[Senate Report 111-354]
[From the U.S. Government Publishing Office]
Calendar No. 654
111th Congress Report
SENATE
2d Session 111-354
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CLAIMS PROCESSING IMPROVEMENT ACT OF 2010
_______
November 29, 2010.--Ordered to be printed
_______
Mr. Akaka, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany S. 3517]
The Committee on Veterans' Affairs (hereinafter, ``the
Committee''), to which was referred the bill (S. 3517), to
amend title 38, United States Code (hereinafter, ``U.S.C.''),
to improve the processing of claims for disability compensation
filed with the Department of Veterans Affairs (hereinafter,
``VA''), and for other purposes, having considered the same,
reports favorably thereon with an amendment in the nature of a
substitute, and recommends that the bill, as amended, do pass.
Introduction
On June 22, 2010, Committee Chairman Daniel K. Akaka
introduced S. 3517, the proposed ``Claims Processing
Improvement Act of 2010.'' Senators Murray, Rockefeller, and
Schumer were later added as cosponsors. S. 3517, as introduced,
would amend title 38 to improve the processing of disability
compensation claims at VA, and for other purposes. The bill was
referred to the Committee.
Earlier, on May 12, 2010, Chairman Akaka introduced
S. 3348, to provide for the treatment of documents that express
disagreement with decisions of the Board of Veterans' Appeals
(hereinafter, ``Board'') and that are misfiled with the Board
within 120 days of such decisions as motions for
reconsideration of such decisions. The bill was referred to the
Committee.
On May 13, 2010, Chairman Akaka introduced S. 3367, to
increase the rate of pension for disabled veterans who are
married to one another and both of whom require regular aid and
attendance, and for other purposes. The bill was referred to
the Committee.
On May 13, 2010, Chairman Akaka introduced S. 3368, to
authorize certain individuals to sign claims filed with VA on
behalf of claimants. The bill was referred to the Committee.
On May 13, 2010, Chairman Akaka introduced S. 3370, to
improve the process by which an individual files jointly for
Social Security and dependency and indemnity compensation
(hereinafter, ``DIC''), and for other purposes. The bill was
referred to the Committee.
On May 19, 2010, the Committee held a hearing on the above-
referenced bills and other benefits-related legislation.
Testimony on the above-referenced bills was offered by: Thomas
J. Pamperin, Associate Deputy Under Secretary for Policy and
Program Management, Veterans Benefits Administration,
Department of Veterans Affairs; Ian DePlanque, Assistant
Director, Veterans Affairs and Rehabilitation Commission, The
American Legion; Eric A. Hilleman, National Legislative
Director, Veterans of Foreign Wars of the United States; Rick
Weidman, Executive Director for Policy and Government Affairs,
Vietnam Veterans of America; and Tom Tarantino, Legislative
Associate, Iraq and Afghanistan Veterans of America.
On June 16, 2010, Chairman Akaka introduced S. 3499, the
proposed ``Fiduciary Benefits Oversight Act of 2010.'' S. 3499
would authorize VA to obtain financial records of fiduciaries
of individuals receiving benefits from VA. The bill was
referred to the Committee.
On July 14, 2010, the Committee held a hearing entitled
``Review of Veterans Claims Processing: Are Current Efforts
Working?'' Testimony on S. 3517 was offered by: Michael
Walcoff, Acting Under Secretary for Benefits, Veterans Benefits
Administration, Department of Veterans Affairs; Joseph
Thompson, Former Under Secretary for Benefits; Linda Jan Avant,
Rating Specialist, Little Rock, Arkansas Regional Office, and
1st Vice President, Local 2054, American Federation of
Government Employees; Richard Cohen, Executive Director,
National Organization of Veterans' Advocates, Inc.; and Joe
Violante, National Legislative Director, Disabled American
Veterans, on behalf of The Independent Budget.
Committee Meeting
After carefully reviewing the testimony from the foregoing
hearings, the Committee met in open session on August 5, 2010,
to consider, among other legislation, an amended version of
S. 3517, consisting of provisions from S. 3517 as introduced
and provisions from the other legislation noted above. The
Committee voted, without dissent, to report favorably S. 3517
as amended and as subsequently amended during the markup.
Summary of S. 3517 as Reported
S. 3517, as reported (hereinafter, ``the Committee bill''),
consists of 22 sections, summarized below:
Section 1 would provide a short title and table of
contents.
Section 2 would provide for partial adjudication of claims
consisting of multiple issues, one or more of which can be
quickly adjudicated.
Section 3 would authorize certain individuals to sign
claims filed with VA on behalf of claimants who are incompetent
or physically incapable of signing.
Section 4 would clarify that the requirement that VA
provide notice to claimants of additional information and
evidence applies only when additional evidence or information
is actually required to substantiate and grant a claim.
Section 5 would require that equal deference be accorded to
private medical opinions in assessing claims for disability
compensation.
Section 6 would require that claims that have the potential
of being adjudicated quickly, as determined by experienced
claims adjudicators, be expedited. It would also authorize VA
to establish procedures related to fully-developed claims.
Section 7 would authorize VA to utilize a retroactive
effective date when awarding disability compensation based on
applications that are fully-developed when submitted.
Section 8 would require that VA send, with a rating
decision, a form that, if completed and returned, would suffice
as a Notice of Disagreement (hereinafter, ``NOD'').
Section 9 would improve the process by which an individual
files jointly for Social Security benefits and DIC.
Section 10 would authorize VA to obtain financial records
of fiduciaries of individuals receiving benefits from VA.
Section 11 would provide for the treatment of documents
that express disagreement with decisions of the Board and that
are misfiled with the Board within 120 days of such decisions
as motions for reconsideration of such decisions.
Section 12 would modify the filing period for NODs from one
year to 180 days, with a good cause exception.
Section 13 would replace VA's obligation to provide a
Statement of the Case with an obligation to provide a new,
plain-language decision in the case.
Section 14 would require a claimant to file a substantive
appeal within 60 days of VA issuing a post-NOD decision, with a
good cause exception.
Section 15 would automatically waive the review of new
evidence by the agency of original jurisdiction so that certain
evidence submitted on or after the date a substantive appeal is
filed will be subject to initial review by the Board, unless
review by the agency of original jurisdiction is requested.
Section 16 would require the Board to present an appellant
with the options for a Board hearing and with a recommendation
to the appellant of the option that would lead to the earliest
possible date for the hearing and with statistics for the
average wait experienced for similarly situated appellants.
Section 17 would require the United States Court of Appeals
for Veterans Claims (hereinafter, ``the Court'') to decide all
issues raised by an appellant.
Section 18 would allow a good cause extension, not to
exceed 120 days, for filing a notice of appeal with the Court.
Section 19 would require VA to carry out a pilot program on
collaboration with tribal governments to improve the quality of
claims for disability compensation.
Section 20 would increase the rate of pension for disabled
veterans who are married to one another and who both require
regular aid and attendance.
Section 21 would require VA to automatically increase the
rates of disability compensation, DIC, and other rates whenever
there is an increase in Social Security benefits.
Section 22 would require VA to create an action plan to
improve the correlation between employee compensation and
performance.
Background and Discussion
Sec. 2. Adjudication of claims for disability compensation consisting
of multiple issues one or more of which can be quickly
adjudicated.
Section 2 of the Committee bill, which is derived from
S. 3517 as introduced, would provide for partial adjudication
of claims consisting of multiple issues, one or more of which
can be quickly adjudicated.
Background. As of July 2010, it took, on average, 163.1
days for VA to complete a rating decision for a claim for
compensation. Although this is better than the average for
Fiscal Year (hereinafter, ``FY'') 2008, which was 178.9 days,
the average veteran waits nearly five and one-half months for a
claim for compensation to be adjudicated. VA is predicting
that, by the end of FY 2011, it will take on average 190 days
to complete a claim. These timeframes do not include those
decisions that are appealed.
VA realized a 14.1 percent increase in claims receipts in
2009; projected a 16.2 percent increase in 2010; and projected
a 12 percent increase in 2011. The volume of claims received
has increased from 578,773 in 2000 to 1,013,712 in 2009 (a 75
percent increase). Many factors, including an aging veteran
population, a decade of America's involvement in overseas
conflicts, new laws and regulations, and greater outreach, have
contributed to this increase in claims receipts.
Through July 2010, VA completed 870,921 claims while taking
in 938,958 claims. In addition, during the month of July, VA
had approximately 508,000 pending disability claims, about
173,000 (35 percent) of which were pending for longer than VA's
strategic target of 125 days. This means that VA is taking in
much more work than it can complete in a timely manner, despite
a significant increase in staffing and several new initiatives
aimed at bringing down the backlog.
Also, original disability claims with eight or more issues
increased from 22,776 in 2001 to 67,175 in 2009--a nearly 200
percent increase. This increase in the number of issues per
claim further complicates an already complex process.
Committee Bill. Section 2 of the Committee bill would amend
section 1157 of title 38, by adding a new subsection (b) to
require VA to assign intermediate ratings for claims of
compensation that have more than one condition and VA
determines that a disability rating can be assigned with
respect to one or more conditions within those claims without
further development.
This provision of the Committee bill would also require, in
subparagraph (A) of (b)(1), that VA assign the disability
rating expeditiously. New subparagraph (B) of new subsection
(b)(1) would require that VA continue to develop the remaining
conditions. New subsection (b)(2) would require that, if VA is
able to assign a rating with respect to a remaining condition
or conditions, then VA would combine such ratings with the
intermediate rating or ratings previously assigned.
VA would further have the discretion, in new subsection
(b)(3), to assign an intermediate rating and then continue
development of such condition and reassess the rating. All of
these changes would take effect on the date of enactment and
apply to claims filed on or after the date that is 60 days
after enactment.
It is the Committee's view that partial adjudication of
claims would be beneficial to veterans, given that the average
time to complete adjudication of a claim is nearly five and a
half months, because at least partial payment of disability
compensation could begin while that process is ongoing.
Sec. 3. Authority for certain individuals to sign claims filed with
Secretary of Veterans Affairs on behalf of claimants.
Section 3 of the Committee bill, which is derived from
S. 3368, would authorize certain individuals to sign claims
filed with VA on behalf of claimants who are under age 18, are
mentally incompetent, or are physically unable to sign a form.
Background. Some claimants for VA benefits are so disabled
as to be incapable of understanding the information on a
benefits application form. Under current law, section 5101 of
title 38, VA lacks specific authority to authorize a court-
appointed representative or caregiver to sign an application
form allowing the adjudication of the claim to proceed.
However, the Social Security Administration (hereinafter,
``SSA'') has specific authority in section 404.612 of title 20
of the Code of Federal Regulations (hereinafter, ``CFR'') to
permit certain individuals, such as court-appointed
representatives, to sign a claim form on behalf of an
individual unable to understand and sign a claim form.
Committee Bill. Section 3 of the Committee bill would amend
section 5101 of title 38 to modify the application process for
claims filed with VA to allow court-appointed representatives
or caregivers to sign applications from individuals who are
under 18 years of age, mentally incompetent, or physically
unable to sign a form. These changes would apply with respect
to claims filed on or after the date of enactment.
This change will give VA the same authority that SSA has
with respect to claimants who are unable to complete
applications for benefits without requiring assistance. The
Committee does not intend that this provision alter VA's
responsibility to evaluate and appoint a fiduciary in cases
where the beneficiary is determined to be incompetent to manage
his or her benefits.
Sec. 4. Clarification that requirement of Secretary of Veterans Affairs
to provide notice to claimants of additional information and
evidence required only applies when additional information or
evidence is actually required.
Section 4 of the Committee bill, which is derived from
S. 3517 as introduced, would clarify a provision in current law
that VA is obligated to provide notice to claimants of
additional information and evidence only when additional
evidence or information is actually required to substantiate
and grant a claim.
Background. Section 5103(a)(1) of title 38 requires VA to
provide notice, upon receipt of a complete or substantially
complete application, to a claimant and a claimant's
representative, if any medical or lay evidence not previously
provided is necessary to substantiate the claim. As part of
that notice, VA is required to indicate which portion of that
information and evidence, if any, is to be provided by the
claimant and which portion, if any, VA will attempt to obtain
on behalf of the claimant. VA has developed initiatives to
adjudicate ``fully developed claims,'' those for which the
veteran submits all information and medical or lay evidence
needed to adjudicate the claim with the application for
benefits.
If the evidence submitted in support of a claim, together
with any evidence previously submitted, is sufficient to
substantiate the claim, there would be no additional
information or evidence to notify the veteran to submit. In
such cases, VA should proceed to adjudicate the claim. For
example, if a veteran, who has a previous determination of
service in the Republic of Vietnam and has been service-
connected for diabetes in a prior adjudication, submits
evidence of a diagnosis of prostate cancer and current
treatment for the condition at a VA facility, VA has sufficient
evidence to both substantiate and grant the claim without the
need for additional information or evidence. In such a case,
there would be no need for VA to ``notify the claimant and the
claimant's representative'' of information or evidence to
substantiate the claim.
Committee Bill. Section 4 of the Committee bill would amend
section 5103(a)(1) of title 38 to require VA to provide notice
to a claimant and a claimant's representative that additional
information and evidence is required only when additional
information or evidence is actually required to substantiate
and grant a claim. These changes would apply with respect to
claims filed on or after the date that is 60 days after the
date of enactment.
Sec. 5. Equal deference to private medical opinions in assessing claims
for disability compensation.
Section 5 of the Committee bill would provide for equal
deference to private medical opinions in assessing claims for
disability.
Background. Section 5125 of title 38, provides that, for
purposes of establishing any claim for benefits under chapters
11 or 15, a private medical opinion that is provided by a
claimant in support of a claim for benefits ``may be accepted
without a requirement for confirmation by an examination by a
[VA employee] if the report is sufficiently complete to be
adequate for the purpose of adjudicating such claim.''
Further, under section 5103A(d) of title 38, VA is required
to provide an examination or medical opinion when either is
necessary to adjudicate a claim. Section 5103A(d)(2) provides
that an examination is required when the information of record:
``(A) contains competent evidence that the claimant has a
current disability, or persistent or recurrent symptoms of
disability; and (B) indicates that the disability or symptoms
may be associated with the claimant's active military, naval,
or air service; but (C) does not contain sufficient medical
evidence for [VA] to make a decision on the claim.''
However, it appears that VA in some cases orders a medical
evaluation despite having a private, non-VA, medical opinion
already on record that should be sufficient to make a decision
on the claim. For example, in testimony before the Committee
during an oversight hearing on July 9, 2008, regarding undue
delay in claims processing, the witness representing the
Disabled American Veterans provided an example of VA's non-
utilization of private medical opinions.
The Committee was presented with testimony about a veteran,
who served 25 years honorably and was diagnosed with a right
lumbar strain following a lifting injury in February 1963,
after a 20 foot fall while rappelling, and once more when he
was thrown from the vehicle while swerving to avoid a landmine
in Vietnam.
The veteran had a medical history containing months-long
spans of back pain accompanied by neurological symptoms that
were reported in 1966, 1968, 1973, 1974, and 1976. X-rays of
the veteran's lower back taken prior to military discharge
revealed an injury, and numerous private treatment records
following discharge continued to document a definite
disability. A board-certified orthopedic surgeon, who was also
an Associate Professor of Orthopedic Surgery, diagnosed the
veteran with degenerative joint disease of the lumbar spine
with spinal stenosis. Later, VA received a medical opinion from
this same orthopedic surgeon wherein he stated his belief that,
in all likelihood, the Vietnam War injuries contributed to his
early onset of arthritis and spinal stenosis.
The veteran filed a claim for service connection for his
lower back condition in January 2002, wherein he provided a
detailed explanation of the circumstances of his injuries
during service and the reasoning behind his failure to seek
treatment in service. He submitted a statement to VA that all
doctors who provided medical opinions on his condition had an
opportunity to review a complete copy of his service medical
records. A few months later VA received another medical opinion
from a second board-certified orthopedic surgeon, an Associate
Professor of Orthopedic Surgery, who stated that he had treated
the veteran since March 1993 for chronic back issues and that
he had reviewed the veteran's service medical records. The
opinion stated that the veteran's ``condition is a continuation
of the difficulties he developed in the service.'' The veteran
submitted a second medical (totaling three) opinion from one of
the surgeons stating that the lower back pain complaints he had
while in the military ``gradually progressed to the point where
he now has post-traumatic arthritis of the lumbar spine.'' A
second opinion from the other surgeon (totaling four) was
submitted that stated, ``[h]e had problems dating back to 1974
* * *. I have reviewed his medical service record which
indicates this difficulty to that point in time.''
In developing the claim, the VA conducted an examination of
the veteran, and requested an additional medical opinion,
despite the four opinions already of record. The examination
and medical opinion was performed by a non-certified physician
assistant (``PA'' rather than ``PA-C''). Failing to refer to
all of the treatment records in service, and without
acknowledging the evidence that included four opinions
presented by the two orthopedic surgeons, the physician
assistant's opinion explored the likelihood that the veteran's
condition was congenital and age related, thus not related to
his service. Based on the physician assistant's opinion, the VA
did not grant the claim.
The veteran in the example above obtained evidence from
multiple physicians. VA, in turn, obtained a contradictory
opinion from one provider with lower credentials than all four
physicians relied upon by the veteran. Hence, it appears that
no deference was provided to the four physicians from whom
medical opinions were obtained.
Committee Bill. Section 5 of the Committee bill would add a
new section to title 38, section 5103B, that would require
that, if a claimant submits a private medical opinion in
support of a claim for disability compensation and that opinion
satisfies any standards established by VA, the opinion would be
treated with the same deference as a medical opinion provided
by a VA health care provider. However, if the private medical
opinion is found by VA to be competent, credible, and
probative, but otherwise not entirely adequate for purposes of
assigning a disability rating or determining service-
connection, and VA determines that a medical opinion from a
Department health care provider, to include a health care
provider under contract with VA, is necessary for such
purposes, VA would be required to obtain from an appropriate
Department health care provider, a medical opinion that is
adequate for such purposes. In the event that such an opinion
is obtained, this provision further requires that VA, to the
extent feasible, provide an opinion from a Department health
care provider who has expertise in the same area as the private
medical provider, if the private provider had opined on a
pertinent issue within his or her expertise.
This section would also amend section 5103(a) of title 38
by adding a new paragraph (3), to require VA to notify a
claimant, as the Secretary considers appropriate, regarding the
rights of the claimant to assistance under section 5103A and,
if the claimant submits a private medical opinion in support of
the claim for disability compensation, how such medical opinion
will be treated under new section 5103B.
The Committee does not intend that the effect of this
provision will be to tie VA's hands with respect to private
medical evidence--VA would be required to treat the private
medical opinion with equal deference if, and only if, such
opinion satisfies standards established by the Secretary. One
goal of this change is to eliminate overdevelopment of claims,
which in turn may provide a decision on disability compensation
for a veteran in a timelier manner, as well as allow VA
resources to be used in areas which may need them more.
The Committee further believes that there is, at a minimum,
a perception of unfairness, if VA relies more heavily on a
negative VA medical opinion from an examiner with lesser
credentials, rather than the favorable medical opinions from
one or more private medical examiners who provide competent,
credible, and probative opinions with greater credentials than
the VA examiner.
Sec. 6. Improvements to disability compensation claim review process.
Section 6 of the Committee bill, which is derived from
S. 3517 as introduced, would require expedited review of
initial claims for disability compensation that have the
potential of being adjudicated quickly. It would also authorize
VA to establish procedures for fully-developed claims.
Background. As noted in the discussion of section 2 of the
Committee bill, the average time for the adjudication of an
initial claim for disability compensation is five and a half
months. In addition, as also discussed above, initial claims
for compensation are growing increasingly complex as the number
of claimed issues increases.
Committee Bill. Subsection (a) of section 6 of the
Committee bill would add a new section to title 38--5103C,
entitled ``Expedited review of claims for disability
compensation,'' which would require, in new subsection (a), VA
to establish a process for the rapid identification of initial
claims for disability compensation that should receive priority
in review.
Subsection (b) of new section 5103C would require VA to
assign employees who are experienced in the processing of
claims for disability compensation to carry out a preliminary
review of all initial claims for disability compensation
submitted to VA in order to identify if: the claims have the
potential of being adjudicated quickly, they qualify for
priority treatment, and a temporary disability rating could be
assigned.
Subsection (c) of new section 5103C would require VA to
give priority to claims that have the potential of being
adjudicated quickly. This subsection would also allow VA to
prescribe by regulations the order of priority of claims for
disability compensation, which allows some claims to be placed
ahead of others for purposes of adjudication.
Subsection (b) of section 6 of the Committee bill would add
a new section to title 38--section 5103D, entitled ``Procedures
for fully developed claims,'' which would allow a claimant to
notify VA that he or she has no additional information or
evidence to submit. VA would then be required to undertake any
development necessary to obtain any Federal records, medical
examinations, or opinions relevant to the claim and decide the
claim based on all the evidence of record.
New section 5103C would take effect 90 days after the date
of enactment and new section 5103D would take effect on the
date of enactment.
Sec. 7. Authority for retroactive effective date for awards of
disability compensation in connection with applications that
are fully-developed at submittal.
Section 7, which was accepted as an amendment during Markup
of the Committee bill, would allow up to a one year retroactive
effective date for awards of disability compensation that are
based on claims that are fully-developed when submitted to VA.
Background. Under section 221 of Public Law 110-389, the
Veterans' Benefits Improvement Act of 2008, VA was required to
conduct a pilot project to test ``the feasibility and
advisability of providing expeditious treatment of fully
developed compensation or pension claims to ensure that such
claims are adjudicated not later than 90 days after the date on
which such claim is submitted as fully developed.'' After
carrying out that pilot at 10 VA regional offices, VA expanded
the fully-developed claim process to all VA regional offices.
At a July 14, 2010, hearing before the Committee, VA's Acting
Under Secretary for Benefits explained that, ``if VA receives
all of the available evidence when the claim is submitted, the
remaining steps in the claims-decision process can be expedited
without compromising quality.''
However, under current law, there is a potential
disincentive for veterans to file fully-developed claims. That
is because, under section 5110(a) of title 38, the effective
date of an award of disability compensation generally cannot be
earlier than the date on which VA received the application for
those benefits. Although there are exceptions to that general
rule, none of the exceptions would allow a retroactive
effective date for veterans who file fully-developed claims.
Accordingly, if a veteran takes time before filing a claim to
gather the necessary information and evidence so as to ensure
that the claim is fully-developed, the veteran could
potentially lose out on benefits for the period between when
the veteran began gathering the evidence and when he or she
ultimately filed a fully-developed claim.
Committee Bill. Section 7 of the Committee bill would amend
section 5110 of title 38 to provide that the effective date of
an award of disability compensation to a veteran who submitted
a fully-developed claim would be based on the facts found but
would not be earlier than one year before the date on which VA
received the veteran's application.
It is the Committee's expectation that, by allowing an
effective date up to one year earlier than the date on which a
fully-developed claim is filed, more veterans will be
encouraged to file fully-developed claims and, in return,
receive faster decisions on their claims.
Sec. 8. Provision by Secretary of Veterans Affairs of Notice of
Disagreement forms to initiate appellate review with notices of
decisions of Department of Veterans Affairs.
Section 8 of the Committee bill, which is derived from
S. 3517 as introduced, would require VA to develop a form that
suffices as an NOD, as required to initiate appellate review
under current law.
Background. Under current law, section 511 of title 38, VA
is required to decide all questions of law and fact necessary
to a decision under a law that affects its provision of
benefits to veterans or dependents or survivors of veterans.
VA's decision is final and conclusive and may not be reviewed
by any other official or court, unless it is a matter subject
to judicial review by the United States Court of Appeals for
Veterans Claims, or it pertains to insurance programs
administered by VA or housing and small business programs
administered by VA.
Section 5104(a) of title 38 requires VA to provide a
claimant and the claimant's representative timely notice of
decisions under section 511 that affect the provision of
benefits to a claimant. That notice must include an explanation
of how to obtain review of the decision. In addition, section
5104(b) provides that, if VA denies a benefit sought, the
notice must include a statement of the reasons for the decision
and a summary of the evidence relied upon by VA.
Pursuant to section 7105 of title 38, once notice has been
given to the claimant, the claimant must initiate appellate
review by filing an NOD within one year, if the claimant wishes
to have the decision reviewed. This initial step in the appeals
process is mandatory. Under current VA regulations, section
20.201 of title 38, CFR, an NOD is defined as a ``written
communication from a claimant or his or her representative
expressing dissatisfaction or disagreement with an adjudicative
determination by the agency of original jurisdiction and a
desire to contest the result.''
Committee Bill. Section 8 of the Committee bill would amend
section 5104(b) so as to require VA, in addition to providing a
statement of the reasons for the decision and a summary of the
evidence relied upon by VA in making a decision to provide an
explanation of the procedure for obtaining review of the
decision and a copy of a form that, once completed, will serve
as an NOD. The explanation of the procedure for obtaining
review of the decision would be required to include the period
prescribed under paragraph (1) of section 7105(b) of title 38
for filing an NOD and the good cause exception under new
paragraph (3) of section 7105(b), as amended by section 12 of
the Committee bill. These changes would take effect on the date
that is 180 days after enactment.
Given the complexity of the VA adjudication and appeals
process, it is the Committee's belief that providing a form to
the claimant that would suffice as the first step in obtaining
appellate review would be beneficial to the claimant and should
speed up the overall process.
Sec. 9. Improvement of process for filing jointly for Social Security
and dependency and indemnity compensation.
Section 9 of the Committee bill, which is derived from
S. 3370, would codify VA's current practice of allowing any
claim for survivor benefits filed with SSA to establish the
effective date for DIC benefits.
Background. Under current law, section 5105 of title 38, VA
and SSA are required to develop and use joint applications for
survivor benefits for those who apply for both DIC and Social
Security survivor benefits. Section 5105 further provides that,
if such a joint application form is filed with either VA or
SSA, it will be deemed an application for both DIC and Social
Security benefits. However, at present, SSA applications are
primarily online and VA's are paper-based.
In a recent court case, Van Valkenburg v. Shinseki, 23 Vet.
App. 113 (2009), VA represented to the Court that ``there has
never been an individual `jointly prescribed form' promulgated
between VA and SSA'' and that, ``in practice, a claim for
survivor's benefits can be filed on any form, with either VA or
SSA, when the applicant reflects an intent to seek such
benefits.'' The Court accepted the Secretary's representation
that ``any claim, sufficient to reflect an intent to apply for
survivor's benefits, that is filed with SSA will suffice to
establish the effective date of DIC.''
Committee Bill. Section 9 of the Committee bill would amend
section 5105 of title 38 to permit--but not require--the
development of a joint form for SSA and VA survivor benefits.
This provision of the Committee bill would also amend section
5105 so that any form indicating an intent to apply for
survivor benefits would be deemed an application for both DIC
and Social Security benefits. This is intended to codify VA's
practice under which any indication of intent to apply for
Social Security survivor benefits is also treated as an
application for VA DIC survivor benefits.
Sec. 10. Access by Secretary of Veterans Affairs to financial records
of individuals represented by fiduciaries and receiving
benefits under laws administered by Secretary.
Section 10 of the Committee bill, which is derived from
S. 3499, would authorize VA to obtain the financial records of
fiduciaries from financial institutions.
Background. Under section 5502(a)(1) of title 38,
beneficiaries who have been determined by VA to be incompetent
to handle their financial affairs may have a fiduciary
appointed by VA to receive their benefits. Section 5502(a)(2)
of title 38 allows the Secretary to authorize a reasonable
commission for services rendered by an appointed fiduciary, if
the appointment is necessary to obtain services that are in the
best interests of the beneficiary. Under section 5502(b) of
title 38, VA is responsible for monitoring the activity of
fiduciaries to assure that the monies paid to the fiduciary are
used only for the beneficiary and the beneficiary's dependents.
VA may request that a fiduciary sign a release of
information to enable VA to obtain the records of a financial
institution in order to review such records in the course of
its oversight of the fiduciary. There is currently no specific
sanction if a fiduciary refuses or neglects to sign an
authorization. Under section 1104 of Public Law 95-630, the
Financial Institutions Regulatory and Interest Rate Control Act
of 1978, codified at section 3404 of title 12, United States
Code, any release signed by a fiduciary is valid ``for a period
not in excess of three months.'' This amount of time is not
always adequate for VA to properly monitor the financial
accounts of certain fiduciaries.
The Social Security Administration, which is responsible
for similar monitoring of benefits paid to ``representative
payees'' of beneficiaries of their programs, has authority to
obtain financial records for proper administration of its
programs under section 3413 of title 12, United States Code,
without the time limitation applicable to VA.
Committee Bill. Section 10 of the Committee bill would
amend section 5502 of title 38 to add a new subsection (f) that
would authorize VA to access the financial records of
fiduciaries of individuals receiving benefits.
New subsection (f) of section 5502 would allow VA to
require any person appointed or recognized as a fiduciary for a
VA benefit to provide authorization for VA to obtain from any
financial institution any financial record held by the
institution with respect to the fiduciary or beneficiary if VA
determines that the financial record is necessary for the
administration of any program administered by VA, or to
safeguard a beneficiary's benefits against neglect,
misappropriation, misuse, embezzlement, or fraud.
Under new subsection 5502(f) an authorization by a
fiduciary would remain in effect until the earlier of: an
approval by a court or VA of a final accounting of payment of
any VA-administered benefit; in the absence of any evidence of
neglect, misappropriation, misuse, embezzlement, or fraud, the
express revocation by the fiduciary of the authorization in a
written notification to VA; or three years after the date of
the authorization.
Were a fiduciary to refuse to provide or to revoke any
authorization to permit VA to obtain financial records, new
subsection 5502(f) would allow VA to remove the appointment of
recognition of the fiduciary for such beneficiary and any other
VA beneficiary for whom the fiduciary has been appointed or
recognized.
The Committee expects that enactment of this provision
would improve the ability of VA to identify and prevent
neglect, misappropriation, misuse, embezzlement, or fraud
involving VA monies paid to fiduciaries. This provision will
provide VA with authority similar to that provided to the
Social Security Administration for similar beneficiaries of its
programs.
Sec. 11. Treatment of certain misfiled documents as motions for
reconsideration of decisions by Board of Veterans' Appeals.
Section 11 of the Committee bill, which is derived from
S. 3348, would provide for the treatment of documents that
express disagreement with decisions of the Board and that are
misfiled with the Board or an agency of original jurisdiction
(hereinafter, ``AOJ'') within 120 days of such decisions as
motions for reconsideration of such decisions.
Background. If a claimant disagrees with a Board decision,
the claimant has the option, under section 7103 of title 38, to
ask the Board for reconsideration or to appeal to the U.S.
Court of Appeals for Veterans Claims pursuant to section 7266
of title 38. Under section 7266, an appeal to that Court must
be filed with the Court within 120 days after notice of the
Board decision is mailed to the claimant. Veterans or their
family members are sometimes confused by this process and
incorrectly send the Notice of Appeal to one of VA's offices.
If that happens and the Notice of Appeal is not forwarded to
the Court within the 120-day window, the appeal eventually may
be dismissed by the Court as untimely.
In Posey v. Shinseki, 23 Vet. App. 406 (2010), the Court
discussed this problematic situation where claimants notify VA
of their disagreement with a decision of the Board but
mistakenly send their documents to VA instead of the Court. The
Court suggested that VA be held accountable for properly
receiving and forwarding Notices of Appeal.
Judge Hagel wrote a concurring opinion that includes this
observation:
It has become clear to me that VA somewhat routinely
holds correspondence from claimants that it determines,
sometime after receipt, are Notices of Appeal to this
Court. As a result, in far too many cases, the Court
receives the Notice of Appeal from VA only after the
120-day appeal period has expired, permitting the
Secretary to then move to dismiss the appeals for lack
of jurisdiction * * *.
As one possible solution, Judge Hagel made this suggestion:
Another option * * * would be for Congress to amend
38 U.S.C. 7103 (governing reconsideration of Board
decisions) or 38 U.S.C. 7266 (regarding Notices of
Appeal) to include language providing that a Notice of
Appeal filed with VA during the 120-day appeal period
following an adverse Board decision will be treated as
a motion for reconsideration of the Board decision if
VA does not forward the Notice of Appeal to the Court
in a timely manner.
Committee Bill. Section 11 of the Committee bill would
amend section 7103 of title 38 to add a new subsection (c), to
provide that a Notice of Appeal sent to VA, instead of the
Court, will be considered as a motion for reconsideration by
the Board in certain circumstances. Specifically, this new
subsection would provide that, if a person, within the 120-day
appeal period, files a document with the Board or the AOJ,
expressing disagreement with a Board decision and has not yet
filed a Notice of Appeal with the Court, the document will be
treated as a motion for reconsideration, unless the Board or
AOJ determines that the document expresses an intent to appeal
to the Court and forwards the document to the Court within the
120-day appeal period and the Court receives the document
within the 120-day period. This change would treat the notice
sent to VA as a request for reconsideration of the Board
decision, thereby permitting the claimant to have his or her
case reconsidered by the Board as well as preserve the later
right of appeal to the Court.
Sec. 12. Modification of filing period for notice of disagreement to
initiate appellate review of decisions of Department of
Veterans Affairs.
Section 12 of the Committee bill, which is derived from
S. 3517 as introduced, would modify the filing period for an
NOD from one year to 180 days, with a good cause exception.
Background. Under current law, section 7105(b) of title 38,
a claimant has one year to file an NOD after the date on which
VA mails notice of an initial decision on a claim for benefits,
meaning that, in some cases, VA must wait a year to determine
if a claimant disagrees with a decision on a claim for
benefits. If a claimant waits until the end of the one-year
period to file an NOD, VA is often required to re-develop the
record to ensure the evidence of record is up to date. Data
from the Board supports the conclusion that post-NOD
development delays the resolution of the claim. In FY 2008,
appeals in which the AOJs received an NOD more than 180 days
after the date the decision was mailed took, on average, 32
additional days to decide. If the period in which to file an
NOD were reduced to 180 days, VA could more quickly finalize
the administrative processing of claims not being appealed and
focus resources on the processing of new pending claims and
appeals.
Committee Bill. Section 12 of the Committee bill would
amend section 7105(b) of title 38 to modify the filing period
for NODs to 180 days. It would also permit NODs to be filed
electronically.
With the addition of a new paragraph (3)(A) to section
7105(b), VA would also be authorized to grant good cause
exceptions to the 180-day limit under specific circumstances,
such as: circumstances relating to any physical, mental,
educational, or linguistic limitation of the claimant, legal
guardian, representative, attorney, or authorized agent;
circumstances relating to significant delay in the delivery of
the initial decision or of the NOD caused by natural disaster
or geographic location; or any change in financial
circumstances. If good cause for lack of filing within the 180-
day period is shown, the NOD will be treated as timely if filed
within 186 days after the initial 180-day period ends.
These changes would take effect 180 days after the date of
enactment and apply to claims filed on or after the date of
enactment.
Because the majority of claimants are able to determine
quickly if they are satisfied with VA's decision on their
claim, it is the Committee's view that enactment of this
provision should not adversely affect claimants for VA
benefits. In FY 2008, 77 percent of the NODs were filed in less
than 180 days. Among these cases, the average time to file an
NOD was just 41 days.
Sec. 13. Provision of post-notice of disagreement decisions to
claimants who file notices of disagreements.
Section 13 of the Committee bill, which is derived from
S. 3517 as introduced, would replace VA's responsibility to
provide a ``statement of the case'' with a requirement to
provide a ``post-notice of disagreement decision.''
Background. Under current law, section 7105 of title 38,
appellate review is initiated by an NOD and completed by a
substantive appeal after a statement of the case is provided by
VA to the claimant and to the claimant's representative, if
any. Pursuant to subsection (d)(1) of that section, a statement
of the case must contain a summary of the pertinent evidence, a
citation to pertinent laws and regulations, a discussion of how
those laws and regulations affect the decision, the decision on
each issue, and a summary of the reasons for each decision.
Committee Bill. Section 13 of the Committee bill would
amend section 7105 to replace VA's responsibility to provide a
``statement of the case,'' as currently mandated by section
7105, with a requirement to provide a ``post-notice of
disagreement decision.''
This provision of the Committee bill would additionally
rewrite section 7105(d)(1) to require that the post-notice of
disagreement decision include: in new subparagraph (A), a
description of the specific facts that support VA's decision,
including an assessment as to the credibility of any lay
evidence pertinent to the issue or issues with which
disagreement has been expressed; in new subparagraph (B), a
citation to pertinent laws and regulations that support VA's
decision; in new subparagraph (C), a statement that addresses
each issue and provides the reasons why the evidence relied
upon supports the conclusions of the agency under the specific
laws and regulations applied; in new subparagraph (D), the date
by which a substantive appeal must be filed in order to obtain
further review of the decision; and in new subparagraph (E),
the rights of the claimant under subsection (f) of section
7105, as added by section 15 of the Committee bill, to request
that the agency of original jurisdiction initially review
evidence that has been submitted after the agency of original
jurisdiction receives a substantive appeal.
Section 13 would further require, in new paragraph (d)(4)
of section 7105, as renumbered by section 4 of the Committee
bill, that the post-notice of disagreement decision be written
in plain language. The changes made by this section would take
effect 180 days after enactment and apply with respect to NODs
filed on or after that date.
Sec. 14. Modification of substantive appeal process.
Section 14 of the Committee bill, which is derived from
S. 3517 as introduced, would require a claimant to file a
substantive appeal within 60 days of VA mailing a post-notice
of disagreement decision and allow an extension of that period
with good cause.
Background. Under current law, section 7105(a) of title 38,
an appeal to the Board must be initiated by the claimant's
filing of an NOD and completed by the claimant's filing of a
substantive appeal, which is the means that a claimant must use
to respond to the statement of the case, or VA's version of the
issues in dispute.
Current law, section 7105(d)(3), as it relates to
substantive appeals, provides that:
Copies of the ``statement of the case'' * * * will be
submitted to the claimant and to the claimant's
representative, if there is one. The claimant will be
afforded a period of sixty days from the date the
statement of the case is mailed to file the formal
appeal. This may be extended for a reasonable period on
request for good cause shown. The appeal should set out
specific allegations of error of fact or law, such
allegations related to specific items in the statement
of the case. The benefits sought on appeal must be
clearly identified. The agency of original jurisdiction
may close the case for failure to respond after receipt
of the statement of the case, but questions as to
timeliness or adequacy of response shall be determined
by the Board of Veterans' Appeals.
In addition, VA regulations, 38 CFR 20.302(b), provide that
a ``Substantive Appeal must be filed within 60 days from the
date that the agency of original jurisdiction mails the
Statement of the Case to the appellant, or within the remainder
of the 1-year period from the date of the mailing of the
notification of the determination being appealed, whichever
period ends later.'' Another VA regulation, 38 CFR 19.34,
provides that a determination by the agency of original
jurisdiction as to the timeliness of the a Substantive Appeal
is an appealable issue.
Committee Bill. Section 14 of the Committee bill is tied to
the changes proposed in section 13 of the Committee bill, which
would replace VA's current requirement to provide a ``statement
of the case'' to claimants with a requirement to provide a
``post-notice of disagreement decision.''
Section 14 of the Committee bill would create a new
subsection, (e) to section 7105, which would allow the claimant
60 days to file a substantive appeal after a post-notice of
disagreement decision is mailed. This provision of the
Committee bill would authorize VA to grant an additional 60
days, in new section 7105(e)(2)(A), to file a substantive
appeal for good cause, rather than the undefined period in
current law. Good cause is defined in new section 7105(e)(2)(B)
as including those circumstances relating to any physical,
mental, educational, or linguistic limitation of the claimant,
legal guardian, or other accredited representative, attorney,
or authorized agent filing the request; circumstances relating
to significant delay in the delivery of the initial decision or
of the NOD caused by natural disaster or factors relating to
geography; or a change in the financial circumstances that are
considered in determining eligibility for benefits or services
on an annualized basis.
Consistent with current law, proposed new section
7105(e)(4) would provide that a claimant would not be presumed
to agree with any statement of fact contained in the new
``post-notice of disagreement decision'' with which he or she
does not specifically disagree.
Section 7105 would be further modified by section 14 of the
Committee bill to clarify, in new subparagraph (e)(5), what
occurs when a claimant does not file a substantive appeal in
accordance with the law, to include requiring dismissal of the
case by the agency of original jurisdiction and notification of
the claimant of such dismissal. The notification would include
an explanation of the procedure for obtaining review of the
dismissal by the Board.
The changes proposed by section 14 of the Committee bill
would take effect on the date of enactment and apply with
respect to claims filed on of after the date 180 days after
enactment.
Sec. 15. Automatic waiver of agency of original jurisdiction review of
new evidence.
Section 15 of the Committee bill, which is derived from
S. 3517 as introduced, would automatically waive the review of
certain new evidence by the AOJ so that certain evidence
submitted after the initial decision will be subject to initial
review by the Board, unless review by the agency of original
jurisdiction is requested.
Background. VA regulations, section 20.1304(c) of title 38,
CFR, provide that, if additional evidence is submitted to the
Board after an appeal is certified to the Board, the evidence
``must be referred to the agency of original jurisdiction for
review, unless this procedural right is waived by the appellant
or representative.'' The requirement that the AOJ initially
consider all evidence, unless the claimant waives the right,
frequently delays the final adjudication of claims because
claimants often submit additional evidence after perfecting
their appeals to the Board by filing a substantive appeal.
Under current procedures, each time a claimant, after filing a
substantive appeal, submits more evidence without waiving the
right to initial AOJ consideration, the AOJ must review the
evidence submitted and issue a supplemental statement of the
case pursuant to section 19.31 of title 38, CFR, that addresses
the additional evidence.
Committee Bill. Section 15 of the Committee bill would
amend section 7105 by creating a new subsection (f) that would
provide for an automatic waiver of the right to initial
consideration of certain evidence by the AOJ. The evidence that
would be subject to the waiver is evidence that the claimant or
his or her representative submits to the AOJ or the Board
concurrently with or after filing the substantive appeal. Such
evidence would be subject to initial consideration by the
Board, unless the appellant or his or her representative
requests in writing that the AOJ initially consider the
evidence. The request would be required to be submitted with
the evidence or within 30 days of its submittal of the
evidence.
These changes would take effect 180 days after enactment
and apply with respect to claims for which a substantive appeal
is filed on or after that date.
The Committee believes that the establishment of an
automatic waiver would necessarily improve the timeliness of
processing appeals as a whole. Because the Board bases its
decisions on a de novo review of all the evidence of record,
many more appeals could be more quickly transferred to the
Board following the receipt of a substantive appeal. The AOJs
would spend less time responding to appellants who submit
additional evidence following the filing of a substantive
appeal. By presuming a waiver of AOJ review of new evidence,
the Board would be able to adjudicate claims without the delay
of a remand, thereby getting final decisions to veterans
quicker and reducing the increased appellate workload caused by
the reworking of remanded claims. In addition, any appellant
wishing to have the evidence considered by the AOJ in the first
instance would still have the right to such a review simply by
alerting the Board of that desire.
Sec. 16. Determination of location and manner of appearance for
hearings.
Section 16 of the Committee bill, which is derived from
S. 3517 as introduced, would require the Board to present an
appellant the options for a Board hearing.
Background. Under current law, section 7107(d) of title 38,
if an individual appeals to the Board, the individual may
request a hearing before the Board at the Board's principal
location in Washington, DC, or at a VA facility in the area of
the appellant's local regional office (called field hearings or
travel Board hearings). In addition, that section provides that
field hearings may be conducted ``through voice transmission or
through picture and voice transmission'' with Board members
sitting in Washington, DC. According to the Board's Annual
Report to Congress for Fiscal Year 2009, in fiscal year 2009,
the Board conducted 3,375 video hearings and 7,784 field
hearings. Although veterans are less likely to utilize video
hearings, as opposed to travel Board hearings, the Board
reports that there is no statistical difference in the
allowance rate of appeals in which hearings are held in the
field compared to video conference hearings. Also, the Board
will move to a new location in 2011, where it will have 17
video hearing rooms instead of just five.
According to the Board, the potential results of expanded
use of video capabilities include serving more veterans,
reducing an appellant's wait time for a hearing, and increasing
efficiency in issuing final decisions on appeal, as travel days
can be utilized as decision-generating workdays and the Board
will not lose time in the field due to appellants who fail to
show up for scheduled hearings.
Committee Bill. Section 16 of the Committee bill would
amend subsection (d)(1) of section 7107 of title 38 to provide
that, upon request from an appellant for a hearing before the
Board, the Board would be required to present the appellant
with the options for a Board hearing, to include the Board's
principal location in Washington, DC, a travel board hearing,
or a video hearing, along with a recommendation to the
appellant of the option that would lead to the earliest
possible date for the hearing and statistics for the average
wait experienced for similarly situated appellants. This
section would also amend subsection (e) of section 7107 of
title 38 to require the Board to inform the appellant of the
advantages and disadvantages of participation in a hearing
utilizing the Board's principal location in Washington, DC, a
travel board hearing, or a video hearing. These changes would
take effect 180 days after enactment and apply to requests for
hearings made on or after that date.
It is the Committee's view that these changes should allow
appellants to make a better informed choice of the type of
hearing that best suits their needs and preferences. If these
provisions are enacted, veterans would be better informed of
their options for a hearing, including the potential for video
hearings, which have been shown to be statistically as
advantageous to a veteran as a travel Board hearing.
Sec. 17. Decision by Court of Appeals for Veterans Claims on all issues
raised by appellants.
Section 17 of the Committee bill, which is derived from
S. 3517 as introduced, would require the Court of Appeals for
Veterans Claims (hereinafter, ``CAVC'') to decide all issues
raised by appellants in the cases that come before it.
Background. Under current law, section 7261(a)(1) to (4) of
title 38, the Court, ``to the extent necessary to its decision
and when presented, shall'': (1) decide relevant questions of
law, interpret statutory and regulatory provisions, and
determine the meaning or applicability of the terms of an
action of VA; (2) compel action of VA unlawfully withheld or
unreasonably delayed; (3) hold unlawful and set aside
decisions, findings, conclusions, rules, and regulations issued
or adopted by VA that are found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with the
law, contrary to constitutional power, privilege or immunity,
in excess of statutory jurisdiction, authority, or limitations,
or in violation of statutory law, or without observance of
procedure required by law; and (4) hold unlawful and set aside
or reverse findings of fact if they are clearly erroneous. See
Mahl v. Principi, 15 Vet. App. 37, 38 (2001) (holding that
where remand is appropriate, the Court need not ``analyze and
discuss all the other claimed errors that would result in a
remedy no broader than a remand''); Best v. Principi, 15 Vet.
App. 18, 20 (2001) (per curiam order) (holding that ``[a]
narrow decision preserves for the appellant an opportunity to
argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal,
should the Board rule against him'').
Committee Bill. Section 17 of the Committee bill would
amend section 7261 of title 38, relating to the Court's scope
of review, to require CAVC to decide all issues raised by
appellants in cases before the Court. Specifically, section
7261(a) would be amended by striking the phrase ``to the extent
necessary to its decision,'' thereby removing the Court's
discretion to address issues pertaining to paragraphs (1) to
(4) of that section when presented by any party. This provision
of the Committee bill would also add a new subsection, (c), to
section 7261 to require that the Court render a decision on
every issue raised by an appellant.
Sec. 18. Good cause extension of period for filing notice of appeal
with United States Court of Appeals for Veterans Claims.
Section 18 of the Committee bill, which is derived from
S. 3517 as introduced, would create a good cause extension, not
to exceed 120 days, for filing a notice of appeal with the
Court.
Background. Under section 7266(a) of title 38, if a
claimant disagrees with a decision of the Board, the claimant
may appeal to the Court by filing a notice of appeal within 120
days after the date on which notice of the decision was mailed
by the Board.
In Henderson v. Shinseki, 589 F.3d 1201 (Fed. Cir. 2009)
(en banc), the United States Court of Appeals for the Federal
Circuit (hereinafter, ``Federal Circuit'') held that the 120-
day period for filing a notice of appeal to the Court is
jurisdictional and not subject to equitable tolling. This
inflexible application of the time limit for appeal creates
sometimes harsh results.
The absence of any provision for a ``good cause'' extension
in section 7266(a) of title 38 also creates a disparity between
veterans appealing a decision to the Court and other appellants
in federal appeals courts because section 2107(c) of title 28
allows a limited ``good cause'' extension of the period for
appealing to a Federal circuit court of appeals.
Committee Bill. Section 18 of the Committee bill would
modify section 7266 of title 38 to authorize the Court of
Appeals for Veterans Claims to extend the 120-day period for
appealing a decision of the Board to the Court of Appeals for
Veterans Claims no more than an additional 120 days based on a
showing of ``good cause.''
It is the Committee's intent to amend section 7266(a) to
permit a limited ``good cause'' extension of the appeal period
so as to place veterans on equal footing with appellants in
other federal courts and prevent sometimes harsh results due to
the lack of such a period.
Matters concerning the existence of ``good cause'' for the
extension of the appeal filing period or the timeliness of a
motion for extension necessarily turn upon the facts of each
litigant's case and are therefore not reviewable under section
7292(a) and (d) of title 38, which preclude the Federal Circuit
from reviewing the Court of Appeals for Veterans Claims
decisions on factual matters or the application of law to the
facts of a case. Notwithstanding the clear jurisdictional
mandate of that statute, the Federal Circuit has at times
asserted authority to review all matters pertaining to the
Court of Appeals for Veterans Claims, irrespective of whether
the particular matter presented turned only upon the facts of a
particular case. See, e.g., Morris v. Principi, 239 F.3d 1292,
1294 (Fed. Cir. 2001); Maggitt v. West, 202 F.3d 1370, 1379-80
(Fed. Cir. 2000). Without addressing whether Congress condones
those actions, it is not the Committee's intent to open the
door to that type of review for good cause determinations
relating to filing a notice of appeal.
Sec. 19. Pilot program on participation of local and tribal governments
in improving quality of claims for disability compensation
submitted to Department of Veterans Affairs.
Section 19 of the Committee bill, which is derived from
S. 3517 as introduced, would create a pilot program on
collaboration with local and tribal governments to improve the
quality of claims for disability compensation.
Background. Although VA, local governments, and tribal
governments all seek to provide veterans with the benefits for
which they are eligible, coordination among these entities is
limited. This is especially true for VA's coordination efforts
with tribal governments, despite the fact that U.S. Census data
show that American Indians and Alaska Natives serve in the U.S.
military at a much higher rate than the general population.
Further still, according to a September 2006 analysis by VA's
Office of Policy and Planning, American Indian and Alaska
Native veterans are nearly 50 percent more likely than other
veterans to have a service-connected disability, and those
under age 65 are twice as likely to be unemployed, making their
receipt of health care, disability compensation, and other
benefits even more crucial.
VA currently serves the health care needs of American
Indians and Alaska Natives under a memorandum of understanding
with the Indian Health Service (hereinafter, ``IHS'') and
sharing agreements between the Veterans Health Administration
and federally recognized tribal governments. The approach of
collaborating with IHS and tribal governments through memoranda
of understanding and sharing agreements has shown some promise.
However, coordination between the Veterans Benefits
Administration and federally recognized tribal governments is
much more limited.
In recent years, Congress has authorized VA to operate
benefits programs and conduct outreach in a way that responds
to the practical realities of Indian Country, Alaska Native
villages, and Hawaiian Homelands. For example, because of
commercial lenders' reluctance to extend mortgage loans secured
by properties resting on Native American trust land, section
103 of Public Law 109-233, the Veterans' Housing Opportunity
and Benefits Improvement Act of 2006, made permanent VA's
authority to make housing loans directly to Native American
veterans. In addition, section 403 of Public Law 109-461, the
Veterans Benefits, Health Care, and Information Technology Act
of 2006, enabled Native American tribal governments to apply
for construction grants under VA's State Cemetery Grant
program, a program previously only open to States. The
Committee believes that further progress can be made through
stronger partnerships and greater cultural understanding
between VA and tribal organizations and the Native Hawaiian
community.
Committee Bill. Section 19 of the Committee bill, in a
freestanding provision, would require VA to establish and
implement a pilot program to study the feasibility and
advisability of entering into memorandums of understanding
(hereinafter, ``MOU'') with local governments and tribal
organizations in the provision of certain benefits to veterans.
VA would be required to enter into an MOU with at least two
tribal organizations. The program would seek to improve quality
of claims submitted for compensation and provide assistance to
veterans in submitting such claims.
The Committee recognizes that many local governments, as
well as some tribal governments, already operate paid and
volunteer services for veterans in their communities. Through
the type of collaboration envisioned by this section, those
service providers could work with VA to advance their shared
goals. It is the Committee's view that VA must collaborate with
local governments and federally recognized tribal governments
in order to more effectively and efficiently provide veterans'
benefits.
Sec. 20. Increase in rate of pension for disabled veterans married to
one another and both of whom require regular aid and
attendance.
Section 20 of the Committee bill would increase the benefit
paid to married couples when both members are veterans who
qualify for aid and attendance.
Background. Veterans of a period of war who meet income,
net worth, and other eligibility criteria are eligible to
receive a pension based upon need. The amount of the pension is
based upon the number of dependents of the veteran. Additional
benefits are paid if the veteran has a disability which results
in housebound status or need for aid and attendance. In
general, when a veteran is married to a veteran, the pension
benefits paid are the same as for a veteran who is married to a
non-veteran. However, in cases where one or both members of a
veteran couple is housebound and/or in need of aid and
attendance, the additional amounts paid are computed separately
for each veteran and added to the basic grant.
In 1998, section 8206 of Public Law 105-178, the
Transportation Equity Act for the 21st Century, increased the
VA benefit for a veteran who requires aid and attendance by
$600 per year. Because of the way the legislation was drafted,
the benefit was increased for only one of the veterans in those
rare cases where a veteran is married to a veteran and both
require aid and attendance. The legislative history of that law
does not indicate any intent to treat these spouses
differently. According to VA there are currently only 74 cases
in which this applies. Therefore, under current law, if a
veteran who is married to a veteran where both veterans qualify
for aid and attendance benefits, the benefit amount for one of
the spouses is $825 per year lower than for the other spouse.
Committee Bill. The Committee bill would increase the
benefit paid to married couples where both members of the
couple are veterans and both qualify for aid and attendance by
$825.00 per year. This amount represents the present value of
the $600 increase added in 1998.
Sec. 21. Automatic annual increase in rates of disability compensation
and dependency and indemnity compensation.
Section 21 of the Committee bill, which was accepted as an
amendment during Markup of the Committee bill, would require
that whenever there is an increase in benefit amounts payable
under title II of the Social Security Act, VA would
automatically increase the rates of disability compensation and
DIC, among other rates, by the same percentage and make it
effective on the same date.
Background. The service-connected disability compensation
program under chapter 11 of title 38, provides monthly cash
benefits to veterans who have disabilities incurred or
aggravated during active service in the Armed Forces. The
amount of compensation paid depends on the nature and severity
of a veteran's disability or combination of disabilities and
the extent to which the disability impairs earning capacity.
Certain veterans with more severe disabilities are also
eligible to receive additional compensation on behalf of the
veteran's spouse, children, and dependent parents.
Under chapter 13 of title 38, VA pays DIC to the survivors
of servicemembers or veterans who died on or after January 1,
1957, from a disease or injury incurred or aggravated during
military service. Survivors eligible for DIC include surviving
spouses, unmarried children under the age of 18, children age
18 or older who are permanently incapable of self-support,
children between the ages of 18 and 22 who are enrolled in
school, and certain needy parents.
Section 415(i) of title 42 provides for an automatic annual
cost-of-living adjustment (hereinafter, ``COLA'') for benefits
payable under title II of the Social Security Act based on the
annual increase in consumer prices. Title II Social Security
benefits are indexed to the Consumer Price Index for Urban Wage
Earners and Clerical Workers (hereinafter, ``CPI-W''), which is
published on a monthly basis by the Bureau of Labor Statistics.
The annual COLA increase is equivalent to the increase in the
CPI-W from the most recent period between the third quarter of
one calendar year to the third quarter of the next.
Currently, under section 5312 of title 38, there are
several VA benefits that receive automatic increases tied to
the annual adjustments in title II Social Security benefits.
These include pension benefits for indigent, wartime veterans
who are permanently and totally disabled due to a non-service-
connected condition, or over the age of 65, as well as their
surviving spouses and children, and DIC benefits for the
parents of a deceased veteran whose income is below a specified
threshold.
However, the majority of disability compensation and DIC
benefits paid by VA are not indexed to the CPI-W and do not
increase automatically when title II Social Security benefits
are increased. Instead, Congress regularly enacts an annual
cost-of-living adjustment to ensure that inflation does not
erode the purchasing power of VA benefits. Although Congress in
recent years has consistently enacted legislation on time so as
to provide benefit recipients with a COLA increase beginning
December 1 of each year, veterans service organizations have
expressed support for making the COLA automatic, as
demonstrated during legislative hearings of the Committee.
Committee Bill. Section 21 of the Committee bill would
amend section 5312 of title 38, so as to add a new subsection
(d)(1), which would require VA to increase the amounts of
certain VA benefits by the same percentage and effective on the
same date as adjustments made to title II Social Security
benefits pursuant to section 415(i) of title 42. Proposed new
subsection (d)(2) of section 5312 would specify the VA benefits
that would be covered by any annual COLA increase. The benefits
covered would be:
1. Basic compensation rates for veterans with service-
connected disabilities and the rates payable for certain severe
disabilities (section 1114 of title 38);
2. The allowance for spouses, children, and dependent
parents paid to service-connected disabled veterans rated 30
percent or more disabled (section 1115(1));
3. The annual clothing allowance paid to veterans whose
compensable disabilities require the use of prosthetic or
orthopedic appliances that tend to tear or wear out clothing or
veterans whose service-connected skin conditions require the
use of prescribed medication that causes irreparable damage to
outergarments (section 1162); and
4. Dependency and indemnity compensation paid to:
(a) surviving spouses of veterans whose deaths were
service-connected (section 1311);
(b) surviving spouses for dependent children below
the age of 18 (sections 1313(a) and 1314);
(c) surviving spouses who are so disabled that they
need aid and attendance or are permanently housebound
(section 1311(i) and 1311(d));
(d) surviving spouses covered under section 1318 of
title 38; and
(e) the children of veterans whose deaths were
service-connected if no surviving spouse is entitled to
DIC, the child is age 18 through 22 and attending an
approved educational institution, or the child is age
18 or over and became permanently incapable of self-
support prior to reaching age 18 (section 1313).
Proposed new subsection (d)(3) of section 5312 would
require VA to publish any increases under this new authority in
the Federal Register.
The effective date of section 21 of the Committee bill
would be the first day of the first calendar year that begins
after the date of enactment.
Sec. 22. Action plan to improve correlation between employee pay and
performance.
Section 22 of the Committee bill, which was accepted as an
amendment during Markup of the Committee bill, would require VA
to develop an action plan for improving the correlation between
the pay, advancement, and rewards of VA employees and their job
performance.
Background. In July 2010, the United States Office of
Personnel Management (hereinafter, ``OPM'') released the
results from the 2010 Federal Employee Viewpoint Survey. The
results suggest that VA employees do not believe there is a
strong correlation between job performance and pay, awards, and
promotions. For example, of the VA employees who responded to
the survey, 38.8 percent disagreed or strongly disagreed with
the notion that ``[a]wards in my work unit depend on how well
employees perform their jobs;'' 39.0 percent disagreed or
strongly disagreed with the notion that, ``[i]n my work unit,
differences in performance are recognized in a meaningful
way;'' 45.4 percent disagreed or strongly disagreed with the
notion that ``[p]romotions in my work unit are based on
merit;'' and 52.6 percent disagreed or strongly disagreed with
the notion that ``[p]ay raises depend on how well employees
perform their jobs.''
In that report, OPM provided this guidance to agencies:
``Collecting and analyzing survey results is just the first
step in moving agencies towards greater effectiveness. Taking
action on the results is the most important step in the
process.'' To that end, OPM recommended that agencies develop
an action plan, which ``will state the objectives, action to be
taken, outcome measures, accountable personnel and improvement
targets, and will describe how progress will be tracked.''
Following that advice, leaders at OPM announced that, in
response to the survey responses provided by OPM employees,
they would develop a ```corporate action plan' to address
employees' biggest concerns.''
Committee Bill. Section 22 of the Committee bill, in a
freestanding provision, would require VA, within 90 days after
the date of enactment, to submit to Congress an action plan for
improving the correlation between the pay, advancement, and
rewards of VA employees and their job performance. The action
plan would be required to have a particular focus on employees
who perform work in relation to processing and adjudicating
claims for disability compensation and dependency and indemnity
compensation. In addition, the action plan must include
specific objectives, planned actions, metrics for measuring
improvements, and methods for tracking progress. It must also
include any legislative changes that VA considers necessary in
order for VA to improve the correlation between pay,
advancement, and rewards and job performance.
Committee Bill Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate, the Committee, based on
information supplied by the CBO, estimates that enactment of
the Committee bill would, relative to current law, increase
direct spending by $393 million over the 2011-2015 period and
$2.1 billion over the 2011-2020 period. S. 3517 would add $5
million in discretionary spending over the 2011-2015 period,
subject to appropriation of the necessary amounts. Enactment of
the Committee bill would not affect the budget of state, local
or tribal governments.
The cost estimate provided by CBO, setting forth a detailed
breakdown of costs, follows:
Congressional Budget Office,
Washington, DC, November 19, 2010.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 3517, the Claims
Processing Improvement Act of 2010.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Dwayne M.
Wright.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
S. 3517--Claims Processing Improvement Act of 2010
Summary: S. 3517 would modify the procedures used by the
Department of Veterans Affairs (VA) to process and adjudicate
compensation and pension claims. S. 3517 also would make
changes to the compensation and pension programs and institute
a pilot program for local and tribal governments. CBO estimates
that enacting S. 3517 would increase direct spending by $393
million over the 2011-2015 period and about $2.1 billion over
the 2011-2020 period. CBO also estimates that implementing
S. 3517 would add $5 million in discretionary spending over the
2011-2015 period, subject to appropriation of the necessary
amounts. Enacting the bill would not affect revenues.
Pay-as-you-go procedures apply because enacting the
legislation would affect direct spending.
S. 3517 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 3517 is shown in the following table.
The costs of this legislation fall within budget function 700
(veterans benefits and services).
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------------------------------------------
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2011-2015 2011-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING
Private Medical Opinions
Estimated Budget Authority.............................. 5 21 53 102 158 217 278 340 405 472 339 2,051
Estimated Outlays....................................... 5 21 53 102 158 217 278 340 405 472 339 2,051
Intermediate Disability Rating
Estimated Budget Authority.............................. 15 16 21 1 1 2 2 2 2 2 54 64
Estimated Outlays....................................... 15 16 21 1 1 2 2 2 2 2 54 64
-------------------------------------------------------------------------------------------
Total Changes
Estimated Budget Authority.......................... 20 37 74 103 159 219 280 342 407 474 393 2,115
Estimated Outlays................................... 20 37 74 103 159 219 280 342 407 474 393 2,115
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: In addition to the changes in direct spending shown above, S.3517 also would increase discretionary spending by $5 million over the 2011-2015
period for a disability compensation pilot program and various administrative provisions, subject to appropriation of the necessary amounts.
Basis of estimate: For the purposes of this estimate, CBO
assumes S. 3517 will be enacted by the end of calendar year
2010.
Direct Spending
S. 3517 would make several changes to the VA disability
compensation and pensions programs. CBO estimates that enacting
S. 3517 would increase direct spending by $2.1 billion over the
2011-2020 period.
Private Medical Opinions. Section 5 would allow medical
opinions from private practitioners to be used to support
claims for VA disability ratings. VA would be required to give
such medical opinions the same deference as opinions provided
by VA physicians. Under current law, a medical examination
conducted by a physician is the main factor in assigning a
disability rating, though other evidence can be used to support
a claim. CBO estimates that enacting section 5 would increase
direct spending by $2.1 billion over the 2011-2020 period.
CBO expects that mental disorders and other disabilities
where the diagnosis is in part subjective would comprise the
majority of the cases where private medical opinions would be
sought by veterans, and that 25 percent of veterans with such
disabilities would provide credible private opinions. Based on
a review of historical data on disability ratings, CBO
estimates that veterans providing a private medical opinion
would see a 10 percentage- point increase in their disability
rating--moving from an average disability rating of 40 percent
to 50 percent--over what they would have otherwise received.
That change would increase a veteran's monthly benefit by $250
in 2011. CBO does not expect the number of veterans receiving
disability compensation to be significantly affected by this
provision.
New Cases. In 2009, VA added 212,000 veterans to the
disability compensation rolls. CBO estimates that there will be
about 215,000 new accessions in 2011, growing to about 243,000
in 2020. Based on information from VA, mental and other
disorders (such as back injuries) where a subjective diagnosis
exists account for about 10 percent of the disabilities for
which a rating for compensation is provided. Assuming a gradual
phase-in of the use of private opinions, CBO estimates that in
2011 about 1,000 new veterans would receive higher disability
ratings, and that this number would increase to about 6,100 in
2020. After accounting for mortality and inflation, CBO
estimates that section 5 would increase direct spending for new
accessions by $110 million over the 2011-2015 period and $640
million over the 2011-2020 period.
Veterans Currently On the Rolls. Under section 5, veterans
who are currently receiving veterans' disability compensation
also would be eligible for an increase in their disability
ratings. About 3.2 million veterans currently receive veterans'
disability compensation and about 15 percent return each year
to be re-rated. After accounting for the factors described
above, CBO estimates that the population of veterans on the
rolls who would receive an increased rating would be about
2,400 in 2011, increasing to about 13,200 in 2020. Therefore,
CBO estimates that section 5 would increase direct spending for
veterans currently on the rolls by about $1.4 billion over the
2011-2020 period.
Intermediate Disability Rating. Section 2 would require VA
to assign a temporary disability rating to any veteran who
submits a claim for multiple disabilities that includes at
least one disability that can be rated immediately. VA
currently has the authority to assign such partial ratings but
because of the large backlog of claims it has used this
authority sparingly. Most veterans with multiple disabilities
have to wait until their claim is fully adjudicated--often a
year or more--before receiving disability compensation. When
such veterans begin receiving monthly compensation payments,
they also receive a retroactive payment that covers the months
back to the date of their application.
Under section 2, CBO expects that such veterans would begin
receiving partial disability compensation payments in the year
in which they file a claim. That would increase costs in that
first year (because of the earlier payments) and decrease costs
in a subsequent year (because of reduced retroactive payments).
CBO expects that costs would increase substantially for the
first three years, as VA gradually phased in the process of
assigning intermediate ratings more widely over that period.
Once that process was fully phased in, CBO expects those
increased costs would be largely offset by the reduced
retroactive payments.
The population that would generate additional spending
would be veterans filing claims for the first time. Based on
information from VA, CBO estimates that about 50 percent of all
new claims for a disability rating are seeking a rating based
on multiple disabilities and that about 25 percent of those
cases (12.5 percent of all new claims) have at least one
disability that could be decided immediately. In 2007, VA
assigned temporary ratings to 33 cases. Under section 2, CBO
expects that VA would eventually assign intermediate ratings to
half of the eligible population--about 6 percent of new cases
each year.
In 2009, there were about 212,000 new accessions to the
disability compensation rolls. CBO estimates that there will be
about 215,000 new accessions in 2011, growing to about 243,000
in 2020. After accounting for a three-year phase-in and the
number of veterans with a disability that could be rated
immediately, CBO estimates that about 4,000 new veterans in
2011 would receive an intermediate rating (and, therefore, a
payment in 2011), increasing to about 15,000 in 2020. The
average disability rating for new cases is 40 percent (about
$600 per month--$7,200 annually--in 2010) and CBO assumes that
these veterans would receive that rating. After accounting for
mortality and inflation, CBO estimates that section 2 would
increase direct spending by $64 million over the 2011-2020
period.
Increased Pension for Married Veterans Requiring Aid and
Attendance (A&A). Section 20 would increase the annual pension
payable to married veterans when both spouses require regular
A&A. Under current law, when two married veterans are in need
of regular A&A, they are eligible to receive an annual combined
pension of $30,480. Section 20 would increase that combined
annual payment amount to $31,305.
There are currently about 75 married couples who are both
receiving pensions and both in need of regular A&A. Based on
information from VA, CBO estimates that the number of eligible
couples will decline slightly over the next decade. Therefore,
we estimate that enacting section 20 would increase direct
spending by $500,000 over the 2011-2020 period.
Automatic Cost-of-Living Adjustment (COLA). Section 21
would automatically increase the amounts payable to veterans
for disability compensation and to their survivors for
dependency and indemnity compensation by the same COLA payable
to Social Security recipients each year. Currently, this
increase is authorized on an annual basis. The COLA that would
be authorized by this bill is assumed in CBO's baseline,
consistent with section 257 of the Balanced Budget and
Emergency Deficit Control Act, and savings from rounding it
down were achieved by the Balanced Budget Act of 1997 (Public
Law 105-33) as extended by the Veterans Benefits Act of 2003
(Public Law 108-183); therefore, enacting section 21 would have
no budgetary effect relative to the baseline.
Spending Subject to Appropriation
S. 3517 includes several provisions that would have a small
impact on discretionary spending. CBO estimates that
implementing those provisions would cost $5 million over the
2011-2015 period, subject to appropriation of the necessary
amounts.
Pilot Program for Local and Tribal Governments. Section 19
would require VA to conduct a pilot program to determine the
feasibility of entering into memorandums of understanding
(MOUs) with local and tribal organizations intended to help
facilitate the claims application process. VA would be required
to enter into such MOUs with at least two tribal organizations.
Assuming that VA entered into two such agreements, CBO expects
that implementing those agreements would require VA to hire a
total of four additional employees to provide on-site
assistance--two for each tribal organization. Based on
information from VA, CBO estimates that implementing section 19
would cost less than $500,000 per year and about $2 million
over the 2011-2015 period, subject to the availability of
appropriated funds.
Other Provisions. Several sections of S. 3517 would make
changes to the claims adjudication process at VA, both in terms
of the filing of claims and VA's method for adjudication and
the appeals process when a veteran disagrees with a VA
decision. While most of those changes would have either an
insignificant budget impact or no impact at all, CBO expects
that implementing all of them would require VA to hire
additional employees. Thus, CBO estimates that those provisions
would cost about $3 million over the 2011-2015 period, subject
to the availability of appropriated funds.
Pay-As-You-Go Considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget reporting and enforcement
procedures for legislation affecting direct spending or
revenues. S. 3517 would increase direct spending by increasing
the amount of disability compensation that certain veterans
would be eligible to receive. The changes in outlays that are
subject to those pay-as-you-go procedures are shown in the
following table.
CBO Estimate of Pay-As-You-Go Effects for S.3517 as ordered reported by the Senate Committee on Veterans' Affairs on August 5, 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------------------------------------------
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2011-2015 2011-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE IN THE DEFICIT
Statutory Pay-As-You-Go Impact.............................. 20 37 74 103 159 219 280 342 407 474 393 2,115
--------------------------------------------------------------------------------------------------------------------------------------------------------
Intergovernmental and private-sector impact: S. 3517
contains no intergovernmental mandates as defined in UMRA and
would impose no costs on state, local, or tribal governments.
Estimate prepared by: Federal Costs: Dwayne M. Wright;
Impact on State, Local, and Tribal Governments: Lisa Ramirez-
Branum; Impact on the Private Sector: Elizabeth Bass.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee on Veterans'
Affairs has made an evaluation of the regulatory impact that
would be incurred in carrying out the Committee bill. The
Committee finds that the Committee bill would not entail any
regulation of individuals or businesses or result in any impact
on the personal privacy of any individuals and that the
paperwork resulting from enactment would be minimal.
Tabulation of Votes Cast in Committee
In compliance with paragraph 7 of rule XXVI of the Standing
Rules of the Senate, the following is a tabulation of votes
cast in person or by proxy by members of the Committee on
Veterans' Affairs at its August 5, 2010, meeting. Three
amendments were offered to S. 3517. All three were accepted by
the Chairman and the bill was ordered favorably reported.
Agency Report
On July 14, 2010, Michael Walcoff, Acting Under Secretary
for Benefits, Veterans Benefits Administration, Department of
Veterans Affairs, appeared before the Committee and submitted
testimony on S. 3517, among other issues. Excerpts from this
statement are reprinted below:
STATEMENT OF MICHAEL WALCOFF, ACTING UNDER SECRETARY FOR BENEFITS,
VETERANS BENEFITS ADMINISTRATION, U.S. DEPARTMENT OF VETERANS AFFAIRS
Chairman Akaka, Ranking Member Burr, and Members of the
Committee:
Thank you for the opportunity to appear before you today to
discuss the Department of Veterans Affairs (VA) disability
compensation and pension programs. Accompanying me today are
Ms. Diana Rubens, Associate Deputy Under Secretary for Field
Operations; Mr. Tom Pamperin, Associate Deputy Under Secretary
for Policy and Program Management; Mr. Mark Bologna, Director
for the Veterans Benefits Management System (VBMS) initiative;
Dr. Peter Levin, Senior Advisor to the Secretary and Chief
Technology Officer; and Mr. Richard Hipolit, Assistant General
Counsel. My testimony will provide preliminary views on the
Chairman's bill, the Claims Processing Improvement Act of 2010.
I will also focus on the Secretary's goal to eliminate the
claims backlog by 2015 so as to ensure timely and accurate
delivery of benefits and services to our Veterans and their
families.
* * * * * * *
S. 3517: THE CLAIMS PROCESSING IMPROVEMENT ACT OF 2010
First, let me commend you Mr. Chairman and your staff for
your efforts to put forward ideas on how to improve the
disability claims processing system. I would like to
acknowledge your work and we appreciate your staff keeping the
Department informed as you developed the legislation.
S. 3517, the ``Claims Processing Improvement Act of 2010,''
would establish a pilot program on evaluation and rating of
service-connected musculoskeletal disabilities and would revise
a number of statutes affecting VA's adjudication of claims and
appeals. The Department is in the final stages of coordinating
the Administration's full position and developing cost
estimates on the legislation. However, I will provide you with
a brief overview of VA's initial reactions to Title I of the
bill and, with your permission, we will provide more detailed
information on the entire bill in writing for the record.
* * * * * * *
Title II of this bill addresses several matters relating to
the adjudication process for claims and appeals. We appreciate
the inclusion of a number of provisions drawn from Secretary
Shinseki's proposed legislation, known as the Veterans Benefit
Programs Improvement Act of 2010, which he submitted to
Congress for consideration on May 26, 2010. We look forward to
the opportunity to provide our views on the legislation in the
coming weeks.
------
------
The Secretary of Veterans Affairs,
Washington, DC, August 2, 2010.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I write to provide the views and cost
estimates of the Department of Veterans Affairs (VA) on
S. 3517, the ``Claims Processing Improvement Act of 2010.''
Although this bill was included on the agenda for a July 14,
2010, oversight hearing before the Senate Committee on
Veterans' Affairs, VA was unable to provide full views in time
for that hearing. This bill contains legislation of
considerable significance to VA, and we appreciate your
allowing us to submit this letter to supplement VA's testimony.
First, let me commend you, Mr. Chairman, and your staff for
your efforts to put forward ideas on how to improve the
disability claims processing system. I would like to
acknowledge your work, and we appreciate your staff keeping the
Department informed as you developed the legislation.
The ``Claims Processing Improvement Act of 2010'' would
establish a pilot program on evaluation and rating of service-
connected musculoskeletal disabilities and would revise a
number of statutes affecting VA's adjudication of claims and
appeals. VA supports the goals of many of the sections in this
bill that would enhance the processing of claims and appeals.
However, VA also has significant concerns regarding a number of
provisions in the bill as discussed below.
* * * * * * *
Sec. 201
Section 201 would provide for the expeditious partial
adjudication of a disability compensation claim for multiple
conditions, when one or more of the conditions could be
assigned a disability rating without further development. VA
supports the underlying goal of this section as a means to
expedite payment of disability compensation to a Veteran, even
though it may be less than the eventual total monthly payment.
In fact, VA has implemented a policy to this effect in the
Compensation and Pension Service Procedures Manual. Because
this procedure is already part of VA's standard operating
procedure, it is unnecessary to mandate this procedure by law.
We anticipate that there would be no costs associated with the
enactment of this section.
Sec. 202
Section 202 would attempt to clarify that the Secretary is
required to provide claimants notice of additional information
and evidence necessary to substantiate a claim, only if
additional information and evidence is required to support the
claim. We support the purpose of clarifying that notice is not
required when VA has sufficient information and evidence to
decide the claim. However, the wording of this section is
confusing and may not lead to the desired result stated in its
title. We believe the purpose of this provision could be
achieved by retaining the existing language in 38 U.S.C.
Sec. 5103(a) and adding a sentence stating that VA is not
required to provide notice if no additional information or
evidence is required. VA has already interpreted the current
statute as providing such a result in its proposed rulemaking
to amend 38 CFR Sec. 3.159, which would not require VA to
provide notice where the evidence is already sufficient to
award all benefits sought. We anticipate that there would be no
costs associated with the enactment of this section.
Sec. 203
Section 203 would require that the same deference be given
to private medical opinions as to VA medical opinions. The
section would further require that, if VA requests a VA medical
opinion in response to a private medical opinion, then the
professional qualifications of the VA health care provider must
be equal to or greater than those of the provider of the
private medical opinion.
VA does not support this section of the bill as it assumes
that VA automatically gives more weight to opinions from VA
clinicians as opposed to private clinicians, regardless of the
content of the opinions at issue. This is simply not the case.
VA adjudicators must weigh competing medical opinions, whether
from a VA or private clinician, based on a variety of factors,
including the discussion of relevant facts and pertinent
medical history, the relative thoroughness of the opinions, and
the clarity of analysis, among other things. The bill language
could be construed to require VA by law to assign equal
probative value to private medical opinions regardless of these
factors. The assignment of probative value, however, is an
essential part of the adjudicative function that involves the
adjudicator looking at the reasoning provided by all
clinicians, both VA and private, concerning a submitted medical
opinion, and then judging the credibility and determining the
weight to be assigned to the evidence. If this process were
merely to become one of adding up the number of favorable
versus the unfavorable medical opinions, there is a serious
risk that harm would occur to both Veterans and VA.
VA further objects to the provision of this section that
would require that, when a VA health care provider is
responding to a private medical opinion, the professional
qualifications of the VA health care provider be equal to or
greater than those of the private health care provider. In many
circumstances it may not be evident what VA health care
provider would have ``professional qualifications that are at
least equal to the qualifications of the provider of the
private medical opinion''--particularly in situations where a
complex medical condition is at issue. Furthermore, it would be
difficult for VA to assess the qualifications of those who
provide private medical opinions because private clinicians
often do not provide a curriculum vitae or other statement
outlining their professional qualifications. In fact, many
times the signature line, which may include a notation such as
``M.D.,'' ``N.P.,'' or ``F.A.C.S.,'' would be the only
indicator of their professional status.
We anticipate that there would be no costs associated with
the enactment of this section.
Sec. 204
Section 204 would direct the Secretary to establish a
process to identify whether claims could be quickly adjudicated
or a whether a temporary disability rating could be assigned.
As part of this process, VA would be required to assign
employees who are experienced in the processing of claims to
carry out a preliminary review of all initial disability
compensation claims submitted to VA. Priority adjudication
would be authorized for certain disability compensation claims,
including claims of Veterans who are terminally ill, claims of
homeless claimants, claims of claimants suffering severe
financial hardship, and claims partially adjudicated under
section 1157(b) as proposed by section 201 of this bill. This
section would further provide VA the discretion to terminate
development of a claim at the request of the claimant, but
would still require VA to undertake any development necessary
to obtain any Federal records, medical examinations, or
opinions relevant to the claim. This section would also allow
VA to decide these claims based on all the evidence of record.
While VA supports the underlying purpose of section 204 to
identify claims that may be subject to quick adjudication, VA
does not believe that the structure of this process, including
the allocation of human resources, should be mandated by law.
VA regional offices are presently committed to processing
claims in as timely and consistent a manner as possible.
Flexibility in operations at a local level is necessary to
accomplish this goal. Mandating that experienced claims
processing personnel be employed in these positions may deprive
VA regional offices of needed flexibility in utilizing
experienced claims processing personnel and adjusting their
staffing in response to the natural ebb and flow of the claims
adjudication process. Adding this extra layer of review may
result in duplicative review of many claims and may
unnecessarily delay the claims of Veterans whose claims are
more complex or difficult to adjudicate. Further, we are
concerned that the proposed language, if not expressly limited
to claims processing by VA regional offices, could be construed
to potentially interfere with the current obligation of the
Board of Veterans' Appeals (Board) under 38 U.S.C. Sec. 7107 to
decide cases in docket order.
VA supports the provision that would allow VA to treat a
claim as fully developed upon notification that the claimant
has no further information or evidence to submit, subject to
VA's completion of any necessary development. VA does not
anticipate any costs associated with this section.
Sec. 205
Section 205 would require the Secretary, upon denying a
benefit, to provide the claimant a notice of decision that
includes: a statement of reasons for the decision, a summary of
the evidence relied upon in making the decision, and an
explanation of the procedure for obtaining appellate review.
Along with the notice of decision, the Secretary would be
required to provide the claimant a notice of disagreement (NOD)
form that, if completed and returned, would initiate appellate
review process. The content of the notice to be provided under
the proposal would be the same as that provided under current
law. A NOD form is not currently provided. VA has no objection
to this section, although we consider providing the NOD form
unnecessary in light of the explicit notice of appellate rights
already provided with VA claim decisions. We anticipate no
costs associated with section 205, beyond the cost of printing
the proposed NOD form.
Sec. 206
Section 206 would reduce the time period in which a
claimant could submit a NOD to initiate appellate review from
one year to 180 days from the issuance of the VA decision. This
section would also create a good cause exception that would
require VA to treat an untimely NOD as timely, if VA determines
that the claimant, legal guardian, or accredited
representative, attorney, or authorized agent filing the notice
has demonstrated ``good cause'' for the failure to timely file
and if the NOD is filed within 186 days after the initial 180-
day appeal period. This section would further authorize VA to
accept NODs by electronic means as well as through traditional
mail.
VA supports the portion of this section that would reduce
the time involved in processing appeals and provide a good
cause exception for certain untimely filings. VA believes that
the 180-day time frame is a sufficient period for a claimant or
representative to evaluate a VA decision and respond with a NOD
if the claimant decides to initiate an appeal. VA would,
however, recommend restructuring the ``good cause'' exception
as an extension request similar to that found in section 207
for the filing of a substantive appeal. Section 207 would allow
for an extension of the time to file a substantive appeal
provided that good cause is shown and the request is filed
within the initial 60-day period to file a substantive appeal.
As currently drafted, section 206 does not require that an
extension request be filed within the initial 180-day NOD
filing period. Requiring that extension requests be filed
within the initial 180-day filing period would allow the agency
of original jurisdiction (AOJ) to close an appeal 180 days
after a decision is issued, provided that an NOD or extension
request was not submitted. Without a requirement that extension
requests be filed within the initial 180-day filing period, the
AOJ would not be able to close an appeal until 366 days after
the initial AOJ decision was issued (180 days for the initial
NOD filing period and an additional 186 days for the extension
period). Therefore, to avoid further delay, we recommend that
the bill be revised to require that requests for extension of
the period to file an NOD be filed within the initial 180-day
filing period. We would also recommend limiting the extension
period to 180-days or less versus the current 186-day period.
VA does not support the provision in section 206 stating
that certain broadly described circumstances ``shall'' be
considered as relating to good cause. While VA has no objection
to the inclusion of a list of examples, VA believes that the
fact-specific determination as to what is considered ``good
cause'' should be left to the adjudicator and decided on a
case-by-case basis, not mandated by law. As written, this
provision seemingly would require VA to treat any linguistic
barrier or change in financial circumstances as good cause,
without regard to the degree of the barrier or change and
without regard to any mitigating factors.
Further, VA does not support the portion of section 206
that would extend the ``good cause exception'' to a Veteran's
accredited representative, attorney, or agent. Such
representatives are duty bound to provide competent
representation and to act with reasonable diligence and
promptness in representing claimants, which includes being
accountable for observing the various filing deadlines. Failing
in these duties may indicate misconduct or lack of competence
on the part of the representative, attorney, or agent. VA does
not anticipate any costs associated with this section.
Sec. 207
Section 207 would require a substantive appeal to be filed
within 60 days from the date of the mailing of a ``post-notice
of disagreement decision.'' This time period could be extended
an additional 60 days for good cause shown. The substantive
appeal must identify the alleged specific errors of fact or law
made by the AOJ. If the claimant does not file a substantive
appeal in accordance with this section, the AOJ would be
required to dismiss the appeal and notify the claimant. The
dismissal notice would have to explain that the Board may
review the dismissal, and such a request for review must be
made within 60 days.
VA supports the 60-day time period for filing a substantive
appeal as is provided under the current law. However, similar
to section 206, section 207 includes a list of broad
circumstances that ``shall'' be considered ``good cause.'' As
written, this could be construed as placing a mandatory
requirement on VA to always consider certain situations to be
good cause. While VA has no objection to the inclusion of a
list of examples, VA believes that the fact-specific
determination as to what is considered ``good cause'' should be
left to the adjudicator. VA is in the process of developing
costs for this section.
Sec. 208
Section 208 would replace the Secretary's obligation to
provide a statement of the case with an obligation to provide a
``post-notice of disagreement decision'' and would clarify that
VA's action is a decision on the claim. This decision would be
written in plain language and contain a description of the
specific facts in the case which support the decision
including, if applicable, an assessment as to the credibility
of any lay evidence pertinent to the issues with which
disagreement has been expressed; a citation to pertinent laws
and regulations that support the decision; the decision on each
issue and a summary of the reasons why the evidence relied upon
supports such decision under the laws and regulations applied;
and the date by which a substantive appeal must be filed in
order to obtain further review of the decision. The post-notice
of disagreement decision is different from the statement of the
case in that it has the additional requirements that the
decision include a discussion of the specific facts supporting
the decision and an assessment as to the credibility of any lay
evidence pertinent to the issue, that the decision be written
in plain language, and that the decision contain the deadline
to file a substantive appeal.
While VA generally has no objection to renaming the
statement of the case, VA believes that the requirement that
these post-notice of disagreement decisions be written in
``plain language'' is very subjective and could result in an
increase in appeals that would further delay the adjudication
of claims. We anticipate no costs associated with this section.
Sec. 209
Section 209 would provide that a claimant automatically
waives the review by the AOJ of new evidence submitted after
the substantive appeal is filed, so that such evidence would be
subject to initial review by the Board unless the claimant, or
the claimant's representative, submits a written request, with
the evidence or within 30 days of submitting the evidence, that
the AOJ review such evidence.
VA generally supports this section because it would allow
AOJs to spend less time responding, through supplemental
statements of the case, to appellants who submit additional
evidence following the filing of a substantive appeal and would
allow the Board to avoid time-consuming remands when the
appellant submits evidence directly to the Board. We believe
that this would reduce the time spent processing appeals and
thereby provide final decisions to Veterans more quickly.
VA's only concern with this section is the provision that
permits a request for AOJ review to be ``made within 30 days of
the submittal'' of evidence. Providing a 30-day period to
submit a request for AOJ review would require the AOJ in many
cases to hold the case for at least 30 additional days
following the receipt of evidence to determine whether a
request for AOJ review is going to be filed before forwarding
the case to the Board. Moreover, if an appellant submits
evidence in piecemeal fashion after filing a substantive
appeal, the AOJ would be forced to hold the case pending the
expiration of multiple 30-day periods. Requiring that the
request for AOJ review be filed contemporaneously with the
evidence would enhance efficiency and reduce delay in the
appellate process. We anticipate that there would be no
mandatory or discretionary costs associated with this section.
Sec. 210
Section 210 would allow the Board to determine the most
expeditious location for and type of hearing (i.e., an in-
person hearing or a video conference hearing) to afford an
appellant, unless the appellant demonstrates good cause or
special circumstances to warrant another location or type of
hearing. VA supports enactment of section 210 as it would
improve efficiency and speed claim adjudications. We anticipate
that this section would result in no mandatory or discretionary
costs or savings.
Sec. 211
Section 211 of the draft bill would require that the Court
of Appeals for Veterans Claims (Veterans Court) decide every
issue raised on appeal before remanding an issue for
readjudication. VA takes no position on this provision as it
directly pertains to the operation of the Veterans Court. We do
not anticipate that there would be any costs associated with
this section.
Sec. 212
Section 212 would authorize the Veterans Court to extend
the 120-day time period for filing a notice of appeal for an
additional period not to exceed 120 days upon a written request
by the appellant filed not later than 120 days after expiration
of the initial appeal period and a showing of good cause. VA
supports this section of the proposed bill and anticipates that
there would be no costs associated with this section.
Sec. 213
Section 213 would require the Secretary of Veterans Affairs
to carry out a pilot program to assess the feasibility and
advisability of entering into memorandums of understanding with
local governments and tribal organizations to improve the
quality of compensation claims submitted under chapter 11of
title 38, United States Code, and to provide assistance to
Veterans who may be eligible for such compensation in
submitting such claims. VA is unable to provide views on the
proposed pilot program or estimate the costs associated with
enactment of section 213 as the purpose and intent of this
section is unclear.
Thank you for the opportunity to provide the Department's
views on this legislation, and again I commend you and your
staff for your efforts to put forward proposals to improve the
disability claims processing system.
I look forward to continuing to work together with you on
our shared goal of a disability claims processing system that
provides accurate and timely decisions to our Nation's
Veterans. Thank you for your ongoing support of our mission.
The Office of Management and Budget has advised that there
is no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
Eric K. Shinseki.
------
The Secretary of Veterans Affairs,
Washington, DC, July 30, 2010.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am pleased to provide the Committee
with the views of the Department of Veterans Affairs (VA) on
twelve of the thirteen bills listed in your May 21, 2010,
letter. In addition, we are providing cost estimates for three
bills about which we testified at the Committee's May 19, 2010,
hearing but for which we were unable to develop cost estimates
in time for that hearing. We will provide views and costs on
S. 3486 to the Committee in a separate letter.
* * * * * * *
S. 3348
S. 3348 would require that certain misfiled documents be
treated as motions for reconsideration of decisions of the
Board of Veterans' Appeals (Board). A document so treated would
be a document that expresses disagreement with a Board
decision, is filed with the Board or the VA agency of original
jurisdiction within 120 days after the Board issues the
decision, and is filed by a person who is adversely affected by
the Board decision but has not timely filed a notice of appeal
with the United States Court of Appeals for Veterans Claims
(Veterans Court). Such a document would not be treated as a
motion for reconsideration if the Board or the agency of
original jurisdiction determines that the document expresses an
intent to appeal the Board decision to the Veterans Court and
forwards the document to the Veterans Court, and the court
receives the document within 120 days after the Board issued
the decision.
VA objects to the bill for two reasons. First, it would
require the Board to decide motions for reconsideration of
decisions without any meaningful basis for such
reconsideration. This is because the bill would allow
reconsideration of previously final decisions based on nothing
more than a mere expression of disagreement, rather than based
on the current reconsideration standard of obvious error of
fact or law. Second, by requiring VA to make an initial
determination as to whether a notice of appeal was filed in a
case, the bill would place VA in the unprecedented position of
determining whether a particular case falls within the
jurisdiction of the Veterans Court, a superior tribunal. The
additional activity that S. 3348 would require could
potentially burden an already overburdened adjudication system
and introduce uncertainty as to the finality of Board
decisions.
We believe that legislation recently proposed by VA that
would authorize the Veterans Court to extend the 120-day period
for appealing a Board decision on a showing of good cause
presents a better solution for appellants who are unable to
correctly file a notice of appeal of a Board decision. Under
VA's proposal, the Veterans Court would determine whether the
facts and circumstances of a particular case justify an
extension of the statutory time period for filing an appeal,
and the Board would not have to decide a case a second time
with no clearly discernible benefit flowing to the Veteran.
Concerning costs, the Board processes between 800 and 900
motions for reconsideration each year at a cost of
approximately $587,000. The Board cannot predict the number of
motions for reconsideration it would have to decide each year
under the bill because the proposed standard involves too many
variables. However, because S. 3348 would potentially treat all
expressions of disagreement filed within the 120-day period for
appealing a Board decision as motions for reconsideration, it
is reasonable to conclude that the number of such motions
decided would increase significantly along with VA's costs in
issuing such decisions.
* * * * * * *
S. 3367
S. 3367 would increase from $8,911 to $31,305 the maximum
annual rate of pension for two disabled Veterans married to one
another when both are in need of regular aid and attendance
currently prescribed by section 1521(f)(2) of title 38, United
States Code. This bill would have the effect of amending the
law governing improved pension to prospectively establish a
pension rate for two Veterans married to one another, both of
whom are in need of aid and attendance, at the rate that would
have been payable had 38 U.S.C. Sec. 1521(f)(2) been amended in
1998 to provide a $600 increase for each Veteran, rather than a
single $600 increase for the two Veterans, and the increased
rate had subsequently been adjusted by annual cost of living
adjustments. VA supports this bill as an equitable approach to
meeting the needs of severely disabled Veterans, subject to
Congress identifying offsets for the additional costs
identified below. However, VA has a technical concern with this
bill. It would update in accordance with current pension rates
only one of the rates specified in section 1521(f)(2). The
multitude of other pension rates prescribed by section 1521
would continue to be those that were in effect years ago. To
avoid confusion, should Congress decide to amend one of the
rates prescribed by section 1521(f)(2), it should also update
all the other rates prescribed in section 1521 to account for
past cost-of-living adjustments.
Because there are only 74 pension awards for two Veterans
married to one another and both in need of regular aid and
attendance, VA estimates the cost of this bill, if enacted,
would be $733,000 in the first year, $3.7 million over 5 years,
and $8 million over 10 years. VA has determined that there
would be no additional administrative or full-time employee
costs associated with this bill.
S. 3368
S. 3368 would authorize certain individuals and
organizations to sign an application for VA benefits on behalf
of claimants under 18 years of age, mentally incompetent, or
physically unable to sign the application form.
VA does not support this bill because it is unnecessary and
would place Veterans, their family members, and VA at a higher
risk for abuse and fraud. First, VA regulations currently
provide a process for initiating a claim without a traditional
signature. Section 3.2130 of title 38, Code of Federal
Regulations, requires VA to accept a signature by mark or
thumbprint if appropriately witnessed or certified by a notary
public or certain VA employees. This alternate process enables
claims to be filed by persons unable to sign an application.
Second, a claimant unable to sign an application for benefits
due to mental deficiency will likely be found incompetent to
handle his or her own VA benefit payments, which requires VA to
appoint a fiduciary, who would be qualified to sign application
forms for the claimant. Allowing persons not appointed as VA
fiduciaries to file claims for incompetent claimants would
increase the risk that VA benefits would be diverted from
claimants. For these reasons, we do not support S. 3368.
VA estimates that there would be no benefit costs or
administrative costs associated with this bill.
S. 3370
S. 3370 would amend 38 U.S.C. Sec. 5105(a), which directs
the Secretary of Veterans Affairs and the Commissioner of
Social Security to jointly prescribe forms for use by survivors
of members and former members of the uniformed services to
apply for benefits under both chapter 13 of title 38, United
States Code, and title II of the Social Security Act. Under
section 5105(b), when an application on such a form is filed
with either VA or the Social Security Administration (SSA), it
is deemed to be an application for benefits under both chapter
13 of title 38 and title II of the Social Security Act.
Accordingly, applicants for survivor benefits need file only
one of the prescribed forms with either agency to apply for
such benefits at both agencies.
The bill would authorize but no longer require VA and SSA
to jointly prescribe forms to apply for survivor benefits and,
more significantly, require VA and SSA to interpret an
application made on any form indicating an intent to apply for
survivor benefits filed with either agency as an application
for benefits under both chapter 13 of title 38, United States
Code, and title II of the Social Security Act. Requiring VA and
SSA to accept as an application for survivor benefits any
application that indicates an intent to file for such benefits
without regard to the application form would be inconsistent
with the concept embodied in 38 U.S.C. Sec. 5101(a) that a
claim for veterans benefits must be made by filing a claim ``in
the form prescribed by the Secretary.'' This requirement serves
the beneficial purpose of ensuring that a claim contains
sufficient information as specified in the claim form to permit
VA to efficiently adjudicate the claim. Permitting the filing
of ``any form'' to constitute a claim for survivor benefits
would condone use of a multitude of forms (for example, a VA
Form 21-4138, Statement in Support of Claim), that might
provide only minimal information and require inefficient follow
up inquiries from VA. Such a procedure would be inconsistent
with VA's efforts to improve the efficiency of claim
adjudications. For this reason, VA does not support S. 3370.
We estimate that there would be no cost associated with
S. 3370.
* * * * * * *
The Office of Management and Budget has advised that there
is no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
Eric K. Shinseki.
------
The Secretary of Veterans Affairs,
Washington, DC, October 1, 2010.
Hon. Daniel K. Akaka,
Chairman,
Committee on Veterans' Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am pleased to provide the Committee
with the views of the Department of Veterans Affairs (VA) on
five of the amendments agreed to at the Committee's August 5,
2010, markup.
automatic annual increase in rates of disability compensation and
dependency and indemnity compensation.
This amendment would provide for an automatic cost-of-
living increase in the rates of disability compensation for
Veterans with service-connected disabilities, and of dependency
and indemnity compensation (DIC) for the survivors of Veterans
whose deaths are service related, whenever there is such an
increase in Social Security benefits, and by the same
percentage as the percentage by which Social Security benefits
are increased. VA benefits would increase on the date Social
Security benefits are increased. VA supports enactment of this
amendment.
Since 1992, Congress has enacted annual increases in these
benefits in the same percentages as Social Security benefit
increases. Making the cost-of-living adjustments (COLAs)
automatic would simplify the annual rate adjustments for
compensation and DIC in the same manner that the process for
pension was simplified by indexing pension increases to Social
Security COLAs. VA believes the annual increases are necessary
and appropriate to provide continuous protection of the
affected benefits from the effects of inflation. The
beneficiaries deserve no less.
Because future COLA estimates are already included in the
baseline President's budget, this legislation would not result
in additional costs.
authority for retroactive effective date for awards of disability
compensation in connection with applications that are fully-developed
at submittal.
This amendment would amend 38 United States Code (U.S.C.)
Sec. 5110(b) to provide an effective date for an award of
disability compensation to a Veteran who submits an application
that sets forth a claim that is ``fully-developed'' as of the
date of submittal of the application. The effective date of
such an award would be fixed in accordance with the facts
found, but could not be earlier than the date one year earlier
than the date VA received the application. VA does not support
enactment of this amendment.
The availability of a retroactive effective date for an
award of disability compensation granted on a claim fully
developed when submitted would create an incentive for Veterans
to file fully developed claims. Submission of more fully
developed claims would free up resources at VA regional offices
to address the claim backlog. However, VA does not support this
amendment because it would penalize Veterans who, through no
fault of their own, are not able to submit all the evidence
necessary to decide the claim with the initial application.
This would lead to the inequitable result of Veterans with
similar disability claims receiving different compensation
amounts based on the extent of medical treatment they may have
received in the year prior to submission of their claims and
the types of information readily available to them. Further, it
would provide Veterans whose claims involve relatively simple
fact issues with a greater benefit than Veterans whose claims
are factually complex but no less meritorious.
We note that certain claimants already receive retroactive
benefits. Under 38 U.S.C. Sec. 5110(b)(1), if a Veteran files a
claim for disability compensation within one year of discharge
from military service, the effective date of an award will be
the day following the date of the Veteran's discharge. Under 38
U.S.C. Sec. 5110(b)(2), if a Veteran files a claim for
increased compensation within one year of the date the
disability increased, the effective date of an award may be
retroactive to the date of such increase. Entitlement to those
retroactive payments is based on the prompt filing of a claim,
which is generally within the claimant's control. Because
retroactive payments under this amendment may rest upon matters
beyond a claimant's control, it would create an inequity not
found in existing law. The creation of another category of
claimants, specifically those who submit a fully developed
claim, who are eligible for retroactive benefits also would add
more complexity to the adjudication process and significantly
increase benefit entitlement costs.
We cannot estimate costs without knowing how many fully-
developed claims would be submitted and the disability ratings
awarded to these Veterans.
processing of applications for relief from adjudication of mental
incompetence for certain purposes.
Under current law, VA has one year to process applications
for relief from restrictions on buying firearms imposed because
a person has been adjudicated as a mental defective or
committed to a mental institution. If VA fails to resolve a
claim for relief within 365 days, the claim is deemed denied
for purposes of judicial review of agency action. This
amendment would create a statutory provision specific to VA
that would require that such applications for relief be
processed not later than 180 days after receipt, and if VA
fails to ``resolve such application'' within 180 days, for any
reason, the application for relief would be deemed granted.
VA agrees that relief applications should be processed in a
timely manner. However, VA has great difficulty in adjudicating
cases of this type, which involve issues of public safety that
fall outside VA's mission. VA is concerned that this provision
could raise serious issues of public safety and potential
liability if a person whose restrictions are relieved on this
basis obtains firearms and causes death or injury. The
Committee should also consider the Department of Justice's
views regarding the legal and policy implications of this
provision.
requirement that bid savings on major medical facility projects of
department of veterans affairs be used for other major medical facility
construction projects of the department.
This amendment would modify 38 U.S.C. Sec. 8104(d) to state
that, ``[i]n any fiscal year, unobligated amounts in the
Construction, Major Projects account that are a direct result
of bid savings from a major medical facility project may only
be obligated for other major medical facility projects
authorized for that fiscal year or a previous fiscal year.'' VA
does not support enactment of this amendment.
VA is concerned that this amendment would limit a
Secretary's flexibility to apply construction dollars where he
or she deems them most needed. Specifically, the amendment
would restrict VA's ability to respond to emergent situations
as they arise. VA currently is allowed to use major
construction bid savings for any VA major construction project,
consistent with authorization and programming limitations
contained in chapter 81 of title 38, U.S.C. The amendment would
also add new fiscal year restrictions because bid savings could
only be used for projects authorized in the current fiscal year
or in a prior fiscal year. This would hamper the Secretary's
ability to use unobligated balances that are authorized in
future fiscal years to respond to new project needs in as
timely a manner as possible to optimize the infrastructure
serving our Nation's Veterans.
Congress already maintains close oversight and control over
major construction projects. VA projects may not move forward
without budgetary review and congressional authorization, and
the Department now consults with Congressional committees
regarding any substantial movement of funds. This amendment
would severely impede VA's ability to maintain flexibility in
major construction projects.
action plan to improve correlation between
employee pay and performance.
This amendment would require VA, in consultation with the
Director of the Office of Personnel Management, to submit to
Congress an action plan for improving the correlation between
pay, advancement, and rewards of VA employees with their job
performance. This amendment is specifically focused on VA
employees who process and adjudicate claims for compensation
under chapters 11 and 13 of title 38, U.S.C. (i.e., employees
who work within VA at the Veterans Benefits Administration
(VBA)), but would apply to all VA employees. While VA
appreciates the intent of this amendment, VA does not support
enactment.
VBA already has in place elaborate metrics for tracking the
adjudication of cases on which employee performance evaluations
are based. The performance management system that is already in
place for VBA, and for that matter, VA, provides the necessary
correlation between job performance and employee pay,
advancement and compensation as required by chapter 43 of title
5, U.S.C. This performance management system includes
performance standards that are aligned with VBA and VA's
corporate performance objectives and goals, and VA reviews and
updates this system, as needed. Additionally, chapter 45 of
title 5, U.S.C., provides VA authority to give awards to
employees--another mechanism to connect pay and performance.
Also, for General Schedule employees, VA can provide Quality
Step Increases to employees with the highest performance
rating.
This system, in conjunction with the existing professional
development opportunities that VA offers its employees,
effectively and appropriately aligns our employees'
professional contributions and accomplishments with their
compensation levels and rewards. Further, VA's senior executive
performance management system is certified by the Office of
Personnel Management and the Office of Management and Budget.
Certification requirements include alignment of performance
standards with VA's strategic goals and objectives. While this
amendment is expressly applicable to VBA employees, it would
apply to all VA employees. This approach is overly broad if
Congress' goal is to improve the efficiency of VA's claims
processing.
Given VBA already has a system in place for tracking the
adjudication of cases on which employee performance evaluations
are based, VA will be willing to work with Congress to provide
a briefing regarding the system currently in existence, rather
than create a new action plan as required by this legislation.
While the anticipated cost of preparing the action plan
described in this proposed legislation would likely be nominal,
the commitment of personnel resources and time would be
significant.
Thank you for the opportunity to provide the Department's
views on these amendments. I look forward to continuing to work
together with you on our shared goals of improving benefits and
services to our Nation's Veterans. Thank you for your ongoing
support of our mission.
The Office of Management and Budget has advised that there
is no objection to the submission of this report from the
standpoint of the Administration's program.
Sincerely,
Eric K. Shinseki.
------
------
------
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* * * * * * *
Changes in Existing Law
In compliance with rule XXVI paragraph 12 of the Standing
Rules of the Senate, changes in existing law made by the
Committee bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
Title 38. Veterans' Benefits
* * * * * * *
Part II. General Benefits
* * * * * * *
Chapter 11. Compensation for Service-Connected Disability or Death
* * * * * * *
Subchapter VI. General Compensation Provisions
* * * * * * *
SEC. 1157. COMBINATION OF CERTAIN RATINGS
(a) In General._The Secretary [The Secretary] shall provide
for the combination of ratings and pay compensation at the
rates prescribed in subchapter II of this chapter to those
veterans who served during a period of war and during any other
time, who have suffered disability in line of duty in each
period of service.
(b) Intermediate Assignment of Ratings.--(1) In the case of
a veteran who submits to the Secretary a claim for compensation
under this chapter for more than one condition and the
Secretary determines that a disability rating can be assigned
without further development for one or more conditions but not
all conditions in the claim, the Secretary shall--
(A) expeditiously assign a disability rating for the
condition or conditions that the Secretary determined
could be assigned without further development; and
(B) continue development of the remaining conditions.
(2) If the Secretary is able to assign a disability rating
for a condition described in paragraph (1)(B) with respect to a
claim, the Secretary shall assign such rating and combine such
rating with the rating or ratings previously assigned under
paragraph (1)(A) with respect to that claim.
(3) If the Secretary determines, after assigning a rating
for a condition under paragraph (1)(A), that further
development of the condition could result in assignment of a
higher rating, the Secretary shall continue development of such
condition and reassess the rating.
* * * * * * *
Chapter 15. Pension for Non-Service-Connected Disability or Death or
for Service
* * * * * * *
Subchapter II. Veterans' Pensions
* * * * * * *
NON-SERVICE-CONNECTED DISABILITY PENSION
SEC. 1521. VETERANS OF A PERIOD OF WAR
* * * * * * *
(f)(1) * * *
(2) If either such veteran is in need of regular aid
and attendance, the annual rate provided by paragraph
(1) of this subsection shall be $23,396. If both such
veterans are in need of regular aid and attendance,
such rate shall be [$30,480] $31,305.
* * * * * * *
Part IV. General Administrative Provisions
* * * * * * *
Chapter 51. Claims, Effective Dates, and Payments
SEC.
SUBCHAPTER I. CLAIMS
5100. DEFINITION OF ``CLAIMANT''.
* * * * * * *
5103A. DUTY TO ASSIST CLAIMANTS.
5103B. TREATMENT OF PRIVATE MEDICAL OPINIONS.
5103C. EXPEDITED REVIEW OF CLAIMS FOR DISABILITY COMPENSATION.
5103D. PROCEDURES FOR FULLY DEVELOPED CLAIMS.
* * * * * * *
Subchapter I. Claims
* * * * * * *
SEC. 5101. CLAIMS AND FORMS
(a)(1) A specific [A specific] claim in the form prescribed
by the Secretary (or jointly with the Commissioner of Social
Security, as prescribed by section 5105 of this title must be
filed in order for benefits to be paid or furnished to any
individual under the laws administered by the Secretary.
(2) If an individual has not attained the age of 18 years,
is mentally incompetent, or is physically unable to sign a
form, a form filed under paragraph (1) for the individual may
be signed by a court appointed representative or a person who
is responsible for the care of the individual, including a
spouse or other relative. If the individual is in the care of
an institution, the manager or principal officer of the
institution may sign the form.
(b) * * *
(c)(1) Any person who applies for, signs a form on behalf
of a person to apply for, or is in receipt of any compensation
or pension benefit under laws administered by the Secretary
shall, if requested by the Secretary, furnish the Secretary
with the social security number of such person, or TIN in the
case that the person is not an individual, and the social
security number of any dependent or beneficiary on whose
behalf, or based upon whom, such person applies for or is in
receipt of such benefit. A person is not required to furnish
the Secretary with a social security number for any person to
whom a social security number has not been assigned.
(2) The Secretary shall deny the application of or
terminate the payment of compensation or pension to a person
who fails to furnish the Secretary with a social security
number or TIN required to be furnished pursuant to paragraph
(1) of this subsection. The Secretary may thereafter reconsider
the application or reinstate payment of compensation or
pension, as the case may be, if such person furnishes the
Secretary with such social security number or TIN.
(3) * * *
(d) In this section:
(1) The term ``mentally incompetent'' with respect to
an individual means that the individual lacks the
mental capacity--
(A) to provide substantially accurate
information needed to complete a form; or
(B) to certify that the statements made on a
form are true and complete.
(2) The term ``TIN'' has the meaning given the term
in section 7701(a)(41) of the Internal Revenue Code of
1986.
* * * * * * *
SEC. 5103. NOTICE TO CLAIMANTS OF REQUIRED INFORMATION AND EVIDENCE
(a) Required information and evidence.--
(1) [Upon receipt of a complete or substantially
complete application, the Secretary shall notify the
claimant and the claimant's representative, if any, of
any information, and any medical or lay evidence, not
previously provided to the Secretary that is necessary
to substantiate the claim.] If the Secretary receives a
complete or substantially complete application that
does not include information or medical or lay evidence
not previously provided to the Secretary that is
necessary to substantiate the claim, the Secretary
shall, upon receipt of such application, notify the
claimant and the claimant's representative, if any,
that such information or evidence is necessary to
substantiate and grant the claim. As part of that
notice, the Secretary shall indicate which portion of
that information and evidence, if any, is to be
provided by the claimant and which portion, if any, the
Secretary, in accordance with section 5103A of this
title and any other applicable provisions of law, will
attempt to obtain on behalf of the claimant.
(2) * * *
(3) A notice provided under this subsection shall
inform a claimant, as the Secretary considers
appropriate with respect to the claimant's claim--
(A) of the rights of the claimant to
assistance under section 5103A of this title;
and
(B) if the claimant submits a private medical
opinion in support of a claim for disability
compensation, how such medical opinion will be
treated under section 5103B of this title.
* * * * * * *
SEC. 5103B. TREATMENT OF PRIVATE MEDICAL OPINIONS
(a) In General.--If a claimant submits a private medical
opinion in support of a claim for disability compensation in
accordance with standards established by the Secretary, such
opinion shall be treated by the Secretary with the same
deference as a medical opinion provided by a Department health
care provider.
(b) Supplemental Information.--(1) If a private medical
opinion submitted as described in subsection (a) is found by
the Secretary to be competent, credible, and probative, but
otherwise not entirely adequate for purposes of assigning a
disability rating or determining service-connection and the
Secretary determines a medical opinion from a Department health
care provider is necessary for such purposes, the Secretary
shall obtain from an appropriate Department health care
provider (as determined pursuant to the standards described in
subsection (a)) a medical opinion that is adequate for such
purposes.
(2) If a private medical opinion submitted as described in
subsection (a) addresses a matter relevant to the claim
described in such subsection and such matter is within an area
of expertise of the provider of such opinion, any opinion
obtained by the Secretary under paragraph (1) of this
subsection that addresses the same matter shall, to the extent
feasible, be obtained from a health care provider of the
Department that has expertise in that area.
(c) Department Health Care Provider Defined.--In this
section, the term ``Department health care provider'' includes
a provider of health care who provides health care under
contract with the Department.
SEC. 5103C. EXPEDITED REVIEW OF CLAIMS FOR DISABILITY COMPENSATION
(a) Process Required.--The Secretary shall establish a
process for the rapid identification of initial claims for
disability compensation that should, in the adjudication of
such claims, receive priority in the order of review.
(b) Review of Initial Claims.--As part of the process
required by subsection (a), the Secretary shall assign
employees of the Department who are experienced in the
processing of claims for disability compensation to carry out a
preliminary review of all initial claims for disability
compensation submitted to the Secretary in order to identify
whether--
(1) the claims have the potential of being
adjudicated quickly;
(2) the claims qualify for priority treatment under
paragraph (2) of subsection (c); and
(3) a temporary disability rating could be assigned
with respect to the claims under section 1156 of this
title.
(c) Priority in Adjudication of Claims.--(1) Except as
provided in paragraph (2), the Secretary shall, in the
adjudication of claims for disability compensation submitted to
the Secretary, give priority in the order of review of such
claims to claims identified under subsection (b)(1) as having
the potential of being adjudicated quickly.
(2) The Secretary may, under regulations the Secretary
shall prescribe, provide priority in the order of review of
claims for disability compensation.
SEC. 5103D. PROCEDURES FOR FULLY DEVELOPED CLAIMS
Upon notification received from a claimant that the
claimant has no additional information or evidence to submit,
the Secretary may determine that the claim is a fully developed
claim. The Secretary shall then undertake any development
necessary for any Federal records, medical examinations, or
opinions relevant to the claim and may decide the claim based
on all the evidence of record.
SEC. 5104. DECISIONS AND NOTICES OF DECISIONS
(a) In the case of a decision by the Secretary under
section 511 of this title affecting the provision of benefits
to a claimant, the Secretary shall, on a timely basis, provide
to the claimant (and to the claimant's representative) notice
of such decision. [The notice shall include an explanation of
the procedure for obtaining review of the decision.]
(b) In any case where the Secretary denies a benefit
sought, the notice required by subsection (a) shall [also
include (1) a statement of the reasons for the decision, and
(2) a summary of the evidence considered by the Secretary.]
include the following:
(1) A statement of the reasons for the decision.
(2) A summary of the evidence relied upon by the
Secretary in making the decision.
(3) An explanation of the procedure for obtaining
review of the decision, including the period prescribed
under paragraph (1) of section 7105(b) of this title
and the good cause exception under paragraph (3) of
such section.
(4) A form that, once completed, can serve as a
notice of disagreement under section 7105(a) of this
title.
SEC. 5105. JOINT APPLICATIONS FOR SOCIAL SECURITY AND DEPENDENCY AND
INDEMNITY COMPENSATION
(a) The Secretary and the Commissioner of Social Security
[shall] may jointly prescribe forms for use by survivors of
members and former members of the uniformed services in filing
application for benefits under chapter 13 of this title and
title II of the Social Security Act (42 U.S.C. 401 et seq.).
[Each such form] Such forms [shall] may request information
sufficient to constitute an application for benefits under both
chapter 13 of this title and title II of the Social Security
Act (42 U.S.C. 401 et seq.).
(b) When an application [on such a form] on any form
indicating an intent to apply for survivor benefits is filed
with either the Secretary or the Commissioner of Social
Security, it shall be deemed to be an application for benefits
under both chapter 13 of this title and title II of the Social
Security Act (42 U.S.C. 401 et seq.). A copy of each such
application filed with either the Secretary or the
Commissioner, together with any additional information and
supporting documents (or certifications thereof) which may have
been received by the Secretary or the Commissioner with such
application, and which may be needed by the other official in
connection therewith, shall be transmitted by the Secretary or
the Commissioner receiving the application to the other
official. The preceding sentence shall not prevent the
Secretary and the Commissioner of Social Security from
requesting the applicant, or any other individual, to furnish
such additional information as may be necessary for purposes of
chapter 13 of this title and title II of the Social Security
Act (42 U.S.C. 401 et seq.) respectively.
* * * * * * *
Subchapter II. Effective Dates
SEC. 5110. EFFECTIVE DATES OF AWARDS
(a) * * *
(b)(1) * * *
(2) The effective date of an award of disability
compensation to a veteran who submits an application therefor
that sets forth a claim that is fully-developed (as prescribed
by the Secretary for purposes of this paragraph) as of the date
of submittal shall be fixed in accordance with the facts found,
but shall not be earlier than the date that is one year before
the date of receipt of the application.
(3) [(2)] The effective date of an award of increased
compensation shall be the earliest date as of which it is
ascertainable that an increase in disability had occurred, if
application is received within one year from such date.
(4) [(3)](A) The effective date of an award of disability
pension to a veteran described in subparagraph (B) of this
paragraph shall be the date of application or the date on which
the veteran became permanently and totally disabled, if the
veteran applies for a retroactive award within one year from
such date, whichever is to the advantage of the veteran.
* * * * * * *
Chapter 53. Special Provisions Relating to Benefits
* * * * * * *
SEC. 5312. ANNUAL ADJUSTMENT OF CERTAIN BENEFIT RATES
* * * * * * *
(d)(1) Whenever there is an increase in benefit amounts
payable under title II of the Social Security Act (42 U.S.C.
401 et seq.) as a result of a determination made under section
215(i) of such Act (42 U.S.C. 415(i)), the Secretary shall,
effective on the date of such increase in benefit amounts,
increase the dollar amounts in effect for the payment of
disability compensation and dependency and indemnity
compensation by the Secretary, as specified in paragraph (2),
as such amounts were in effect immediately before the date of
such increase in benefit amounts payable under title II of the
Social Security Act, by the same percentage as the percentage
by which such benefit amounts are increased.
(2) The dollar amounts to be increased pursuant to
paragraph (1) are the following:
(A) Compensation.--Each of the dollar amounts in
effect under section 1114 of this title.
(B) Additional compensation for dependents.--Each of
the dollar amounts in effect under section 1115(1) of
this title.
(C) Clothing allowance.--The dollar amount in effect
under section 1162 of this title.
(D) New DIC rates.--Each of the dollar amounts in
effect under paragraphs (1) and (2) of section 1311(a)
of this title.
(E) Old DIC rates.--Each of the dollar amounts in
effect under section 1311(a)(3) of this title.
(F) Additional DIC for surviving spouses with minor
children.--The dollar amount in effect under section
1311(b) of this title.
(G) Additional DIC for disability.--Each of the
dollar amounts in effect under sections 1311(c) and
1311(d) of this title.
(H) DIC for dependent children.--Each of the dollar
amounts in effect under sections 1313(a) and 1314 of
this title.
(3) Whenever there is an increase under paragraph (1) in
amounts in effect for the payment of disability compensation
and dependency and indemnity compensation, the Secretary shall
publish such amounts, as increased pursuant to such paragraph,
in the Federal Register at the same time as the material
required by section 215(i)(2)(D) of the Social Security Act (42
U.S.C. 415(i)(2)(D)) is published by reason of a determination
under section 215(i) of such Act (42 U.S.C. 415(i)).
* * * * * * *
Chapter 55. Minors, Incompetents, and Other Wards
* * * * * * *
SEC. 5502. PAYMENTS TO AND SUPERVISION OF FIDUCIARIES
* * * * * * *
(f)(1) The Secretary may require any person appointed or
recognized as a fiduciary for a Department beneficiary under
this section to provide authorization for the Secretary to
obtain (subject to the cost reimbursement requirements of
section 1115(a) of the Right to Financial Privacy Act of 1978
(12 U.S.C. 3415)) from any financial institution any financial
record held by the institution with respect to the fiduciary or
the beneficiary whenever the Secretary determines that the
financial record is necessary--
(A) for the administration of a program administered
by the Secretary; or
(B) in order to safeguard the beneficiary's benefits
against neglect, misappropriation, misuse,
embezzlement, or fraud.
(2) Notwithstanding section 1104(a)(1) of such Act (12
U.S.C. 3404(a)(1)), an authorization provided by a fiduciary
under paragraph (1) with respect to a beneficiary shall remain
effective until the earliest of--
(A) the approval by a court or the Secretary of a
final accounting of payment of benefits under any law
administered by the Secretary to a fiduciary on behalf
of such beneficiary;
(B) in the absence of any evidence of neglect,
misappropriation, misuse, embezzlement, or fraud, the
express revocation by the fiduciary of the
authorization in a written notification to the
Secretary; or
(C) the date that is three years after the date of
the authorization.
(3)(A) An authorization obtained by the Secretary pursuant
to this subsection shall be considered to meet the requirements
of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3401
et seq.) for purposes of section 1103(a) of such Act (12 U.S.C.
3403(a)), and need not be furnished to the financial
institution, notwithstanding section 1104(a) of such Act (12
U.S.C. 3404(a)), if the Secretary provides a copy of the
authorization to the financial institution.
(B) The certification requirements of section 1103(b) of
such Act (12 U.S.C. 3403(b)) shall not apply to requests by the
Secretary pursuant to an authorization provided under this
subsection.
(C) A request for a financial record by the Secretary
pursuant to an authorization provided by a fiduciary under this
subsection is deemed to meet the requirements of section
1104(a)(3) of such Act (12 U.S.C. 3404(a)(3)) and the matter in
section 1102 of such Act (12 U.S.C. 3402) that precedes
paragraph (1) of such section if such request identifies the
fiduciary and the beneficiary concerned.
(D) The Secretary shall inform any person who provides
authorization under this subsection of the duration and scope
of the authorization.
(E) If a fiduciary of a Department beneficiary refuses to
provide, or revokes, any authorization to permit the Secretary
to obtain from any financial institution any financial record
concerning benefits paid by the Secretary for such beneficiary,
the Secretary may, on that basis, revoke the appointment or the
recognition of the fiduciary for such beneficiary and for any
other Department beneficiary for whom such fiduciary has been
appointed or recognized. If the appointment or recognition of a
fiduciary is revoked, benefits may be paid as provided in
subsection (d).
(4) For purposes of section 1113(d) of such Act (12 U.S.C.
3413(d)), a disclosure pursuant to this subsection shall be
considered a disclosure pursuant to a Federal statute.
(5) In this subsection:
(A) The term ``fiduciary'' includes any person
appointed or recognized to receive payment of benefits
under any law administered by the Secretary on behalf
of a Department beneficiary.
(B) The term ``financial institution'' has the
meaning given such term in section 1101 of such Act (12
U.S.C. 3401), except that such term shall also include
any benefit association, insurance company, safe
deposit company, money market mutual fund, or similar
entity authorized to do business in any State.
(C) The term ``financial record'' has the meaning
given such term in such section.
* * * * * * *
Part V. Boards, Administrations, and Services
Chapter 71. Board of Veterans' Appeals
* * * * * * *
SEC. 7103. RECONSIDERATION; CORRECTION OF OBVIOUS ERRORS
* * * * * * *
(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.
(d) [(c)] The Board on its own motion may correct an
obvious error in the record, without regard to whether there
has been a motion or order for reconsideration.
* * * * * * *
SEC. 7105. FILING OF NOTICE OF DISAGREEMENT AND APPEAL
(a) Appellate review will be initiated by a notice of
disagreement and completed by a substantive appeal after a
[statement of the case] post-notice of disagreement decision is
furnished as prescribed in this section. Each appellant will be
accorded hearing and representation rights pursuant to the
provisions of this chapter and regulations of the Secretary.
(b)(1) Except in the case of simultaneously contested
claims, notice of disagreement shall be filed within [one year]
180 days from the date of mailing of notice of the result of
initial review or determination. Such notice, and appeals, must
be in writing and be filed with the activity which entered the
determination with which disagreement is expressed (hereinafter
referred to as the ``agency of original jurisdiction''). A
notice of disagreement postmarked or transmitted by electronic
means before the expiration of the [one-year] 180-day period
will be accepted as timely filed.
(2) * * *
(3)(A) A notice of disagreement not filed within the time
prescribed by paragraph (1) shall be treated by the Secretary
as timely filed if--
(i) the Secretary determines that the claimant, legal
guardian, or other accredited representative, attorney,
or authorized agent filing the notice had good cause
for the lack of filing within such time; and
(ii) the notice of disagreement is filed not later
than 186 days after the period prescribed by paragraph
(1).
(B) For purposes of this paragraph, good cause shall
include the following:
(i) Circumstances relating to any physical, mental,
educational, or linguistic limitation of the claimant,
legal guardian, representative, attorney, or authorized
agent concerned (including lack of facility with the
English language).
(ii) Circumstances relating to significant delay in
the delivery of the initial decision or of the notice
of disagreement caused by natural disaster or factors
relating to geographic location.
(iii) A change in financial circumstances, including
the payment of medical expenses or other changes in
income or net worth that are considered in determining
eligibility for benefits and services on an annualized
basis for purposes of needs-based benefits under
chapters 15 and 17 of this title.
(c) * * *
(d)(1)Where the claimant, or the claimant's representative,
within the time specified in this chapter, files a notice of
disagreement with the decision of the agency of original
jurisdiction, such agency will take such development or review
action as it deems proper under the provisions of regulations
not inconsistent with this title. If such action does not
resolve the disagreement either by granting the benefit sought
or through withdrawal of the notice of disagreement, such
agency shall prepare a [statement of the case] post-notice of
disagreement decision. A [statement of the case] post-notice of
disagreement decision shall include the following:
[(A) A summary of the evidence in the case pertinent
to the issue or issues with which disagreement has been
expressed.
[(B) A citation to pertinent laws and regulations and
a discussion of how such laws and regulations affect
the agency's decision.
[(C) The decision on each issue and a summary of the
reasons for such decision.]
(A) A description of the specific facts in
the case that support the agency's decision,
including, if applicable, an assessment as to
the credibility of any lay evidence pertinent
to the issue or issues with which disagreement
has been expressed.
(B) A citation to pertinent laws and
regulations that support the agency's decision.
(C) A statement that addresses each issue and
provides the reasons why the evidence relied
upon supports the conclusions of the agency
under the specific laws and regulations
applied.
(D) The date by which a substantive appeal
must be filed in order to obtain further review
of the decision.
(E) The rights of the claimant under
subsection (f).
(2) A [statement of the case] post-notice of disagreement
decision, as required by this subsection, will not disclose
matters that would be contrary to section 5701 of this title or
otherwise contrary to the public interest. Such matters may be
disclosed to a designated representative unless the
relationship between the claimant and the representative is
such that disclosure to the representative would be as harmful
as if made to the claimant.
(3) Copies of the ``[statement of the case] post-notice of
disagreement decision'' prescribed in paragraph (1) of this
subsection will be submitted to the claimant and to the
claimant's representative, if there is one. [The claimant will
be afforded a period of sixty days from the date the statement
of the case is mailed to file the formal appeal. This may be
extended for a reasonable period on request for good cause
shown. The appeal should set out specific allegations of error
of fact or law, such allegations related to specific items in
the statement of the case. The benefits sought on appeal must
be clearly identified. The agency of original jurisdiction may
close the case for failure to respond after receipt of the
statement of the case, but questions as to timeliness or
adequacy of response shall be determined by the Board of
Veterans' Appeals.]
[(4) The claimant in any case may not be presumed to agree
with any statement of fact contained in the statement of the
case to which the claimant does not specifically express
agreement.
[(5) The Board of Veterans' Appeals may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed.]
(4) The post-notice of disagreement decision shall be
written in plain language.
(e)(1) A claimant shall be afforded a period of 60 days
from the date the post-notice of disagreement decision is
mailed under subsection (d) to file a substantive appeal.
(2)(A) The period under paragraph (1) may be extended for
an additional 60 days for good cause shown on a request for
such extension submitted in writing within such period.
(B) For purposes of this paragraph, good cause shall
include the following:
(i) Circumstances relating to any physical, mental,
educational, or linguistic limitation of the claimant,
legal guardian, or other accredited representative,
attorney, or authorized agent filing the request
(including lack of facility with the English language).
(ii) Circumstances relating to significant delay in
the delivery of the initial decision or of the notice
of disagreement caused by natural disaster or factors
relating to geographic location.
(iii) A change in financial circumstances, including
the payment of medical expenses or other changes in
income or net worth that are considered in determining
eligibility for benefits and services on an annualized
basis for purposes of needs-based benefits under
chapters 15 and 17 of this title.
(3) A substantive appeal under this subsection shall
identify the particular determination or determinations being
appealed and allege specific errors of fact or law made by the
agency of original jurisdiction in each determination being
appealed.
(4) A claimant in any case under this subsection may not be
presumed to agree with any statement of fact contained in the
post-notice of disagreement decision to which the claimant does
not specifically express disagreement.
(5) If the claimant does not file a substantive appeal in
accordance with the provisions of this chapter within the
period afforded under paragraphs (1) and (2), as the case may
be, the agency of original jurisdiction shall dismiss the
appeal and notify the claimant of the dismissal. The notice
shall include an explanation of the procedure for obtaining
review of the dismissal by the Board of Veterans' Appeals.
(6) In order to obtain review by the Board of a dismissal
of an appeal by the agency of original jurisdiction, a claimant
shall file a request for such review with the Board within the
60-day period beginning on the date on which notice of the
dismissal is mailed pursuant to paragraph (5).
(7) If a claimant does not file a request for review by the
Board in accordance with paragraph (6) within the prescribed
period or if such a request is timely filed and the Board
affirms the dismissal of the appeal, the determination of the
agency of original jurisdiction regarding the claim for
benefits under this title shall become final and the claim may
not thereafter be reopened or allowed, except as may otherwise
be provided by regulations not inconsistent with this title.
(8) If an appeal is not dismissed by the agency of original
jurisdiction, the Board may nonetheless dismiss any appeal
which is--
(A) untimely; or
(B) fails to allege specific error of fact or law in
the determination being appealed.
(f) If, either at the time or after the agency of original
jurisdiction receives a substantive appeal, the claimant or the
claimant's representative, if any, submits evidence to either
the agency of original jurisdiction or the Board of Veterans'
Appeals for consideration in connection with the issue or
issues with which disagreement has been expressed, such
evidence shall be subject to initial review by the Board unless
the claimant or the claimant's representative, as the case may
be, requests in writing that the agency of original
jurisdiction initially review such evidence. Such request for
review shall accompany the submittal of the evidence or be made
within 30 days of the submittal.
SEC. 7105A. SIMULTANEOUSLY CONTESTED CLAIMS
(a) * * *
(b) Upon the filing of a notice of disagreement, all
parties in interest will be furnished with a [statement of the
case] post-notice of disagreement decision in the same manner
as is prescribed in section 7105. The party in interest who
filed a notice of disagreement will be allowed thirty days from
the date of mailing of such [statement of the case] post-notice
of disagreement decision in which to file a formal appeal.
Extension of time may be granted for good cause shown but with
consideration to the interests of the other parties involved.
The substance of the appeal will be communicated to the other
party or parties in interest and a period of thirty days will
be allowed for filing a brief or argument in answer thereto.
Such notice shall be forwarded to the last known address of
record of the parties concerned, and such action shall
constitute sufficient evidence of notice.
SEC. 7106. ADMINISTRATIVE APPEALS
Application for review on appeal may be made within the
[one-year period described in section 7105] period described in
section 7105(b)(1) of this title by such officials of the
Department as may be designated by the Secretary. An
application entered under this paragraph shall not operate to
deprive the claimant of the right of review on appeal as
provided in this chapter.
SEC. 7107. APPEALS: DOCKETS; HEARINGS
* * * * * * *
(d)(1) [An appellant may request that a hearing before the
Board be held at its principal location or at a facility of the
Department located within the area served by a regional office
of the Department.] Upon request by an appellant for a hearing
before the Board, the Board shall present the appellant with
the following:
(A) The option of holding the hearing at--
(i) the Board's principal location; or
(ii) a facility of the Department located
within the area served by a regional office of
the Department.
(B) A recommendation as to the option presented under
subparagraph (A) that would lead to the earliest
possible date for the hearing, including with respect
to the use of facilities and equipment under subsection
(e).
(C) Statistics on the average wait experienced by
similarly situated appellants for hearings at either
option presented under subparagraph (A).
* * * * * * *
(e)(1) * * *
(2)(A) When such [When such] facilities and equipment are
available, the Chairman may afford the appellant an opportunity
to participate in a hearing before the Board through the use of
such facilities and equipment in lieu of a hearing held by
personally appearing before a Board member or panel as provided
in subsection (d).
(B) Any such [Any such] hearing shall be conducted in the
same manner as, and shall be considered the equivalent of, a
personal hearing.
(C) In affording the appellant an opportunity under
subparagraph (A), the Board shall inform the appellant of the
advantages and disadvantages of participating in a hearing
through the use of such facilities and equipment.
(D) If the appellant [If the appellant] declines to
participate in a hearing through the use of such facilities and
equipment, the opportunity of the appellant to a hearing as
provided in such subsection (d) shall not be affected.
* * * * * * *
Chapter 72. United States Court of Appeals for
Veterans Claims
* * * * * * *
Subchapter II. Procedure
SEC. 7261. SCOPE OF REVIEW
(a) In any action brought under this chapter, the Court of
Appeals for Veterans Claims[, to the extent necessary to its
decision and when presented, shall] shall, when presented--
* * * * * * *
(c) In carrying out a review of a decision of the Board of
Veterans' Appeals, the Court shall render a decision on every
issue raised by an appellant within the extent set forth in
this section.
(d) [(c)] In no event shall findings of fact made by the
Secretary or the Board of Veterans' Appeals be subject to trial
de novo by the Court.
(e) [(d)] When a final decision of the Board of Veterans'
Appeals is adverse to a party and the sole stated basis for
such decision is the failure of the party to comply with any
applicable regulation prescribed by the Secretary, the Court
shall review only questions raised as to compliance with and
the validity of the regulation.
* * * * * * *
SEC. 7266. NOTICE OF APPEAL
(a) * * *
(b)(1) The Court may extend the initial period for the
filing of a notice of appeal set forth in subsection (a) for an
additional period not to exceed 120 days from the expiration of
such initial period upon a motion--
(A) filed with the Court not later than 120 days
after the expiration of such initial period; and
(B) showing good cause for such extension.
(2) If a motion for extension under paragraph (1) is filed
after expiration of the initial period for the filing of a
notice of appeal set forth in subsection (a), the notice of
appeal shall be filed concurrently with, or prior to, the
filing of the motion.
(c) [(b)] An appellant shall file a notice of appeal under
this section by delivering or mailing the notice to the Court.
(d) [(c)] A notice of appeal shall be deemed to be received
by the Court as follows:
(1) * * *
(2) * * *
(e) [(d)] For a notice of appeal mailed to the Court to be
deemed to be received under [subsection (c)(2)] subsection
(d)(2) on a particular date, the United States Postal Service
postmark on the cover in which the notice is posted must be
legible. The Court shall determine the legibility of any such
postmark and the Court's determination as to legibility shall
be final and not subject to review by any other Court.
* * * * * * *