[House Report 118-659]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 118-659
======================================================================
VETERAN APPEALS TRANSPARENCY ACT OF 2024
_______
September 10, 2024.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Bost, from the Committee on Veterans' Affairs, submitted the
following
R E P O R T
[To accompany H.R. 5870]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 5870) to amend title 38, United States Code, to
make certain improvements to the processing of claims for
benefits under the laws administered by the Secretary of
Veterans Affairs and the transparency of actions of Board of
Veterans' Appeals, and for other purposes, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 3
Subcommittee Consideration....................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 5
Statement of General Performance Goals and Objectives............ 5
Earmarks and Tax and Tariff Benefits............................. 5
Committee Cost Estimate.......................................... 5
Budget Authority and Congressional Budget Office Estimate........ 5
Federal Mandates Statement....................................... 6
Advisory Committee Statement..................................... 6
Applicability to Legislative Branch.............................. 6
Statement on Duplication of Federal Programs..................... 6
Section-by-Section Analysis of the Legislation................... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Veteran Appeals Transparency Act of
2024''.
SEC. 2. BOARD OF VETERANS' APPEALS PUBLICATION OF DATES OF DOCKET
ACTIVITY.
Section 7107 of title 38, United States Code, is amended by adding at
the end the following new subsection:
``(f) Publication of Expected Actions.--(1) On a weekly basis, for
each docket, the Board shall publish, on a website of the Department,
notice of the docket dates of the cases assigned to a Board member for
a decision for that week.
``(2) Each notice published under paragraph (1) shall include a
statement that an assignment described in such paragraph does not
require the Board to issue a decision regarding the case during such
week.
``(3) Paragraph (1) shall not apply to a case--
``(A) that has been advanced under subsection (b); or
``(B) remanded by the United States Court of Appeals for
Veterans Claims.''.
Purpose and Summary
H.R. 5870, as amended, the ``Veteran Appeals Transparency
Act of 2024,'' was introduced by Rep. Keith Self of Texas on
October 2, 2023. This bill, as amended, would require the
Department of Veterans Affairs (VA) Board of Veterans' Appeals
(Board) to publish on a website, on a weekly basis, for each
Board docket, the docket dates of the cases assigned to a Board
judge for a decision for that week.
Background and Need for Legislation
Section 1: Short Title
This Act may be cited as the ``Veteran Appeals Transparency
Act of 2024.''
Section 2: Board of Veterans' Appeals Publication of Dates of Docket
Activity
The Board issues decisions on veterans' claims for VA
benefits that are on appeal because those veterans disagreed
with the Veterans Benefits Administration's (VBA) denial of
their claim. Under current law, the Board publishes on its
website the average time it takes for the Board to issue
decisions on veteran cases that are sitting in each of its
dockets; however, those average times are misleading. For
instance, as of December 2023, the Board's website stated that
it takes an average of 314 days--less than one year--for a
veteran to get a decision on their case after they choose the
Board's ``direct review'' appeals docket. But VA informed the
Committee that as of December 2023, veterans were actually
waiting an average of 613 days--almost two years--after they
chose the Board's ``direct review'' docket. Further, the Board
is required by statute to work on appeals in the order they are
filed. Yet, VA informed the Committee that as of December 2023,
some veterans had been waiting over four years in the ``direct
review'' appeals docket.
In his written testimony for the November 8, 2023,
Subcommittee on Disability Assistance and Memorial Affairs
legislative hearing, Mr. Shane L. Liermann, National
Legislative Director for Disabled American Veterans, stated,
``By requiring the Board of Veterans' Appeals to weekly publish
docket dates of cases being worked, this provides veterans,
their families and representatives with greater understanding
and transparency as to the status of the pending appeal, not to
mention it will help Congress hold the Board accountable
concerning appealed cases.''\1\
---------------------------------------------------------------------------
\1\Statement of Shane L. Liermann (dated October 24, 2023), HHRG-
118-VR09-Wstate-LiermannS-20231108.pdf (house.gov).
---------------------------------------------------------------------------
In its statement for the record for the November 8, 2023
legislative hearing, the National Organization of Veterans'
Advocates stated, ``When advocates petition the [U.S. Court of
Appeals for Veterans Claims] to order the Board to issue a
decision on an appeal that has been languishing, the Secretary
routinely asserts that the Board must adjudicate all non-
expedited appeals in docket order and asks the Court to dismiss
the petition. Without any substantive information, the Court
routinely grants the Secretary's request to dismiss. Amending
subsection (f) will promote transparency and provide veterans
and advocates with useful information regarding the status of
their appeals.''\2\
---------------------------------------------------------------------------
\2\Statement for the Record from the National Organization of
Veterans' Advocates, Inc. (dated October 24, 2023), HHRG-118-VR09-
20231108-SD005.pdf (house.gov).
---------------------------------------------------------------------------
To address this issue, this section, as amended, would
require the Board to publish on a website, on a weekly basis,
for each Board docket, the docket dates of the cases assigned
to a Board judge for a decision for that week. The section
would also require the Board to include on such publication a
caveat that such publication does not require the Board to
issue a decision on such cases during that week, so as to not
mislead veterans into thinking that assignment of a case to a
Board judge means the Board judge will immediately issue a
decision on the case. The section would also remove from the
Board's publication of docket dates any cases that have been
``advanced on the docket'' or remanded by the U.S. Court of
Appeals for Veterans Claims, because in VA's written testimony
for the November 8, 2023 legislative hearing, VA testified that
cases that have been advanced on the docket or remanded by the
U.S. Court of Appeals for Veterans Claims jump to the front of
the line, regardless of when appeals in those cases have been
filed.\3\
---------------------------------------------------------------------------
\3\Statement of Beth Murphy, Executive Director, Compensation
Service, VBA (dated November 8, 2023), HHRG-118-VR09-Wstate-MurphyB-
20231108.pdf (house.gov).
---------------------------------------------------------------------------
The Committee believes that this section is critical to
ensure that veterans have an accurate sense of where they are
in the Board's appeals queue and how much longer they have to
wait for a Board decision on their claims. The Committee also
believes that this section would help ensure greater
transparency from the Board, which would hold the Board
accountable for any failure on the part of the Board to comply
with its statutory duty to work on appeals in the order in
which they were filed.
Hearings
On November 8, 2023, the Subcommittee on Disability
Assistance and Memorial Affairs held a legislative hearing on
H.R. 5870 and other bills that were pending before the
subcommittee.
The following witnesses testified:
The Honorable Morgan Luttrell, U.S. House of
Representatives; The Honorable Mike Bost, U.S. House of
Representatives; The Honorable Elissa Slotkin, U.S.
House of Representatives; The Honorable Juan Ciscomani,
U.S. House of Representatives; The Honorable Abigail
Davis Spanberger, U.S. House of Representatives; The
Honorable Keith Self, U.S. House of Representatives;
The Honorable David J. Trone, U.S. House of
Representatives; The Honorable Darrell Issa, U.S. House
of Representatives; Ms. Beth Murphy, Executive
Director, Compensation Service, Veterans Benefits
Administration, U.S. Department of Veterans Affairs;
Mr. Kevin Friel, Deputy Director, Pension & Fiduciary
Service, Veterans Benefits Administration, U.S.
Department of Veterans Affairs; Mr. Kenneth Arnold,
Vice Chairman, Board of Veterans' Appeals, U.S.
Department of Veterans Affairs; Mr. Shane Liermann,
Deputy National Legislative Director, Disabled American
Veterans; Ms. Quandrea N. Patterson, Associate
Director, Veterans of Foreign Wars of the Unted States;
and Mr. Zachary M. Stolz, Partner, Chisholm, Chisholm,
& Kilpatrick LTD.
The following individuals and organizations submitted
statements for the record:
The Honorable Gerald E. Connolly, U.S. House of
Representatives; The ALS Association; American Veterans
(AMVETS); National Organization of Veterans' Advocates;
Paralyzed Veterans of America; Quality. Timeliness.
Customer Service (QTC); Special Operations Association
of America; Service Women's Action Network; and
Military Veterans Advocacy.
Subcommittee Consideration
On November 29, 2023, the Subcommittee on Disability
Assistance and Memorial Affairs met in an open markup session
on proposed legislation, including H.R. 5870. An amendment in
the nature of a substitute to H.R. 5870 offered by Rep. Self
was adopted by voice vote and the bill was ordered favorably
forwarded for consideration by the Full Committee on Veterans'
Affairs. The amendment in the nature of a substitute clarified
that that the Board's publication of docket dates would be on a
website; required the Board to include in its publication a
statement that its publication does not require the Board to
issue a decision on such cases during that week; and would
remove from the Board's publication of docket dates any cases
that have been ``advanced on the docket'' or remanded by the
U.S. Court of Appeals for Veterans Claims.
Committee Consideration
On May 1, 2024, the Full Committee met in open markup
session, a quorum being present, and ordered H.R. 5870, as
amended, be reported favorably to the House of Representatives
by voice vote. During consideration of the bill, the following
amendments were considered:
An amendment in the nature of a substitute offered by
Rep. Self removed the section of the bill that would
clarify that veterans may file a single administrative
review request (i.e., a supplemental claim, higher-
level review request, or notice of disagreement) within
one year of the most recent decision on a claim by the
agency of original jurisdiction. The amendment in the
nature of a substitute was approved by voice vote.
A motion by Ranking Member Takano to report H.R. 5870, as
amended, favorably to the House of Representatives was agreed
to by voice vote.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, no recorded votes were taken on
amendments or in connection with ordering H.R. 5870, as
amended, reported to the House.
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 of H.R. 5870, as amended, are to ensure
that all veterans have an accurate sense of how long they have
to wait in line for a decision on their claims from the Board,
and to ensure that the Board can be held accountable for any
noncompliance with it statutory duty to issue decisions in
appeals in the order they have been filed.
Earmarks and Tax and Tariff Benefits
H.R. 5870, 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 Congressional Budget
Office cost estimate on this measure.
Budget Authority and Congressional Budget Office Cost Estimate
H.R. 5870 would require the Board of Veterans' Appeals
(BVA) to publish on a Department of Veterans Affairs (VA)
website the appeals cases that have been assigned to the board
for a decision during the upcoming week and the date on which
those appeals were filed with the court. (BVA is a component of
VA that hears appeals on matters affecting VA benefits.) The
schedule also would include a disclaimer on each weekly notice
that an assignment does not require the board to issue a
decision in that week. Because BVA already has the information
it would be required to publish, CBO estimates that satisfying
the requirement would cost less than $500,000 over the 2024-
2029 period. Any spending would be subject to the availability
of appropriated funds.
On March 12, 2024, CBO transmitted a cost estimate for H.R.
5890, the Review Every Veterans Claim Act of 2023, as ordered
reported by the House Committee on Veterans' Affairs on
December 5, 2023. Section 4 of that bill is identical to H.R.
5870, and CBO's estimates of costs are the same.
The CBO staff contact for this estimate is Logan Smith. The
estimate was reviewed by Christina Hawley Anthony, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
Federal Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4) is inapplicable to H.R. 5870,
as amended.
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.
5870, as amended.
Applicability to Legislative Branch
The Committee finds that H.R. 5870, as amended, 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.
Statement on Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 5870, as amended, would establish or reauthorize a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 would establish the short title of the bill as
the ``Veteran Appeals Transparency Act of 2024.''
Section 2. Board of Veterans' Appeals publication of dates of docket
activity
Section 2 would amend 38 U.S.C. Sec. 7107 by adding a new
subsection stating that would require on a weekly basis, for
each docket, the Board shall publish, on a website of the
Department, notice of the docket dates of the cases assigned to
a Board member for a decision for that week. This new
subsection would also require each published notice to include
a statement that an assignment of a case to a Board member does
not require the Board to issue a decision regarding the case
during such week. This section would also clarify that the
Board's weekly publication of docket dates shall not apply to a
case that has been advanced on the Board's docket or remanded
by the U.S. Court of Appeals for Veterans Claims.
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 (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
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 italics 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. 7107. Appeals: dockets; hearings
(a) Dockets.--(1) Subject to paragraph (2), the Board shall
maintain at least two separate dockets.
(2) The Board may not maintain more than two separate dockets
unless the Board notifies the Committee on Veterans' Affairs of
the Senate and the Committee on Veterans' Affairs of the House
of Representatives of any additional docket, including a
justification for maintaining such additional docket.
(3)(A) The Board may assign to each docket maintained under
paragraph (1) such cases as the Board considers appropriate,
except that cases described in clause (i) of subparagraph (B)
may not be assigned to any docket to which cases described in
clause (ii) of such paragraph are assigned.
(B) Cases described in this paragraph are the following:
(i) Cases in which no Board hearing is requested.
(ii) Cases in which a Board hearing is requested in
the notice of disagreement.
(4) Except as provided in subsection (b), each case before
the Board will be decided in regular order according to its
respective place on the docket to which it is assigned by the
Board.
(b) Advancement on the Docket.--(1) A case on one of the
dockets of the Board maintained under subsection (a) may, for
cause shown, be advanced on motion for earlier consideration
and determination.
(2) Any such motion shall set forth succinctly the grounds
upon which the motion is based.
(3) Such a motion may be granted only--
(A) if the case involves interpretation of law of
general application affecting other claims;
(B) if the appellant is seriously ill or is under
severe financial hardship; or
(C) for other sufficient cause shown.
(c) Manner and Scheduling of Hearings for Cases on a Docket
That May Include a Hearing.--(1) For cases on a docket
maintained by the Board under subsection (a) that may include a
hearing, in which a hearing is requested in the notice of
disagreement, the Board shall notify the appellant whether a
Board hearing will be held--
(A) at its principal location; or
(B) by picture and voice transmission at a facility
of the Department where the Secretary has provided
suitable facilities and equipment to conduct such
hearings.
(2)(A) Upon notification of a Board hearing at the Board's
principal location as described in subparagraph (A) of
paragraph (1), the appellant may alternatively request a
hearing as described in subparagraph (B) of such paragraph or
subparagraph (C) of this paragraph. If so requested, the Board
shall grant such request.
(B) Upon notification of a Board hearing by picture and voice
transmission as described in subparagraph (B) of paragraph (1),
the appellant may alternatively request a hearing as described
in subparagraph (A) of such paragraph or subparagraph (C) of
this paragraph. If so requested, the Board shall grant such
request.
(C)(i) Upon notification of a Board hearing under
subparagraph (A) or (B) of paragraph (1), the appellant may
alternatively request a hearing by picture and voice
transmission--
(I) at a location selected by the appellant; and
(II) via a secure internet platform established and
maintained by the Secretary that protects sensitive
personal information from a data breach.
(ii) If an appellant makes a request under clause (i), the
Board shall grant such request.
(d) Screening of Cases.--Nothing in this section shall be
construed to preclude the screening of cases for purposes of--
(1) determining the adequacy of the record for
decisional purposes; or
(2) the development, or attempted development, of a
record found to be inadequate for decisional purposes.
(e) Policy on Changing Dockets.--The Secretary shall develop
and implement a policy allowing an appellant to move the
appellant's case from one docket to another docket.
(f) Publication of Expected Actions.--(1) On a weekly basis,
for each docket, the Board shall publish, on a website of the
Department, notice of the docket dates of the cases assigned to
a Board member for a decision for that week.
(2) Each notice published under paragraph (1) shall include a
statement that an assignment described in such paragraph does
not require the Board to issue a decision regarding the case
during such week.
(3) Paragraph (1) shall not apply to a case--
(A) that has been advanced under subsection (b); or
(B) remanded by the United States Court of Appeals
for Veterans Claims.
* * * * * * *