[Congressional Record Volume 163, Number 130 (Tuesday, August 1, 2017)]
[Senate]
[Pages S4674-S4680]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 745. Mr. PORTMAN (for Mr. Isakson (for himself, Mr. Blumenthal,
Mr. Tester, Mrs. Murray, Mr. Heller, Ms. Hassan, Mr. Nelson, Mr. King,
Mr. Durbin, Mr. Udall, Mr. Heinrich, Mr. Donnelly, Mrs. McCaskill, and
Mr. Brown)) proposed an amendment to the bill H.R. 2288, 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; as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veterans Appeals Improvement
and Modernization Act of 2017''.
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.
``(36) The term `supplemental claim' means a claim for
benefits under laws administered by the Secretary filed by a
claimant who had previously filed a claim for the same or
similar benefits on the same or similar basis.''.
(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 adjudicator
identifies or learns of 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
[[Page S4675]]
jurisdiction decision being reviewed, unless the Secretary
may award the maximum benefit in accordance with this title
based on the evidence of record, the higher-level adjudicator
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 or learns of 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
Secretary may award the maximum benefit in accordance with
this title based on the evidence of record, 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.
``(3) Nothing in this subsection shall be construed to
imply that the Secretary, during the consideration of a
claim, does not have a duty to correct an error described in
paragraph (1) or (2) that was erroneously not identified
during higher-level review or during review on appeal with
respect to the claim.''.
(e) Decisions and Notices of Decisions.--Subsection (b) of
section 5104 of such title is amended to read as follows:
``(b) Each notice provided under 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) In the case of a denial, 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 by
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.--(1) 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.
``(2) The Secretary shall approve each request for review
under paragraph (1).
``(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. The Secretary shall not deny such request for
review by an adjudicator at a different office of the agency
of original jurisdiction without good cause.
``(c) Decision.--Notice of a higher-level review decision
under this section shall be provided in writing and shall
include a general statement--
``(1) reflecting whether evidence was not considered
pursuant to subsection (d); and
``(2) noting the options available to the claimant to have
the evidence described in paragraph (1), if any, considered
by the Department.
``(d) Evidentiary Record for Review.--The evidentiary
record before the higher-level adjudicator 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 renders a
decision on 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 the same claim or
same issue contained within the claim until--
``(i) the higher-level review, supplemental claim, or
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 or an issue contained
within the claim.
``(C) Nothing in this subsection shall prohibit a claimant
from taking different actions set forth in paragraph (1) with
respect to different claims or different issues contained
within a claim.
``(D) The Secretary may, as the Secretary considers
appropriate, develop and implement a policy for claimants
who--
``(i) take an action under paragraph (1);
``(ii) wish to withdraw the action before the higher-level
review, supplemental claim, or notice of disagreement is
adjudicated; and
``(iii) in lieu of such action take a different action
under paragraph (1).
``(b) More Than One Year After Decision.--In any case in
which the Secretary renders a decision on 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
``(a) In General.--If new and relevant evidence is
presented or secured with respect to a supplemental claim,
the Secretary shall readjudicate the claim taking into
consideration all of the evidence of record.
``(b) Duty to Assist.--(1) If a claimant, in connection
with a supplemental claim, reasonably identifies existing
records, whether or not in the custody of a Federal
department or agency, the Secretary shall assist the claimant
in obtaining the records in accordance with section 5103A of
this title.
``(2) Assistance under paragraph (1) shall not be
predicated upon a finding that new and relevant evidence has
been presented or secured.''.
(2) Rule of construction.--Section 5108 of such title, as
amended by paragraph (1), shall not be construed to impose a
higher evidentiary threshold than the new and material
evidence standard that was in effect pursuant to such section
on the day before the date of the enactment of this Act.
(3) 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 shall remand a
claim to direct the agency of original jurisdiction to obtain
an advisory medical opinion from an independent medical
expert under this section if the Board finds that the
Veterans Benefits Administration should have exercised its
discretion to obtain such an opinion.
``(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
Returned and Remanded Claims.--
(1) In general.--Section 5109B of such title is amended to
read as follows:
[[Page S4676]]
``Sec. 5109B. Expedited treatment of returned and remanded
claims
``The Secretary shall take such actions as may be necessary
to provide for the expeditious treatment by the Veterans
Benefits Administration of any claim that is returned by a
higher-level adjudicator under section 5104B of this title or
remanded by the Board of Veterans' Appeals.''.
(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 5109B and inserting the
following new item:
``5109B. Expedited treatment of returned and remanded claims.''.
(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.
``(E) A supplemental claim under section 5108 of this title
on or before the date that is one year after the date on
which the Court of Appeals for Veterans Claims 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 of 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), 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.'';
(B) by amending subsection (b) to read as follows:
``(b)(1)(A) Except in the case of simultaneously contested
claims, a 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 one-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
identify the specific determination with which the claimant
disagrees, 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) The notice of disagreement shall indicate whether the
claimant requests--
``(A) a hearing before the Board, which shall include an
opportunity to submit evidence in accordance with section
7113(b) of this title;
``(B) an opportunity to submit additional evidence without
a hearing before the Board, which shall include an
opportunity to submit evidence in accordance with section
7113(c) of this title; or
``(C) a review by the Board without a hearing or the
submittal of additional evidence.
``(4) The Secretary shall develop a policy to permit a
claimant to modify the information identified in the notice
of disagreement after the notice of disagreement has been
filed under this section pursuant to such requirements as the
Secretary may prescribe.'';
(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--
``(1) in the case of a readjudication or allowance pursuant
to a higher-level review that was requested in accordance
with section 5104B of this title;
``(2) as may otherwise be provided by section 5108 of this
title; or
``(3) as may otherwise be provided in such regulations as
are consistent with this title.'';
(D) by striking subsection (d) and inserting the following
new subsection (d):
``(d) The Board may dismiss any appeal which fails to
identify the specific determination with which the claimant
disagrees.'';
(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) Subject to paragraph (2), the Board
shall maintain at least two separate dockets.
``(2) The Board may not maintain more than two separate
dockets unless the Board notifies the Committee on Veterans'
Affairs of the Senate and the Committee on Veterans' Affairs
of the House of Representatives of any additional docket,
including a justification for maintaining such additional
docket.
``(3)(A) The Board may assign to each docket maintained
under paragraph (1) such cases as the Board considers
appropriate, except that cases described in clause (i) of
subparagraph (B) may not be assigned to any docket to which
cases described in clause (ii) of such paragraph are
assigned.
``(B) Cases described in this paragraph are the following:
``(i) Cases in which no Board hearing is requested.
``(ii) Cases in which a Board hearing is requested in the
notice of disagreement.
``(4) Except as provided in subsection (b), each case
before the Board will be decided in regular order according
to its respective place on the docket to which it is assigned
by the Board.
``(b) Advancement on the Docket.--(1) A case on one of the
dockets of the Board maintained under subsection (a) 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 a
Docket That May Include a Hearing.--(1) For cases on a docket
maintained by the Board under subsection (a)
[[Page S4677]]
that may include a hearing, 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.
``(e) Policy on Changing Dockets.--The Secretary shall
develop and implement a policy allowing an appellant to move
the appellant's case from one docket to another docket.''.
(u) Repeal of Certain Authority for Independent Medical
Opinions.--
(1) In general.--Section 7109 of such title is repealed.
(2) Conforming amendment.--Section 5701(b)(1) of such title
is amended by striking ``or 7109''.
(3) 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
such title 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 such title is amended by
adding at the end the following new section:
``Sec. 7113. Evidentiary record before the Board of Veterans'
Appeals
``(a) Cases With No Request for a Hearing or Additional
Evidence.--For cases in which a hearing before the Board of
Veterans' Appeals is not requested in the notice of
disagreement and no request was made to submit evidence, 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) Cases With a Request for a Hearing.--(1) Except as
provided in paragraph (2), for cases 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.
``(2) The evidentiary record before the Board for cases
described in paragraph (1) 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.
``(B) Evidence submitted by the appellant and his or her
representative, if any, within 90 days following the Board
hearing.
``(c) Cases With No Request for a Hearing and With a
Request for Additional Evidence.--(1) Except as provided in
paragraph (2), for cases in which a hearing is not requested
in the notice of disagreement but an opportunity to submit
evidence is requested, the evidentiary record before the
Board shall be limited to the evidence considered by the
agency of original jurisdiction in the decision on appeal.
``(2) The evidentiary record before the Board for cases
described in paragraph (1) 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, with the notice of disagreement.
``(B) Evidence submitted by the appellant and his or her
representative, if any, within 90 days following receipt of
the notice of disagreement.''.
(2) Notification when evidence not considered.--Section
7104(d) of such title is amended--
(A) in paragraph (1), by striking ``; and'' and inserting a
semicolon;
(B) by redesignating paragraph (2) as paragraph (3); and
(C) by inserting after paragraph (1) the following new
paragraph (2):
``(2) a general statement--
``(A) reflecting whether evidence was not considered in
making the decision because the evidence was received at a
time when not permitted under section 7113 of this title; and
``(B) noting such options as may be available for having
the evidence considered by the Department; and''.
(3) 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.--
(1) In general.--Except as otherwise provided in this
subsection, the amendments made by this section 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 of Veterans Affairs on or after the later of--
(A) the date that is 540 days after the date of the
enactment of this Act; and
(B) the date that is 30 days after the date on which the
Secretary of Veterans Affairs submits to the appropriate
committees of Congress--
(i) a certification that the Secretary confirms, without
delegation, that the Department of Veterans Affairs has the
resources, personnel, office space, procedures, and
information technology required--
(I) to carry out the new appeals system;
(II) to timely address appeals under the new appeals
system; and
(III) to timely address appeals of decisions on legacy
claims; and
(ii) a summary of the expectations for performance outcomes
that the Secretary used in making the certification under
clause (i)(III) and a comparison of such expected performance
outcomes with actual performance outcomes with respect to
appeals of legacy claims before the effective date of the new
appeals system.
(2) Collaboration.--In determining whether and when to make
a certification under paragraph (1)(B), the Secretary shall
collaborate with, partner with, and give weight to the advice
of veterans service organizations and such other stakeholders
as the Secretary considers appropriate.
(3) Early applicability.--The Secretary may apply the new
appeals system to a claim with respect to which the
claimant--
(A) receives a notice of a decision under section 5104 of
such title after the date of the enactment of this Act and
before the applicability date set forth in paragraph (1); and
(B) elects to subject the claim to the new appeals system.
(4) Phased rollout.--The Secretary may begin implementation
of the new appeals system in phases, with the first phase of
such phased implementation beginning on the applicability
date set forth in paragraph (1).
(5) Treatment of legacy claims.--With respect to legacy
claims, upon the issuance to a claimant of a statement of the
case or supplemental statement of the case occurring on or
after the applicability date specified in paragraph (1), a
claimant may elect to participate in the new appeals system.
(6) Publication of applicability date.--Not later than the
date on which the new appeals system goes into effect (or the
first phase of the new appeals system goes into effect under
paragraph (4), as the case may be), the Secretary shall
publish in the Federal Register such date.
(7) Definitions.--In this subsection:
(A) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(i) the Committee on Veterans' Affairs and the Committee on
Appropriations of the Senate; and
(ii) the Committee on Veterans' Affairs and the Committee
on Appropriations of the House of Representatives.
(B) Veterans service organization.--The term ``veterans
service organization'' means any organization recognized by
the Secretary for the representation of veterans under
section 5902 of title 38, United States Code.
(y) Rule of Construction.--Nothing in this section or any
of the amendments made by this section shall be construed to
limit the ability of a claimant to request a revision of a
decision under section 5109A or 7111 of title 38, United
States Code.
SEC. 3. COMPREHENSIVE PLAN FOR PROCESSING OF LEGACY APPEALS
AND IMPLEMENTING NEW APPEALS SYSTEM.
(a) Plan Required.--Not later than 90 days after the date
of the enactment of this Act, the Secretary of Veterans
Affairs shall submit to the appropriate committees of
Congress and the Comptroller General of the United States a
comprehensive plan for--
(1) the processing of appeals of decisions on legacy claims
that the Secretary considers pending;
(2) implementing the new appeals system;
(3) timely processing, under the new appeals system, of--
(A) supplemental claims under section 5108 of title 38,
United States Code, as amended by section 2(i);
(B) requests for higher-level review under section 5104B of
such title, as added by section 2(g); and
(C) appeals on any docket maintained under section 7107 of
such title, as amended by section 2(t); and
(4) monitoring the implementation of the new appeals
system, including metrics and goals--
(A) to track the progress of the implementation;
(B) to evaluate the efficiency and effectiveness of the
implementation; and
(C) to identify potential issues relating to the
implementation.
(b) Elements.--The plan required by subsection (a) shall
include, at a minimum, the following:
(1) Delineation of the total resource requirements of the
Veterans Benefits Administration and the Board of Veterans'
Appeals,
[[Page S4678]]
disaggregated by resources required to implement and
administer the new appeals system and resources required to
address the appeals of decisions on legacy claims.
(2) Delineation of the personnel requirements of the
Administration and the Board, including staffing levels
during the--
(A) period in which the Administration and the Board are
concurrently processing--
(i) appeals of decisions on legacy claims; and
(ii) appeals of decisions on non-legacy claims under the
new appeals system; and
(B) the period during which the Administration and the
Board are no longer processing any appeals of decisions on
legacy claims.
(3) Identification of the legal authorities under which the
Administration or the Board may--
(A) hire additional employees to conduct the concurrent
processing described in paragraph (2)(A); and
(B) remove employees who are no longer required by the
Administration or the Board once the Administration and the
Board are no longer processing any appeals of decisions on
legacy claims.
(4) An estimate of the amount of time the Administration
and the Board will require to hire additional employees as
described in paragraph (3)(A) once funding has been made
available for such purpose, including a comparison of such
estimate and the historical average time required by the
Administration and the Board to hire additional employees.
(5) A description of the amount of training and experience
that will be required of individuals conducting higher-level
reviews under section 5104B of title 38, United States Code,
as added by section 2(g).
(6) An estimate of the percentage of higher-level
adjudicators who will be employees of the Department of
Veterans Affairs who were Decision Review Officers on the day
before the new appeals system takes effect or had experience,
as of such date, comparable to that of one who was a Decision
Review Officer.
(7) A description of the functions that will be performed
after the date on which the new appeals system takes effect
by Decision Review Officers who were Decision Review Officers
on the day before the date the new appeals system takes
effect.
(8) Identification of and a timeline for--
(A) any training that may be required as a result of hiring
new employees to carry out the new appeals system or to
process appeals of decisions on legacy claims; and
(B) any retraining of existing employees that may be
required to carry out such system or to process such claims.
(9) Identification of the costs to the Department of
Veterans Affairs of the training identified under paragraph
(8) and any additional training staff and any additional
training facilities that will be required to provide such
training.
(10) A description of the modifications to the information
technology systems of the Administration and the Board that
the Administration and the Board require to carry out the new
appeals system, including cost estimates and a timeline for
making the modifications.
(11) An estimate of the office space the Administration and
the Board will require during each of the periods described
in paragraph (2), including--
(A) an estimate of the amount of time the Administration
and the Board will require to acquire any additional office
space to carry out processing of appeals of decisions on
legacy claims and processing of appeals under the new appeals
system;
(B) a comparison of the estimate under subparagraph (A) and
the historical average time required by the Administration
and the Board to acquire new office space; and
(C) a plan for using telework to accommodate staff
exceeding available office space, including how the
Administration and the Board will provide training and
oversight with respect to such teleworking.
(12) Projections for the productivity of individual
employees at the Administration and the Board in carrying out
tasks relating to the processing of appeals of decisions on
legacy claims and appeals under the new appeals system,
taking into account the experience level of new employees and
the enhanced notice requirements under section 5104(b) of
title 38, United States Code, as amended by section 2(e).
(13) An outline of the outreach the Secretary expects to
conduct to inform veterans, families of veterans, survivors
of veterans, veterans service organizations, military service
organizations, congressional caseworkers, advocates for
veterans, and such other stakeholders as the Secretary
considers appropriate about the new appeals system,
including--
(A) a description of the resources required to conduct such
outreach; and
(B) timelines for conducting such outreach.
(14) Timelines for updating any policy guidance, Internet
websites, and official forms that may be necessary to carry
out the new appeals system, including--
(A) identification of which offices and entities will be
involved in efforts relating to such updating; and
(B) historical information about how long similar update
efforts have taken.
(15) A timeline, including interim milestones, for
promulgating such regulations as may be necessary to carry
out the new appeals system and a comparison with historical
averages for time required to promulgate regulations of
similar complexity and scope.
(16) An outline of the circumstances under which claimants
with pending appeals of decisions on legacy claims would be
authorized to have their appeals reviewed under the new
appeals system.
(17) A delineation of the key goals and milestones for
reducing the number of pending appeals that are not processed
under the new appeals system, including the expected number
of appeals, remands, and hearing requests at the
Administration and the Board each year, beginning with the
one year period beginning on the date of the enactment of
this Act, until there are no longer any appeals pending
before the Administration or the Board for a decision on a
legacy claim.
(18) A description of each risk factor associated with each
element of the plan and a contingency plan to minimize each
such risk.
(c) Review by Comptroller General of the United States.--
(1) In general.--Not later than 90 days after the
Comptroller General of the United States receives the plan
required by subsection (a), the Comptroller General shall--
(A) assess such plan; and
(B) notify the appropriate committees of Congress of the
findings of the Comptroller General with respect to the
assessment conducted under subparagraph (A).
(2) Elements.--The assessment conducted under paragraph
(1)(A) shall include the following:
(A) An assessment of whether the plan comports with sound
planning practices.
(B) Identification of any gaps in the plan.
(C) Formulation of such recommendations as the Comptroller
General considers appropriate.
(d) Periodic Progress Reports.--Not later than 90 days
after the date on which the Secretary submits the plan under
subsection (a), not less frequently than once every 90 days
thereafter until the applicability date set forth in section
2(x)(1), and not less frequently than once every 180 days
thereafter for the seven-year period following such
applicability date, the Secretary shall submit to the
appropriate committees of Congress and the Comptroller
General a report on the progress of the Secretary in carrying
out the plan and what steps, if any, the Secretary has taken
to address any recommendations formulated by the Comptroller
General pursuant to subsection (c)(2)(C).
(e) Publication.--The Secretary shall make available to the
public on an Internet website of the Department of Veterans
Affairs--
(1) the plan required by subsection (a); and
(2) the periodic progress reports required by subsection
(d).
(f) Appropriate Committees of Congress Defined.--In this
section, the term ``appropriate committees of Congress''
means--
(1) the Committee on Veterans' Affairs and the Committee on
Appropriations of the Senate; and
(2) the Committee on Veterans' Affairs and the Committee on
Appropriations of the House of Representatives.
SEC. 4. PROGRAMS TO TEST ASSUMPTIONS RELIED ON IN DEVELOPMENT
OF COMPREHENSIVE PLAN FOR PROCESSING OF LEGACY
APPEALS AND SUPPORTING NEW APPEALS SYSTEM.
(a) Authorization.--
(1) In general.--The Secretary of Veterans Affairs may
carry out such programs as the Secretary considers
appropriate to test any assumptions relied upon in developing
the comprehensive plan required by section 3(a) and to test
the feasibility and advisability of any facet of the new
appeals system.
(2) Reporting required.--Whenever the Secretary determines,
based on the conduct of a program under paragraph (1), that
legislative changes to the new appeals system are necessary,
the Secretary shall submit to the Committee on Veterans'
Affairs of the Senate and the Committee on Veterans' Affairs
of the House of Representatives notice of such determination.
(b) Department of Veterans Affairs Program on Fully
Developed Appeals.--
(1) In general.--The Secretary of Veterans Affairs may,
under subsection (a)(1), carry out a program to provide the
option of an alternative appeals process that shall more
quickly determine such appeals in accordance with this
subsection.
(2) Election.--
(A) Filing.--In accordance with subparagraph (B), a
claimant may elect to file a fully developed appeal under the
program by filing with the Secretary all of the following:
(i) The notice of disagreement under chapter 71 of title
38, United States Code, along with the written election of
the claimant to have the appeal determined under the program.
(ii) All evidence that the claimant believes is needed for
the appeal as of the date of the filing.
(iii) A statement of the argument in support of the claim,
if any.
(B) Timing.--A claimant shall make an election under
subparagraph (A) as part of the notice of disagreement filed
by the claimant in accordance with subparagraph (A)(i).
(C) Triage.--The Secretary shall, upon expiration of the
period specified in paragraph (3)(C)(iii), ensure that an
assessment is undertaken of whether an appeal filed under
subparagraph (A) of this paragraph satisfies the requirements
for appeal under the program and provide appropriate
notification to
[[Page S4679]]
the claimant of the results of that assessment.
(D) Reversion.--
(i) Elected reversion.--At any time, a claimant who makes
an election under subparagraph (A) may elect to revert to the
standard appeals process. Such a reversion shall be final.
(ii) Automatic reversion.--A claimant described in clause
(i), or a claimant who makes an election under subparagraph
(A) but is later determined to be ineligible for the program
under paragraph (1), shall revert to the standard appeals
process without any penalty to the claimant other than the
loss of the docket number associated with the fully developed
appeal.
(E) Outreach.--In providing claimants with notices of the
determination of a claim during the period in which the
program under paragraph (1) is carried out, the Secretary
shall conduct outreach as follows:
(i) The Secretary shall provide to the claimant (and to the
representative of record of the claimant, if any) information
regarding--
(I) the program, including the advantages and disadvantages
of the program;
(II) how to make an election under subparagraph (A);
(III) the limitation on the use of new evidence described
in subparagraph (C) of paragraph (3) and the development of
information under subparagraph (D) of such paragraph;
(IV) the ability of the claimant to seek advice and
education regarding such process from veterans service
organizations, attorneys, and claims agents recognized under
chapter 59 of title 38, United States Code; and
(V) the circumstances under which the appeal will
automatically revert to the standard appeals process,
including by making a request for a hearing.
(ii) The Secretary shall collaborate, partner with, and
give weight to the advice of the three veterans service
organizations with the most members and such other
stakeholders as the Secretary considers appropriate to
publish on the Internet website of the Department of Veterans
Affairs an online tutorial explaining the advantages and
disadvantages of the program.
(3) Treatment by department and board.--
(A) Process.--Upon the election of a claimant to file a
fully developed appeal pursuant to paragraph (2)(A), the
Secretary shall--
(i) not provide the claimant with a statement of the case
nor require the claimant to file a substantive appeal; and
(ii) transfer jurisdiction over the fully developed appeal
directly to the Board of Veterans' Appeals.
(B) Docket.--
(i) In general.--The Board of Veterans' Appeals shall--
(I) maintain fully developed appeals on a separate docket
than standard appeals;
(II) decide fully developed appeals in the order that the
fully developed appeals are received on the fully developed
appeal docket;
(III) except as provided by clause (ii), decide not more
than one fully developed appeal for each four standard
appeals decided; and
(IV) to the extent practicable, decide each fully developed
appeal by the date that is one year following the date on
which the claimant files the notice of disagreement.
(ii) Adjustment.--Beginning one year after the date on
which the program commences, the Board may adjust the number
of standard appeals decided for each fully developed appeal
under clause (i)(III) if the Board determines that such
adjustment is fair for both standard appeals and fully
developed appeals.
(C) Limitation on use of new evidence.--
(i) In general.--Except as provided by clauses (ii) and
(iii)--
(I) a claimant may not submit or identify to the Board of
Veterans' Appeals any new evidence relating to a fully
developed appeal after filing such appeal unless the claimant
reverts to the standard appeals process pursuant to paragraph
(2)(D); and
(II) if a claimant submits or identifies any such new
evidence, such submission or identification shall be deemed
to be an election to make such a reversion pursuant to
paragraph (2)(D).
(ii) Evidence gathered by board.--Clause (i) shall not
apply to evidence developed pursuant to subparagraphs (D) and
(E). The Board shall consider such evidence in the first
instance without consideration by the Veterans Benefits
Administration.
(iii) Representative of record.--The representative of
record of a claimant for appeals purposes, if any, shall be
provided an opportunity to review the fully developed appeal
of the claimant and submit any additional arguments or
evidence that the representative determines necessary during
a period specified by the Board for purposes of this
subparagraph.
(D) Prohibition on remand for additional development.--If
the Board of Veterans' Appeals determines that a fully
developed appeal requires Federal records, independent
medical opinions, or new medical examinations, the Board
shall--
(i) in accordance with subparagraph (E), take such actions
as may be necessary to develop such records, opinions, or
examinations in accordance with section 5103A of title 38,
United States Code;
(ii) retain jurisdiction of the fully developed appeal
without requiring a determination by the Veterans Benefits
Administration based on such records, opinions, or
examinations;
(iii) ensure the claimant, and the representative of record
of a claimant, if any, receives a copy of such records,
opinions, or examinations; and
(iv) provide the claimant a period of 90 days after the
date of mailing such records, opinions, or examinations
during which the claimant may provide the Board any
additional evidence without requiring the claimant to make a
reversion pursuant to paragraph (2)(D).
(E) Development unit.--
(i) Establishment.--The Board of Veterans' Appeals shall
establish an office to develop Federal records, independent
medical opinions, and new medical examinations pursuant to
subparagraph (D)(i) that the Board determines necessary to
decide a fully developed appeal.
(ii) Requirements.--The Secretary shall--
(I) ensure that the Veterans Benefits Administration
cooperates with the Board of Veterans' Appeals in carrying
out clause (i); and
(II) transfer employees of the Veterans Benefits
Administration who, prior to the enactment of this Act, were
responsible for processing claims remanded by the Board of
Veterans' Appeals to positions within the office of the Board
established under clause (i) in a number the Secretary
determines sufficient to carry out such subparagraph.
(F) Hearings.--Notwithstanding section 7107 of title 38,
United States Code, the Secretary may not provide hearings
with respect to fully developed appeals under the program. If
a claimant requests to hold a hearing pursuant to such
section 7107, such request shall be deemed to be an election
to revert to the standard appeals process pursuant to
paragraph (2)(D).
(4) Duration; applicability.--
(A) Duration.--Subject to subsection (c), the Secretary may
carry out the program during such period as the Secretary
considers appropriate.
(B) Applicability.--This section shall apply only to fully
developed appeals that are filed during the period in which
the program is carried out pursuant to subparagraph (A).
(5) Definitions.--In this subsection:
(A) Compensation.--The term ``compensation'' has the
meaning given that term in section 101 of title 38, United
States Code.
(B) Fully developed appeal.--The term ``fully developed
appeal'' means an appeal of a claim for disability
compensation that is--
(i) filed by a claimant in accordance with paragraph
(2)(A); and
(ii) considered in accordance with this subsection.
(C) Standard appeal.--The term ``standard appeal'' means an
appeal of a claim for disability compensation that is not a
fully developed appeal.
(c) Termination of Authority.--The Secretary of Veterans
Affairs may not carry out a program under this section after
the applicability date set forth in section 2(x)(1).
SEC. 5. PERIODIC PUBLICATION OF METRICS RELATING TO
PROCESSING OF APPEALS BY DEPARTMENT OF VETERANS
AFFAIRS.
The Secretary of Veterans Affairs shall periodically
publish on an Internet website of the Department of Veterans
Affairs the following:
(1) With respect to the processing by the Secretary of
appeals under the new appeals system of decisions regarding
claims for benefits under laws administered by the Secretary,
the following:
(A) For the Veterans Benefits Administration and, to the
extent practicable, each regional office of the Department of
Veterans Affairs, the number of--
(i) supplemental claims under section 5108 of title 38,
United States Code, as amended by section 2(i), that are
pending; and
(ii) requests for higher-level review under section 5104B
of such title, as added by section 2(g), that are pending.
(B) The number of appeals on any docket maintained under
section 7107 of such title, as amended by section 2(t), that
are pending.
(C) The average duration for processing claims and
supplemental claims, disaggregated by regional office.
(D) The average duration for processing requests for
higher-level review under section 5104B of such title, as
added by section 2(g), disaggregated by regional office.
(E) The average number of days that appeals are pending on
a docket of the Board of Veterans' Appeals maintained
pursuant to section 7107 of such title, as amended by section
2(t), disaggregated by--
(i) appeals that include a request for a hearing;
(ii) appeals that do not include a request for a hearing
and do include submittal of evidence; and
(iii) appeals that do not include a request for a hearing
and do not include submittal of evidence.
(F) With respect to the policy developed and implemented
under section 7107(e) of such title, as amended by section
2(t)--
(i) the number of cases moved from one docket to another
pursuant to such policy;
(ii) the average time cases were pending prior to moving
from one docket to another; and
(iii) the average time to adjudicate the cases after so
moving.
(G) The total number of remands to obtain advisory medical
opinions under section
[[Page S4680]]
5109(d) of title 38, United States Code, as added by section
2(j).
(H) The average number of days between the date on which
the Board remands a claim to obtain an advisory medical
opinion under section 5109(d) of such title, as so added, and
the date on which the advisory medical opinion is obtained.
(I) The average number of days between the date on which
the Board remands a claim to obtain an advisory medical
opinion under section 5109(d) of such title, as so added, and
the date on which the agency of original jurisdiction issues
a decision taking that advisory opinion into account.
(J) The number of appeals that are granted, the number of
appeals that are remanded, and the number of appeals that are
denied by the Board disaggregated by docket.
(K) The number of claimants each year that take action
within the period set forth in section 5110(a)(2) of such
title, as added by section 2(l), to protect their effective
date under such section 5110(a)(2), disaggregated by the
status of the claimants taking the actions, such as whether
the claimant is represented by a veterans service
organization, the claimant is represented by an attorney, or
the claimant is taking such action pro se.
(L) The total number of times on average each claimant
files under section 5110(a)(2) of such title, as so added, to
protect their effective date under such section,
disaggregated by the subparagraph of such section under which
they file.
(M) The average duration, from the filing of an initial
claim until the claim is resolved and claimants no longer
take any action to protect their effective date under section
5110(a)(2) of such title, as so added--
(i) of claims under the new appeals system, excluding
legacy claims that opt in to the new appeals system; and
(ii) of legacy claims that opt in to the new appeals
system.
(N) How frequently an action taken within one year to
protect an effective date under section 5110(a)(2) of such
title, as so added, leads to additional grant of benefits,
disaggregated by action taken.
(O) The average of how long it takes to complete each
segment of the claims process while claimants are protecting
the effective date under such section, disaggregated by the
time waiting for the claimant to take an action and the time
waiting for the Secretary to take an action.
(P) The number and the average amount of retroactive awards
of benefits from the Secretary as a result of protected
effective dates under such section, disaggregated by action
taken.
(Q) The average number of times claimants submit to the
Secretary different claims with respect to the same
condition, such as an initial claim and a supplemental claim.
(R) The number of cases each year in which a claimant
inappropriately tried to take simultaneous actions, such as
filing a supplemental claim while a higher-level review is
pending, what actions the Secretary took in response, and how
long it took on average to take those actions.
(S) In the case that the Secretary develops and implements
a policy under section 5104C(a)(2)(D) of such title, as
amended by section 2(h)(1), the number of actions withdrawn
and new actions taken pursuant to such policy.
(T) The number of times the Secretary received evidence
relating to an appeal or higher-level review at a time not
authorized under the new appeals system, disaggregated by
actions taken by the Secretary to deal with the evidence and
how long on average it took to take those actions.
(U) The number of errors committed by the Secretary in
carrying out the Secretary's duty to assist under section
5103A of title 38, United States Code, that were identified
by higher-level review and by the Board, disaggregated by
type of error, such as errors relating to private records and
inadequate examinations, and a comparison with errors
committed by the Secretary in carrying out such duty with
respect to appeals of decisions on legacy claims.
(V) An assessment of the productivity of employees at the
regional offices and at the Board, disaggregated by level of
experience of the employees.
(W) The percentage of cases that are decided within the
goals established by the Secretary for deciding cases,
disaggregated by cases that involve a supplemental claim,
cases that involve higher-level review, and by docket
maintained under section 7107(a) of such title, as amended by
section 2(t), or in the case that the Secretary has not
established goals for deciding cases, the percentage of cases
which are decided within one year, two years, three years,
and more than three years, disaggregated by docket.
(X) Of the cases that involve higher-level review, the
percentage of decisions that are overturned in whole or in
part by the higher-level adjudicator, that are upheld by the
higher-level adjudicator, and that are returned for
correction of an error.
(Y) The frequency by which the Secretary readjudicates a
claim pursuant to section 5108 of such title, as amended by
section 2(i), and the frequency by which readjudication
pursuant to section 5108 of such title, as so amended,
results in an award of benefits.
(Z) In any case in which the Board decides to screen cases
for a purpose described in section 7107(d) of such title, as
amended by section 2(t)(1)--
(i) a description of the way in which the cases are
screened and the purposes for which they are screened;
(ii) a description of the effect such screening has had
on--
(I) the timeliness of the issuance of decisions of the
Board; and
(II) the inventory of cases before the Board; and
(iii) the type and frequency of development errors detected
through such screening.
(2) With respect to the processing by the Secretary of
appeals of decisions on legacy claims, the following:
(A) The average duration of each segment of the appeals
process, disaggregated by periods in which the Secretary is
waiting for a claimant to take an action and periods in which
the claimant is waiting for the Secretary to take an action.
(B) The frequency by which appeals lead to additional grant
of benefits by the Secretary, disaggregated by whether the
additional benefits are a result of additional evidence added
after the initial decision.
(C) The number and average amount of retroactive awards of
benefits resulting from an appeal.
(D) The average duration from filing a legacy claim with
the Secretary until all appeals and remands relating to such
legacy claim are completed.
(E) The average number of times claimants submit to the
Secretary different claims with respect to the same
condition, such as an initial claim, new and material
evidence, or a claim for an increase in benefits.
(F) An assessment of the productivity of employees at the
regional offices and at the Board, disaggregated by level of
experience of the employees.
(G) The average number of days the duration of an appeal is
extended because the Secretary secured or attempted to secure
an advisory medical opinion under section 5109 of title 38,
United States Code, or section 7109 of such title (as in
effect on the day before the date of the enactment of this
Act).
(H) The frequency by which claims are reopened pursuant to
section 5108 of such title and the frequency by which such
reopening results in an award of benefits.
(3) With respect to the processing by the Secretary of
appeals of decisions on legacy claims that opt in to the new
appeals system, the following:
(A) The cumulative number of such legacy claims.
(B) The portion of work in the new appeals system
attributable to appeals of decisions on such legacy claims.
(C) The average period such legacy claims were pending
before opting in to the new appeals system and the average
period required to adjudicate such legacy claims on average
after opting in--
(i) with respect to claims at a regional office of the
Department of Veterans Affairs, disaggregated by--
(I) supplemental claims under section 5108 of title 38,
United States Code, as amended by section 2(i); and
(II) requests for higher-level review under section 5104B
of such title, as added by section 2(g); and
(ii) with respect to appeals, disaggregated by docket of
the Board maintained under section 7107 of such title, as
amended by section 2(t).
SEC. 6. DEFINITIONS.
In this Act:
(1) Claimant.--The term ``claimant'' has the meaning given
such term in section 5100 of title 38, United States Code.
(2) Legacy claims.--The term ``legacy claim'' means a
claim--
(A) that was submitted to the Secretary of Veterans Affairs
for a benefit under a law administered by the Secretary; and
(B) for which notice of a decision under section 5104 of
title 38, United States Code, was provided by the Secretary
before the date set forth in section 2(x).
(3) Opt in.--The term ``opt in'' means, with respect to a
legacy claim of a claimant, that the claimant elects to
subject the claim to the new appeals system pursuant to--
(A) section 2(x)(3); or
(B) such other mechanism as the Secretary may prescribe for
purposes of carrying out this Act and the amendments made by
this Act.
(4) New appeals system.--The term ``new appeals system''
means the set of processes and mechanisms by which the
Secretary processes, pursuant to the authorities and
requirements modified by section 2, claims for benefits under
laws administered by the Secretary.
______