[Congressional Record Volume 149, Number 96 (Thursday, June 26, 2003)]
[Senate]
[Pages S8756-S8757]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. GRAHAM of Florida:
  S. 1360. A bill to amend section 7105 of title 38, United States 
Code, to clarify the requirements for notices of disagreement for 
appellate review of Department of Veterans Affairs activities; to the 
Committee on Veterans' Affairs.
  Mr. GRAHAM of Florida. Mr. President, I rise today to introduce 
legislation that will remove a significant and arbitrary barrier to 
appellate review of veterans' benefits claims. In 1988, when Congress 
created judicial review for veterans' claims it intended to provide 
``an opportunity for those aggrieved by VA decisions to have such 
decisions reviewed by a court'' and found such review ``necessary in 
order to provide such claimants with fundamental justice.''
  A veteran or survivor of a veteran seeking VA benefits must file a 
claim for such benefits, generally at a VA Regional Office. If the VA 
denies the claim for benefits, the claimant must file a ``Notice of 
Disagreement,'' or NOD, as defined in section 7105 of title 38 of the 
United States Code. This NOD initiates appellate review by the agency 
and begins a series of events where VA communicates the basis of the 
denial to the claimant and allows various levels of review of this 
denial at the regional office. If the claimant still disagrees with the 
VA decision, the claimant may file a ``Substantive Appeal'' that vests 
jurisdiction of the claim with the Board of Veterans' Appeals, the 
appellate arm of VA.
  Section 7105 defines what is required of a valid NOD. It must be 
filed within 1 year from the notice of the initial denial, in writing, 
and filed with the regional office that issued the decision over which 
there is disagreement. The NOD may be filed by the claimant or the 
claimant's guardian or representative.
  VA has promulgated regulations to implement section 7105. In Section 
20.201 or title 38 of the Code of Federal Regulations, the Secretary 
defined a NOD to not require special wording. The regulation does 
require that the NOD ``must be in terms which can be reasonably 
construed as disagreement with the determination and a desire for 
appellate review.'' The second component of that sentence--``a desire 
for appellate review''--is not required under the statute.
  In 1997, Raymond Gallegos, a veteran, again filed an application for 
service connection for post-traumatic stress disorder that had been 
previously denied. The VA regional office granted his claim. However, 
Mr. Gallegos believed the effective date assigned to his claim was 
wrong and filed what was then thought to be a NOD. He appealed this 
issue to the Board, which reasoned that the letter expressing his 
disagreement was not a valid NOD because it did not express his desire 
for appellate review. Mr. Gallegos appealed the Board's determination 
to the United States Court of Appeals for Veterans Claims, or the CAVC.
  In 2000, the CAVC determined in Gallegos v. Gober that the VA 
regulation was invalid because it required more of the claimant than 
Congress required in statute. Last year, in Gallegos v. Principi, the 
United States Court of Appeals for the Federal Circuit reversed the 
CAVC and upheld the VA regulation, finding that the agency 
interpretation was entitled to deference because Congressional intent 
was not clear in limiting the requirements of a NOD to those in section 
7105.
  Congress never intended to require that level of formality from 
veterans, in this uniquely pro-claimant system. Therefore, I offer 
legislation that would specify that if a claimant's filing meets the 
criteria defined in section 7105 of title 38 of the United States Code, 
the document will be deemed a Notice of Disagreements with all the 
rights and procedures that accompany that determination. It will also 
ensure that claimants whose NODs were found to be defective since the 
court decision will have the opportunity to have their NOD reevaluated 
under this new provision.
  This is very significant because there are two key consequences of 
not having a valid, timely NOD. First, if a claimant fails to file a 
timely, valid NOD, the VA denial becomes final. The claimant will need 
to submit ``new and material evidence'' that VA erred in order to 
reopen the case. If successful, the claimant will only be able to 
receive benefits dating to the beginning of the newly reopened claim, 
potentially losing years of retroactive benefits. This may affect a 
veteran's ability to receive VA health care, a dependent's ability to 
use educational benefits, and all the other benefits that flow from a 
finding of service-connection.
  Second, if a claimant has not been deemed to file a NOD, there can be 
no appeal of the VA decision. A NOD is required to initiate an appeal. 
It is a prerequisite to review by the Board of Veterans' Appeals and 
ultimately judicial review at the CAVC. This contravenes Congress's 
intent to remove arbitrary barriers to judicial review as it did in 
Public Law 107-103.
  We face the tragic fact that in 2002, America lost 646,264 veterans. 
The many aging veterans who still await justice cannot afford this 
debate. I ask my colleagues to support this critical measure and 
restore this fundamental justice to our veterans.
  I ask unanimous consent that the text of this bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1360

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

     SECTION 1. CLARIFICATION OF NOTICE OF DISAGREEMENT FOR 
                   APPELLATE REVIEW OF DEPARTMENT OF VETERANS 
                   AFFAIRS ACTIVITIES.

       (a) Clarification.--Section 7105(b) of title 38, United 
     States Code, is amended by adding at the end the following 
     new paragraph:

[[Page S8757]]

       ``(3) A document that meets the requirements of the second 
     sentence of paragraph (1) and the first sentence of paragraph 
     (2) shall be recognized as a notice of disagreement for 
     purposes of this section.''.
       (b) Effective Date.--(1) Except as specifically provided 
     otherwise, paragraph (3) of section 7105(b) of title 38, 
     United States Code (as added by subsection (a) of this 
     section), shall apply to any document--
       (A) filed under section 7105 of such title on or after the 
     date of the enactment of this Act; or
       (B) filed under section 7105 of such title before the date 
     of the enactment of this Act and not rejected by the 
     Secretary of Veterans Affairs as a notice of disagreement 
     pursuant to section 20.201 of title 38, Code of Federal 
     Regulations, as of that date.
       (2) In the case of a document described in paragraph (3) of 
     this subsection, the Secretary shall, upon the request of the 
     claimant or the Secretary's own motion, order the document 
     treated as a notice of disagreement under section 7105 of 
     such title as if the document had not been rejected by the 
     Secretary as a notice of disagreement pursuant to section 
     20.201 of title 38, Code of Federal Regulations.
       (3) A document described in this paragraph is a document 
     that--
       (A) was filed as a notice of disagreement under section 
     7105 of such title during the period beginning on March 15, 
     2002, and ending on the date of the enactment of this Act; 
     and
       (B) was rejected by the Secretary as a notice of 
     disagreement pursuant to section 20.201 of title 38, Code of 
     Federal Regulations.
       (4) A document may not be treated as a notice of 
     disagreement under paragraph (2) unless a request for such 
     treatment is filed by the claimant, or a motion is made by 
     the Secretary, not later than one year after the date of the 
     enactment of this Act.
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