Sec. 8. Reform of rights and processes relating to appeals of decisions regarding claims for benefits under laws administered by Secretary of Veterans Affairs
2,840 words·~13 min read·
/bill/115/s/152/is/section-8A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Section 101 is amended by adding at the end the following new paragraphs: The term agency of original jurisdiction means the activity which entered the original determination with regard to a claim for benefits under laws administered by the Secretary. The term relevant evidence means evidence that tends to prove or disprove a matter in issue. . Section 5103(a) is amended— in paragraph (1), in the first sentence, by striking The and inserting Except as provided in paragraph (3), the ; in paragraph (2)(B)(i) by striking , a claim for reopening a prior decision on a claim, or a claim for an increase in benefits; and inserting or a supplemental claim; ; and by adding at the end the following new paragraph:
The requirement to provide notice under paragraph
(1)shall not apply with respect to a supplemental claim that is filed within the time frame set forth in subparagraphs
(B)and
(D)of section 5110(a)(2) of this title. . Section 5103A(f) is amended— by striking reopen and inserting readjudicate ; and by striking material and inserting relevant . Section 5103A(a) is amended— in paragraph (1), by striking The and inserting Except as otherwise provided in this subsection, the ; and by adding at the end the following new paragraphs: The Secretary’s duty to assist under paragraph
(1)shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the decision of the agency of original jurisdiction with respect to such claim, or supplemental claim, under section 5104 of this title. The Secretary’s duty to assist under paragraph
(1)shall not apply to— higher-level review by the agency of original jurisdiction, pursuant to section 5104B of this title; or to review on appeal by the Board of Veterans’ Appeals. . Section 5103A is amended— by redesignating subsections
(e)through
(g)as subsections
(f)through (h), respectively; and by inserting after subsection
(d)the following new subsection: If, during review of the agency of original jurisdiction decision under section 5104B of this title, the higher-level reviewer identifies an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision being reviewed, unless the claim can be granted in full, the higher-level reviewer shall return the claim for correction of such error and readjudication. If the Board, during review on appeal of a decision of the agency of original jurisdiction, identifies an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title, and that error occurred prior to the decision of the agency of original jurisdiction on appeal, unless the claim can be granted in full, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication. Remand for correction of an error under suparagraph
(A)may include directing the agency of original jurisdiction to obtain an advisory medical opinion under section 5109 of this title . Subsection
(b)of section 5104 is amended to read as follows: In any case where the Secretary denies a benefit sought, the notice required by subsection
(a)shall also include all of the following: Identification of the issues adjudicated. A summary of the evidence considered by the Secretary. A summary of the applicable laws and regulations. Identification of findings favorable to the claimant. Identification of elements not satisfied leading to the denial. An explanation of how to obtain or access evidence used in making the decision. If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation. . Chapter 51 is amended inserting after section 5104 the following new section: Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding. . The table of sections at the beginning of chapter 51 is amended by inserting after the item relating to section 5104 the following new item: 5104A. Binding nature of favorable findings. . Chapter 51, as amended by subsection (f), is further amended by inserting after section 5104A, as added by such subsection, the following new section: A claimant may request a de novo review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction. A request for higher-level review by the agency of original jurisdiction shall be— in writing in such form as the Secretary may prescribe; and made within one year of the notice of the agency of original jurisdiction’s decision. Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction. Notice of a higher-level review decision under this section shall be provided in writing. The evidentiary record before the higher-level reviewer shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed. . The table of sections at the beginning of chapter 51, as amended by subsection (f), is further amended by inserting after the item relating to section 5104A, as added by such subsection, the following new item: 5104B. Higher-level review by the agency of original jurisdiction. . Section 5108 is amended to read as follows: If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration any evidence added to the record prior to the former disposition of the claim. . The table of sections at the beginning of chapter 51 is amended by striking the item relating to section 5108 and inserting the following new item: 5108. Supplemental claims. . Section 5109 is amended by adding at the end the following new subsection: The Board of Veterans’ Appeals may remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion under this section to correct an error on the part of the agency of original jurisdiction to satisfy its duties under section 5103A of this title when such error occurred prior to the decision of the agency of original jurisdiction on appeal. The remand instructions set forth by the Board shall include the questions to be posed to the independent medical expert providing the advisory medical opinion. . Section 5110 is amended— by amending subsection
(a)to read as follows: Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession: A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision. Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim. ; and in subsection (i), in the first sentence— by striking reopened and inserting readjudicated ; by striking material and inserting relevant ; and by striking reopening and inserting readjudication . Section 5111(d)(1) is amended by striking or reopened award and inserting award or award based on a supplemental claim . Section 5904(c) is amended, in paragraphs
(1)and (2), by striking notice of disagreement is filed both places it appears and inserting claimant is provided notice of the agency of original jurisdiction’s initial decision under . section 5104 of this title Section 7103(b)(1) is amended by striking heard both places it appears and inserting decided . Section 7104(b) is amended by striking reopened and inserting readjudicated . Section 7105 is amended— in subsection (a)— by striking the first sentence and inserting Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary. ; and by striking hearing and ; by amending subsection
(b)to read as follows: Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title. A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed. A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board. Notices of disagreement shall be in writing, shall set out specific allegations of error of fact or law, and may be filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian. Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim. Notices of disagreement shall be filed with the Board. The notice of disagreement shall indicate whether the claimant requests— a hearing before the Board; an opportunity to submit additional evidence without a hearing before the Board; or a review by the Board without a hearing or submission of additional evidence. If the claimant does not expressly request a hearing before the Board in the notice of disagreement, no hearing before the Board may be held. ; by amending subsection
(c)to read as follows: If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim may not thereafter be readjudicated or allowed, except as may otherwise be provided by section 5104B or 5108 of this title or such regulations as the Secretary may promulgate that are consistent with this title. ; by striking subsection
(d)and inserting the following new subsection (d): The Board of Veterans’ Appeals may dismiss any appeal which fails to allege specific error of fact or law in the decision being appealed. ; by striking subsection (e); and in the section heading, by striking . notice of disagreement and The table of sections at the beginning of chapter 71 is amended by striking the item relating to section 7105 and inserting the following new item: 7105. Filing of appeal. . Subsection
(b)of section 7105A is amended to read as follows: The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of thirty days shall be allowed for filing a brief or argument in response thereto. 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. . Chapter 71 is amended by striking section 7106. The table of sections at the beginning of chapter 71 is amended by striking the item relating to section 7106. Section 7107 is amended to read as follows: The Board shall maintain two separate dockets as follows: A non-hearing option docket shall be maintained for cases in which no Board hearing is requested and no additional evidence will be submitted. A separate and distinct hearing option docket shall be maintained for cases in which a Board hearing is requested in the notice of disagreement or in which no Board hearing is requested, but the appellant requests, in the notice of disagreement, an opportunity to submit additional evidence. Except as provided in subsection (b), each case before the Board will be decided in regular order according to its respective place on the Board’s non-hearing option docket or the hearing option docket. A case on either the Board’s non-hearing option docket or hearing option docket may, for cause shown, be advanced on motion for earlier consideration and determination. Any such motion shall set forth succinctly the grounds upon which the motion is based. Such a motion may be granted only— if the case involves interpretation of law of general application affecting other claims; if the appellant is seriously ill or is under severe financial hardship; or for other sufficient cause shown. For cases on the Board hearing option docket in which a hearing is requested in the notice of disagreement, the Board shall notify the appellant whether a Board hearing will be held— at its principal location, or by picture and voice transmission at a facility of the Department where the Secretary has provided suitable facilities and equipment to conduct such hearings. Upon notification of a Board hearing at the Board’s principal location as described in subparagraph
(A)of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph
(B)of such paragraph. If so requested, the Board shall grant such request. Upon notification of a Board hearing by picture and voice transmission as described in subparagraph
(B)of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph
(A)of such paragraph. If so requested, the Board shall grant such request. Nothing in this section shall be construed to preclude the screening of cases for purposes of— determining the adequacy of the record for decisional purposes; or the development, or attempted development, of a record found to be inadequate for decisional purposes. . Chapter 71 is amended by striking section 7109. The table of sections at the beginning of chapter 71 is amended by striking the item relating to section 7109. Section 5701(b)(1) is amended by striking or 7109 . Section 7111(e) is amended by striking , without referral to any adjudicative or hearing official acting on behalf of the Secretary . Chapter 71 is amended by adding at the end the following new section: For cases in which a hearing before the Board of Veterans' Appeals is not requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. Except as provided in subparagraph (B), for cases on the hearing option docket in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. The evidentiary record before the Board for cases on the hearing option docket in which a hearing is requested, shall include each of the following, which the Board shall consider in the first instance: Evidence submitted by the appellant and his or her representative, if any, at the Board hearing. Evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing. Except as provided in subparagraph (B), for cases on the hearing option docket in which a hearing is not requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal. The evidentiary record before the Board for cases on the hearing option docket in which a hearing is not requested, shall include each of the following, which the Board shall consider in the first instance: Evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement. Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement. . The table of sections at the beginning of chapter 71 is amended by inserting after the item relating to section 7112 the following new item: 7113. Evidentiary record before the Board of Veterans' Appeals. .