claim.
    ``(C) Notices of disagreement shall be filed with the Board.
    ``(3)(A) The notice of disagreement shall indicate whether the 
claimant requests--
            ``(i) a hearing before the Board;
            ``(ii) an opportunity to submit additional evidence without 
        a hearing before the Board; or
            ``(iii) a review by the Board without a hearing or 
        submission of additional evidence.
    ``(B) If the claimant does not expressly request a hearing before 
the Board in the notice of disagreement, no hearing before the Board 
shall be held.'';
                    (C) 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 shall 
not thereafter be readjudicated or allowed, except as may otherwise be 
provided by section 5104B or 5108 of this title or such regulations as 
are consistent with this title.'';
                    (D) by striking subsection (d) and inserting the 
                following new subsection (d):
    ``(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.'';
                    (E) by striking subsection (e); and
                    (F) in the section heading, by striking ``notice of 
                disagreement and''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 71 of such title is amended by striking 
        the item relating to section 7105 and inserting the following 
        new item:

``7105. Filing of appeal.''.
    (r) Modification of Procedures and Requirements for Simultaneously 
Contested Claims.--Subsection (b) of section 7105A of such title is 
amended to read as follows:
    ``(b)(1) The substance of the notice of disagreement shall be 
communicated to the other party or parties in interest and a period of 
thirty days shall be allowed for filing a brief or argument in response 
thereto.
    ``(2) 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.''.
    (s) Repeal of Procedures for Administrative Appeals.--
            (1) In general.--Chapter 71 of such title is amended by 
        striking section 7106.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 71 of such title is amended by striking 
        the item relating to section 7106.
    (t) Modifications Relating to Appeals: Dockets; Hearings.--Section 
7107 of such title is amended to read as follows:
``Sec. 7107. Appeals: dockets; hearings
    ``(a) Dockets.--(1) The Board shall maintain two separate dockets 
as follows:
            ``(A) A non-hearing option docket shall be maintained for 
        cases in which no Board hearing is requested and no additional 
        evidence will be submitted.
            ``(B) 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.
    ``(2) 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.
    ``(b) Advancement on the Docket.--(1) 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.
    ``(2) Any such motion shall set forth succinctly the grounds upon 
which the motion is based.
    ``(3) Such a motion may be granted only--
            ``(A) if the case involves interpretation of law of general 
        application affecting other claims;
            ``(B) if the appellant is seriously ill or is under severe 
        financial hardship; or
            ``(C) for other sufficient cause shown.
    ``(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 subparagraph (A) of paragraph (1), 
the appellant may alternatively request a hearing as described in 
subparagraph (B) of such paragraph. If so requested, the Board shall 
grant such request.
    ``(B) Upon notification of a Board hearing by picture and voice 
transmission as described in subparagraph (B) of paragraph (1), the 
appellant may alternatively request a hearing as described in 
subparagraph (A) of such paragraph. If so requested, the Board shall 
grant such request.
    ``(d) Screening of Cases.--Nothing in this section shall be 
construed to preclude the screening of cases for purposes of--
            ``(1) determining the adequacy of the record for decisional 
        purposes; or
            ``(2) the development, or attempted development, of a 
        record found to be inadequate for decisional purposes.''.
    (u) Repeal of Certain Authority for Independent Medical Opinions.--
            (1) In general.--Section 7109 of such title is hereby 
        repealed.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 71 of such title is amended by striking 
        the item relating to section 7109.
    (v) Clarification of Procedures for Review of Decisions on Grounds 
of Clear and Unmistakable Error.--Section 7111(e) of title 38, United 
States Code, is amended by striking ``, without referral to any 
adjudicative or hearing official acting on behalf of the Secretary''.
    (w) Evidentiary Record Before Board of Veterans' Appeals.--
            (1) In general.--Chapter 71 of title 38, United States 
        Code, is amended by adding at the end the following new 
        section:
``Sec. 7113. Evidentiary record before the Board of Veterans' Appeals
    ``(a) Non-Hearing Option Docket.--For cases in which a hearing 
before the Board of Veterans' Appeals 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 decision of the agency of 
original jurisdiction on appeal.
    ``(b) Hearing Option Docket.--(1)(A) Except as provided in 
subparagraph (B) of this paragraph, 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 decision of the agency of 
original jurisdiction on appeal.
    ``(B) 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:
            ``(i) Evidence submitted by the appellant and his or her 
        representative, if any, at the Board hearing.
            ``(ii) Evidence submitted by the appellant and his or her 
        representative, if any, within 90 days following the Board 
        hearing.
    ``(2)(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.
            ``(ii) Evidence submitted by the appellant and his or her 
        representative, if any, within 90 days following receipt of the 
        notice of disagreement.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of chapter 71 of such title is amended by inserting 
        after the item relating to section 7112 the following new item:

``7113. Evidentiary record before the Board of Veterans' Appeals.''.
    (x) Applicability.--The amendments made by this Act shall apply to 
all claims for which notice of a decision under section 5104 of title 
38, United States Code, is provided by the Secretary on or after the 
date that is 540 days after the date of the enactment of this Act.
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