[Congressional Record Volume 156, Number 71 (Wednesday, May 12, 2010)]
[Senate]
[Page S3646]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. AKAKA:
  S. 3348. A bill to amend title 38, United States Code, to provide for 
the treatment of documents that express disagreement with decisions of 
the Board of Veterans' Appeals and that are misfiled with the Board 
within 120 days of such decisions as motions for reconsideration of 
such decisions, and for other purposes; to the Committee on Veterans' 
Affairs.
  Mr. AKAKA. Mr. President, as Chairman of the Senate Committee on 
Veterans' Affairs, I am introducing legislation today to protect the 
rights of appeal by claimants before the United States Court of Appeals 
for Veterans Claims when claimants erroneously file a document with the 
Department of Veterans Affairs and the document is not transmitted to 
the court in a timely fashion.
  Under current law, section 7266 of title 38, United States Code, a 
veteran or other claimant who seeks to have a decision of the Board of 
Veterans' Appeals reviewed by the U.S. Court of Appeals for Veterans 
Claims must ``file a notice of appeal with the court within 120 days 
after the date'' on which the board mails its decision to the veteran 
or other claimant.
  This measure would respond to a problem identified in a recent 
decision of the court in the case of Posey v. Shinseki, decided April 
23, 2010. In that case, a veteran sent a document purporting to be an 
appeal to the court to a VA regional office. The document was not 
forwarded to the court within the 120 day period. VA sought to have the 
appeal dismissed as untimely filed. However, the court found that the 
document qualified as a motion for reconsideration by the board.
  Judge Lawrence B. Hagel authored a concurring opinion in which he 
expressed concern with the number of cases in which a claimant's right 
to appeal to the court had been thwarted because the Secretary had held 
correspondence from veterans seeking to appeal to the court until after 
the time for filing had expired. The Secretary would then argue that 
the claimant's appeal to the court was untimely and should be 
dismissed. Some of those cases resulted in dismissal of the appeal. 
Judge Hagel suggested that this problem could be addressed by 
legislation treating a document as a motion for reconsideration by the 
Board if it was received by the Secretary and not forwarded to the 
Court within the 120 day period.
  I do not believe that VA has acted deliberately to impede any 
veteran's right to appeal to the court. However, the failure of VA to 
notify a veteran promptly of the filing error or to forward the 
document to the court should not be allowed to deprive a veteran of the 
right to have a case reviewed on appeal. The bill I am introducing 
would only apply in those cases where no appeal is filed with the court 
within the 120-day time period and the board or other VA agency has 
received during that same 120-day period a document expressing 
disagreement with the board decision.
  I urge our colleagues to support this bill so that any veteran who 
attempts to appeal a decision of the Board in a timely fashion does not 
have his or her attempt thwarted by an error.
  Mr. Presiodent, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3348

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

     SECTION 1. TREATMENT OF CERTAIN MISFILED DOCUMENTS AS MOTIONS 
                   FOR RECONSIDERATION OF DECISIONS BY BOARD OF 
                   VETERANS' APPEALS.

       Section 7103 of title 38, United States Code, is amended--
       (1) by redesignating subsection (c) as subsection (d); and
       (2) by inserting after subsection (b) the following new 
     subsection (c):
       ``(c)(1) Except as provided in paragraph (2), if a person 
     adversely affected by a final decision of the Board, who has 
     not filed a notice of appeal with the United States Court of 
     Appeals for Veterans Claims under section 7266(a) of this 
     title within the period set forth in that section, files a 
     document with the Board or the agency of original 
     jurisdiction referred to in section 7105(b)(1) of this title 
     that expresses disagreement with such decision not later than 
     120 days after the date of such decision, such document shall 
     be treated as a motion for reconsideration of such decision 
     under subsection (a).
       ``(2) A document described in paragraph (1) shall not be 
     treated as a motion for reconsideration of the decision under 
     paragraph (1) if--
       ``(A) the Board or the agency of original jurisdiction 
     referred to in paragraph (1)--
       ``(i) receives the document described in paragraph (1);
       ``(ii) determines that such document expresses an intent to 
     appeal the decision to the United States Court of Appeals for 
     Veterans Claims; and
       ``(iii) forwards such document to the United States Court 
     of Appeals for Veterans Claims; and
       ``(B) the United States Court of Appeals for Veterans 
     Claims receives such document within the period set forth by 
     section 7266(a) of this title.''.

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