[House Report 112-83]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     112-83

======================================================================



 
                VETERANS APPEALS IMPROVEMENT ACT OF 2011

                                _______
                                

  May 20, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Miller of Florida, from the Committee on Veterans' Affairs, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 1484]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Veterans' Affairs, to whom was referred 
the bill (H.R. 1484) to amend title 38, United States Code, to 
improve the appeals process of the Department of Veterans 
Affairs and to establish a commission to study judicial review 
of the determination of veterans' benefits, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     2
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     4
Hearings.........................................................     5
Subcommittee Consideration.......................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     6
Statement of General Performance Goals and Objectives............     6
New Budget Authority, Entitlement Authority, and Tax Expenditures     6
Earmarks and Tax and Tariff Benefits.............................     6
Committee Cost Estimate..........................................     6
Congressional Budget Office Cost Estimate........................     6
Federal Mandates Statement.......................................     7
Advisory Committee Statement.....................................     7
Applicability to Legislative Branch..............................     7
Section-by-Section Analysis of the Legislation...................     7
Changes in Existing Law Made by the Bill as Reported.............     8

                               Amendment

    The amendment is as follows:

          Amendment in the Nature of a Substitute to H.R. 1484


                 Offered by Mr. McNerney of California

  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Veterans Appeals Improvement Act of 
2011''.

SEC. 2. WAIVER OF REGIONAL OFFICE JURISDICTION OVER INCORPORATION OF 
                    SUPPLEMENTAL EVIDENCE INTO PREVIOUSLY SUBMITTED 
                    CLAIMS.

  (a) Waiver.--Section 7104 of title 38, United States Code, is amended 
by adding at the end the following new subsection:
  ``(f) If a claimant or the claimant's representative submits new 
evidence in support of a case for which a substantive appeal has been 
filed, such evidence shall be submitted to the Board directly and not 
to the agency of jurisdiction, unless the claimant or the claimant's 
representative requests that the evidence be reviewed by the agency of 
jurisdiction before being submitted to the Board.''.
  (b) Effective Date.--Subsection (f) of section 7104 of title 38, 
United States Code, as added by subsection (a) of this section, shall 
apply with respect to evidence submitted on or after the date that is 
90 days after the date of the enactment of this Act.

SEC. 3. COMMISSION TO STUDY JUDICIAL REVIEW OF THE DETERMINATION OF 
                    VETERANS' BENEFITS.

  (a) Establishment.--There is established a commission to be known as 
the ``Veterans Judicial Review Commission'' (in this section referred 
to as the ``Commission'').
  (b) Duties.--The Commission shall--
          (1) evaluate the administrative and judicial appellate review 
        processes of veterans' and survivors' benefits determinations; 
        and
          (2) make specific recommendations and offer solutions to 
        improve the accuracy, fairness, transparency, predictability, 
        timeliness, and finality of such appellate review processes, 
        including a recommendation as to whether the Court of Appeals 
        for Veterans Claims should have the authority to hear class 
        action or associational standing cases.
  (c) Membership.--
          (1) In general.--The Commission shall be composed of 13 
        members appointed as follows:
                  (A) Two individuals appointed by the Speaker of the 
                House of Representatives.
                  (B) Two individuals appointed jointly by the 
                President of the Senate and the President pro tempore.
                  (C) Two individuals appointed by the minority leader 
                of the House of Representatives.
                  (D) Two individuals appointed by the minority leader 
                of the Senate.
                  (E) Four individuals appointed by the President.
                  (F) One individual appointed by the President, by and 
                with the advice and consent of the Senate, who shall 
                serve as chairperson.
          (2) Qualifications.--Individuals appointed under paragraph 
        (1) shall--
                  (A) be specially qualified to serve on the Commission 
                by virtue of their expert education, training, or 
                experience associated with veterans' benefits, judicial 
                review, constitutional law, or other areas of expertise 
                pertinent to the duties of the Commission; and
                  (B) include individuals who--
                          (i) are current or retired members of the 
                        judiciary;
                          (ii) are members of the legal or academic 
                        community; or
                          (iii) represent--
                                  (I) veterans service organizations;
                                  (II) legal service organizations; or
                                  (III) other affected entities.
          (3) Terms.--Each member shall be appointed for the life of 
        the Commission.
          (4) Vacancy.--A vacancy in the Commission shall be filled in 
        the manner in which the original appointment was made.
  (d) Meetings.--
          (1) In general.--The Commission shall meet at the call of the 
        Chairperson or a majority of its members.
          (2) Quorum.--A majority of the Commission shall constitute a 
        quorum but a lesser number may hold hearings.
  (e) Pay.--
          (1) Rates of pay.--Except as provided in paragraph (2), 
        members shall serve without pay.
          (2) Travel expense.--Each member shall receive travel 
        expenses, including per diem in lieu of subsistence, in 
        accordance with applicable provisions under subchapter I of 
        chapter 57 of title 5, United States Code.
  (f) Staff.--
          (1) Director.--The Commission shall have a director who shall 
        be appointed by the Chairperson.
          (2) Staff.--Subject to rules prescribed by the Commission, 
        the Chairperson may appoint additional personnel as the 
        Chairperson considers appropriate.
          (3) Applicability of certain civil service laws.--The 
        director and staff of the Commission shall be appointed subject 
        to the provisions of title 5, United States Code, governing 
        appointments in the competitive service, and shall be paid in 
        accordance with the provisions of chapter 51 and subchapter III 
        of chapter 53 of that title relating to classification and 
        General Schedule pay rates.
          (4) Experts and consultants.--Subject to rules prescribed by 
        the Commission, the Chairperson may procure temporary and 
        intermittent services under section 3109(b) of title 5, United 
        States Code.
          (5) Staff to federal agencies.--Upon request of the 
        Chairperson, the head of any Federal department or agency may 
        detail, on a reimbursable basis, any of the personnel of that 
        department or agency to the Commission to assist it in carrying 
        out its duties under this section.
  (g) Powers of Commission.--
          (1) Hearings and sessions.--The Commission may, for the 
        purpose of carrying out this Act, hold hearings, sit and act at 
        times and places, take testimony, and receive evidence as the 
        Commission considers appropriate. The Commission may administer 
        oaths or affirmations to witnesses appearing before it.
          (2) Powers of members and agents.--Any member or agent of the 
        Commission may, if authorized by the Commission, take any 
        action which the Commission is authorized to take by this 
        section.
          (3) Obtaining official data.--The Commission may secure 
        directly from any department or agency of the United States 
        information necessary to enable it to carry out this Act. Upon 
        request of the Chairperson of the Commission, the head of that 
        department or agency shall furnish that information to the 
        Commission.
          (4) Mails.--The Commission may use the United States mails in 
        the same manner and under the same conditions as other 
        departments and agencies of the United States.
          (5) Administrative support services.--Upon the request of the 
        Commission, the Administrator of General Services shall provide 
        to the Commission, on a reimbursable basis, the administrative 
        support services necessary for the Commission to carry out its 
        responsibilities under this Act.
  (h) Reports.--
          (1) Interim report.--Not later than July 1, 2012, the 
        Commission shall submit to Congress an interim report of the 
        evaluation and recommendations made under subsection (b).
          (2) Final report.--Not later than December 31, 2012, the 
        Commission shall submit to Congress a final report on the 
        activities of the Commission, including--
                  (A) specific recommendations and solutions proposed 
                by the Commission under subsection (b), including a 
                recommendation as to whether the Court of Appeals for 
                Veterans Claims should have the authority to hear class 
                action or associational standing cases;
                  (B) relevant background and statistical information 
                associated with such recommendations and solutions; and
                  (C) other information the Commission determines 
                appropriate.
  (i) Termination.--The Commission shall terminate on the date that is 
two years after the date on which the Commission submits the final 
report pursuant to section (h)(2).

                          Purpose and Summary

    H.R. 1484 was introduced on April 12, 2011, by Ranking 
Member Bob Filner of California. H.R. 1484, as amended, would 
direct the Board of Veterans' Appeals (BVA) to consider 
evidence submitted by a claimant after a substantive appeal has 
been filed unless the claimant elects to have the evidence 
considered first by the Agency of Original Jurisdiction (AOJ). 
H.R. 1484, as amended, would also create a Veterans Judicial 
Review Commission charged with reviewing and making 
recommendations to improve the appellate review process for 
veterans' benefits.

                  Background and Need for Legislation

    A claimant who files for benefits administered by the 
Department of Veterans Affairs (VA) must submit evidence in 
support of a claim to the appropriate AOJ. For claims arising 
under benefit programs administered by the Veterans Benefits 
Administration (VBA), the AOJ is generally one of 57 VBA 
regional offices. Although the Veterans Health Administration 
and the National Cemetery Administration render decisions on 
benefit programs under their purview, the predominant arena for 
claims decisions is at VA regional offices.
    An AOJ is responsible for rendering a judgment on a claim 
based on the evidence before it. Such a judgment represents the 
initial decision of the Secretary of VA. Section 7104 of title 
38, United States Code, affords claimants the opportunity to 
appeal final AOJ decisions to the BVA. However, the law limits 
claimants to one review on appeal and precludes BVA's ability 
to consider new evidence submitted in connection with a claim 
unless the claimant affirmatively waives the right for that 
evidence to first be considered by the AOJ. The default 
requirement for an AOJ to initially consider all evidence often 
delays the final adjudication of claims. Newly submitted 
evidence in support of claims on appeal must be sent back to an 
AOJ for consideration when, in many instances, the claimant 
would benefit from that evidence being considered de novo by 
BVA.
    Section 2 of H.R. 1484, as amended, would require new 
evidence submitted by a claimant in support of a claim, for 
which a substantive appeal has already been filed, to be 
submitted directly to BVA and not an AOJ, unless a claimant 
requests initial AOJ consideration of the evidence. Testifying 
on behalf of the Disabled American Veterans (DAV) at the May 3, 
2011, Subcommittee on Disability Assistance and Memorial 
Affairs hearing, Mr. Jeffrey Hall stated that section two of 
H.R. 1484 would help by ``avoiding a time consuming remand 
process that delays final decisions to veterans and also wastes 
VA resources in the process.'' The Committee agrees with the 
expressed DAV position that section 2 of H.R. 1484 ``would be 
beneficial to all parties involved.''
    Section 3 of H.R. 1484, as amended, would establish a 
Veterans Judicial Review Commission charged with reviewing and 
making recommendations to Congress to improve the appellate 
review process for veterans' benefits. The 13-member Commission 
would also be charged with making a recommendation on whether 
the U.S. Court of Appeals for Veterans Claims (CAVC) should 
have the authority to hear class action or associated standing 
cases. Testifying in support of H.R. 1484 at the May 3, 2011, 
Subcommittee on Disability Assistance and Memorial Affairs 
hearing, Ms. Christina Roof of AMVETS stated that the 
Commission could help VBA ``gain valuable information that 
could lead to great improvements to the entire claims 
process.'' Given the seriousness of the disability claims 
backlog problem, and the contribution of the appellate workload 
as part of it, the Committee would welcome any new ideas for 
improvement that a focused Commission might provide.

                                Hearings

    On May 3, 2011, the Subcommittee on Disability Assistance 
and Memorial Affairs conducted a legislative hearing on various 
bills introduced during the 112th Congress, including H.R. 
1484. The following witnesses testified:
    Ms. Christina M. Roof, National Acting Legislative 
Director, AMVETS; Mr. Jeffrey C. Hall, Assistant National 
Legislative Director, Disabled American Veterans; Mr. Shane 
Barker, Senior Legislative Associate, National Legislative 
Service Veterans of Foreign Wars of the United States; Mr. 
Barton F. Stichman, Joint Executive Director, National Veterans 
Legal Service Program; The Honorable Bruce E. Kasold, Chief 
Judge, United States Court of Appeals for Veterans Claims; Ms. 
Diana M. Rubens, Associate Deputy Under Secretary for Field 
Operations, Veterans Benefits Administration, who was 
accompanied by Mr. Richard J. Hipolit, Assistant General 
Counsel, U.S. Department of Veterans Affairs; and Mr. Steve 
Keller, Acting Chairman, Board of Veterans' Appeals, U.S. 
Department of Veterans Affairs.
    Those submitting statements for the record included: The 
Paralyzed Veterans of America.

                       Subcommittee Consideration

    On May 5, 2011, the Subcommittee on Disability Assistance 
and Memorial Affairs met in an open markup session and ordered 
favorably forwarded to the full committee H.R. 1484, as 
amended, by voice vote. During consideration of the bill the 
following amendment was considered.
    An amendment in the nature of substitute offered by Mr. 
McNerney of California to make technical and conforming changes 
to reflect issues raised by VA at the May 3, 2011 hearing was 
agreed to by voice vote.

                        Committee Consideration

    On May 12, 2011, the full Committee met in an open markup 
session, a quorum being present, and ordered H.R. 1484, as 
amended, reported favorably to the House of Representatives, by 
voice vote.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the record votes 
on the motion to report the legislation and amendments thereto. 
There were no record votes taken on amendments or in connection 
with ordering H.R. 1484, as amended, reported to the House. A 
motion by Ranking Member Bob Filner of California to order H.R. 
1484, as amended, reported favorably to the House of 
Representatives was agreed to by voice vote.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own, the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

                  Earmarks and Tax and Tariff Benefits

    H.R. 1484, as amended, does not contain any congressional 
earmarks, limited tax benefits, or limited tariff benefits as 
defined in clause 9 of rule XXI of the Rules of the House of 
Representatives.

                        Committee Cost Estimate

    The Committee adopts as its own, the cost estimate on H.R. 
1484, as amended, prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974.

               Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the Rules of the 
House of Representatives, the following is the cost estimate 
for H.R. 1484, as amended, provided by the Congressional Budget 
Office pursuant to section 402 of the Congressional Budget Act 
of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 16, 2011.
Hon. Jeff Miller,
Chairman, Committee on Veterans' Affairs, House of Representatives, 
        Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1484, the Veterans 
Appeals Improvement Act of 2011.
    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.
    Enclosure.

H.R. 1484--Veterans Appeals Improvement Act of 2011

    H.R. 1484 would establish a commission to evaluate the 
process of judicial review for veterans' and survivors' 
benefits. The Veterans Judicial Review Commission would be 
charged with recommending ways to improve aspects of the 
appellate review process as it relates to veterans' benefits, 
including its accuracy, timeliness, and transparency. The 
commission also would be asked to determine the advisability of 
authorizing the Court of Appeals for Veterans Claims to hear 
cases brought on behalf of a group, such as class action suits.
    The commission would consist of 13 members and would be 
required to submit a final report to the Congress on its 
activities by December 31, 2012. Members would serve without 
pay but would be reimbursed for travel expenses. In addition, 
the commission could hire staff and use personnel from other 
federal agencies. The commission would terminate two years 
after submitting its final report. Based on an analysis of the 
costs of similar commissions, CBO estimates that implementing 
H.R. 1484 would cost $2 million over the 2012-2015 period, 
assuming the availability of appropriated funds.
    Enacting H.R. 1484 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 1484 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Dwayne M. 
Wright. The estimate was approved by Theresa A. Gullo, Deputy 
Assistant Director for Budget Analysis.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates regarding H.R. 1484, as amended, prepared by the 
Director of the Congressional Budget Office pursuant to section 
423 of the Unfunded Mandates Reform Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act would be created by H.R. 
1484, as amended.

                  Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    This section would provide the short title of H.R. 1484 as 
the ``Veterans Appeals Improvement Act of 2011.''

Section 2. Waiver of regional office jurisdiction over incorporation of 
        supplemental evidence into previously submitted claims--

    This section would amend Section 7104 of title 38, United 
States Code by requiring that any new evidence submitted in 
support of a case for which a substantive appeal has been filed 
be submitted to the Board of Veterans' Appeals directly and not 
to a VA regional office unless requested otherwise by the 
veteran. The effective date of this provision is 90 days after 
enactment.

Section 3. Veterans Judicial Review Commission

    Subsection (a and b) would establish a ``Veterans Judicial 
Review Commission'' with the purpose of evaluating the 
appellate review process of veterans' and survivors' benefits 
determinations and to make recommendations for improvement.
    Subsection (c) would require the Commission to have 11 
members, 2 appointed by the Speaker of the House of 
Representatives, 1 by the Minority Leader of the House, 2 
appointed jointly by the President of the Senate and the 
President pro tempore, 1 by the minority leader of the Senate, 
4 appointed by the President, and 1 Chairperson appointed by 
the President with the advice and consent of the Senate. These 
individuals would be highly qualified to serve the interests of 
the Commission and would represent veterans service 
organizations, the judiciary, legal service organizations, 
academia, and other affected organizations. All members are 
appointed for the life of the Commission and any vacancy would 
follow the manner in which the original appointment was made.
    Subsection (d) would establish the rules of meetings, 
whereby the Commission shall meet at the call of the 
Chairperson or a majority of the members. A majority of the 
Commission would constitute a quorum, but less than a majority 
may hold hearings.
    Subsection (e) would establish that all members serve on 
the Commission without pay and would receive travel expenses 
and per diem in accordance with applicable provisions under 
subchapter I of chapter 57 of title 5, USC.
    Subsection (f) would establish a director and staff as 
appointed by the Chairperson.
    Subsection (g) would give the Commission the power to hold 
hearings and sessions, including the taking of testimony, 
administration of oaths, and affirmations to witnesses to 
appear before it. Any member, if authorized by the Commission, 
would be able to take any action which the Commission is 
authorized to take.
    Subsection (h) would require the Commission to submit an 
interim report no later than July 1, 2011 on the evaluation and 
recommendations made under subsection (b), including whether 
the CAVC should have class action or associational standing 
authority. A final report would be required by the Commission 
no later than December 31, 2011 and be submitted to Congress.
    Subsection (i) would terminate the Commission on the date 
that is two years after the date on which the Commission 
submitted the final report.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

TITLE 38, UNITED STATES CODE

           *       *       *       *       *       *       *


PART V--BOARDS, ADMINISTRATIONS, AND SERVICES

           *       *       *       *       *       *       *


CHAPTER 71--BOARD OF VETERANS' APPEALS

           *       *       *       *       *       *       *



Sec. 7104. Jurisdiction of the Board

    (a) * * *

           *       *       *       *       *       *       *

    (f) If a claimant or the claimant's representative submits 
new evidence in support of a case for which a substantive 
appeal has been filed, such evidence shall be submitted to the 
Board directly and not to the agency of jurisdiction, unless 
the claimant or the claimant's representative requests that the 
evidence be reviewed by the agency of jurisdiction before being 
submitted to the Board.

                                  
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