Sec. 2. REFORM OF RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS REGARDING CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY SECRETARY OF VETERANS AFFAIRS
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## SEC. 2 REFORM OF RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS REGARDING CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY SECRETARY OF VETERANS AFFAIRS ###
(a)Definitions Section 101 of title 38, United States Code, is amended by adding at the end the following new paragraphs: > > #### “(34) > > The term ‘**agency of original jurisdiction**’ means the activity which entered the original determination with regard to a claim for benefits under laws administered by the Secretary. > > > #### “(35) > > The term ‘**relevant evidence**’ means evidence that tends to prove or disprove a matter in issue. > > > #### “(36) > > The term ‘**supplemental claim**’ means a claim for benefits under laws administered by the Secretary filed by a claimant who had previously filed a claim for the same or similar benefits on the same or similar basis.” > . ###
(b)Notice Regarding Claims Section 5103(a) of such title is amended— ####
(1)in paragraph (1), in the first sentence, by striking “The” and inserting “Except as provided in paragraph (3), the”; ####
(2)in paragraph (2)(B)(i) by striking “, a claim for reopening a prior decision on a claim, or a claim for an increase in benefits;” and inserting “or a supplemental claim;”; and ####
(3)by adding at the end the following new paragraph: > > #### “(3) > > The requirement to provide notice under paragraph
(1)shall not apply with respect to a supplemental claim that is filed within the timeframe set forth in subparagraphs
(B)and
(D)of section 5110(a)(2) of this title.” > . ###
(c)Modification of Rule Regarding Disallowed Claims Section 5103A(f) of such title is amended— ####
(1)by striking “reopen” and inserting “readjudicate”; and ####
(2)by striking “material” and inserting “relevant”. ###
(d)Modification of Duty to Assist Claimants Section 5103A of such title is amended— ####
(1)by redesignating subsections
(e)through
(g)as subsections
(g)through (i), respectively; and ####
(2)by inserting after subsection
(d)the following new subsections: > > ### “(e) Applicability of Duty to Assist > > > ####
(1)> > The Secretary’s duty to assist under this section shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the agency of original jurisdiction’s decision with respect to such claim, or supplemental claim, under section 5104 of this title. > > > #### “(2) > > The Secretary’s duty to assist under this section shall not apply to higher-level review by the agency of original jurisdiction, pursuant to section 5104B of this title, or to review on appeal by the Board of Veterans’ Appeals. > > > ### “(f) Correction of Duty to Assist Errors > > > ####
(1)> > If, during review of the agency of original jurisdiction decision under section 5104B of this title, the higher-level adjudicator identifies or learns of an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision being reviewed, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the higher-level adjudicator shall return the claim for correction of such error and readjudication. > > > #### “(2) > > > #####
(A)> > If the Board of Veterans’ Appeals, during review on appeal of an agency of original jurisdiction decision, identifies or learns of an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision on appeal, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication. > > > ##### “(B) > > Remand for correction of such error may include directing the agency of original jurisdiction to obtain an advisory medical opinion under section 5109 of this title. > > > #### “(3) > > Nothing in this subsection shall be construed to imply that the Secretary, during the consideration of a claim, does not have a duty to correct an error described in paragraph
(1)or
(2)that was erroneously not identified during higher-level review or during review on appeal with respect to the claim.” > . ###
(e)Decisions and Notices of Decisions Subsection
(b)of section 5104 of such title is amended to read as follows: > > ### “(b) > > Each notice provided under subsection
(a)shall also include all of the following: > > > #### “(1) > > Identification of the issues adjudicated. > > > #### “(2) > > A summary of the evidence considered by the Secretary. > > > #### “(3) > > A summary of the applicable laws and regulations. > > > #### “(4) > > Identification of findings favorable to the claimant. > > > #### “(5) > > In the case of a denial, identification of elements not satisfied leading to the denial. > > > #### “(6) > > An explanation of how to obtain or access evidence used in making the decision. > > > #### “(7) > > If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.” > . ###
(f)Binding Nature of Favorable Findings ####
(1)In general Chapter 51 of such title is amended by inserting after section 5104 the following new section: > > ## “§ 5104A Binding nature of favorable findings > > **[**[38 U.S.C. 5104A](/us/usc/t38/s5104A)**]** > > “Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.” > . ####
(2)Clerical amendment The table of sections at the beginning of chapter 51 of such title is amended by inserting after the item relating to section 5104 the following new item:" “5104A. Binding nature of favorable findings.” ". ###
(g)Higher-level Review by Agency of Original Jurisdiction ####
(1)In general Chapter 51 of such title, as amended by subsection (f), is further amended by inserting after section 5104A, as added by such subsection, the following new section: > > ## “§ 5104B Higher-level review by the agency of original jurisdiction > > **[**[38 U.S.C. 5104B](/us/usc/t38/s5104B)**]** > > > ### “(a) In general > > > ####
(1)> > A claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction. > > > #### “(2) > > The Secretary shall approve each request for review under paragraph (1). > > > ### “(b) Time and Manner of Request > > > ####
(1)> > A request for higher-level review by the agency of original jurisdiction shall be— > > > ##### “(A) > > in writing in such form as the Secretary may prescribe; and > > > ##### “(B) > > made within one year of the notice of the agency of original jurisdiction’s decision. > > > #### “(2) > > Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction. The Secretary shall not deny such request for review by an adjudicator at a different office of the agency of original jurisdiction without good cause. > > > ### “(c) Decision > > Notice of a higher-level review decision under this section shall be provided in writing and shall include a general statement— > > > #### “(1) > > reflecting whether evidence was not considered pursuant to subsection (d); and > > > #### “(2) > > noting the options available to the claimant to have the evidence described in paragraph (1), if any, considered by the Department. > > > ### “(d) Evidentiary Record for Review > > The evidentiary record before the higher-level adjudicator shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed. > > > ### “(e) De Novo Review > > A review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction shall be de novo.” > . ####
(2)Clerical amendment The table of sections at the beginning of chapter 51 of such title, as amended by subsection (f), is further amended by inserting after the item relating to section 5104A, as added by such subsection, the following new item:" “5104B. Higher-level review by the agency of original jurisdiction.” ". ###
(h)Options Following Decision by Agency of Original Jurisdiction ####
(1)In general Chapter 51 of such title, as amended by subsection (g), is further amended by inserting after section 5104B, as added by such subsection, the following new section: > > ## “§ 5104C Options following decision by agency of original jurisdiction > > **[**[38 U.S.C. 5104C](/us/usc/t38/s5104C)**]** > > > ### “(a) Within One Year of Decision > > > ####
(1)> > Subject to paragraph (2), in any case in which the Secretary renders a decision on a claim, the claimant may take any of the following actions on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision with respect to that claim: > > > ##### “(A) > > File a request for higher-level review under section 5104B of this title. > > > ##### “(B) > > File a supplemental claim under section 5108 of this title. > > > ##### “(C) > > File a notice of disagreement under section 7105 of this title. > > > #### “(2) > > > #####
(A)> > Once a claimant takes an action set forth in paragraph (1), the claimant may not take another action set forth in that paragraph with respect to the same claim or same issue contained within the claim until— > > > ###### “(i) > > the higher-level review, supplemental claim, or notice of disagreement is adjudicated; or > > > ###### “(ii) > > the request for higher-level review, supplemental claim, or notice of disagreement is withdrawn. > > > ##### “(B) > > Nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph
(1)in succession with respect to a claim or an issue contained within the claim. > > > ##### “(C) > > Nothing in this subsection shall prohibit a claimant from taking different actions set forth in paragraph
(1)with respect to different claims or different issues contained within a claim. > > > ##### “(D) > > The Secretary may, as the Secretary considers appropriate, develop and implement a policy for claimants who— > > > ###### “(i) > > take an action under paragraph (1); > > > ###### “(ii) > > wish to withdraw the action before the higher-level review, supplemental claim, or notice of disagreement is adjudicated; and > > > ###### “(iii) > > in lieu of such action take a different action under paragraph (1). > > > ### “(b) More Than One Year After Decision > > In any case in which the Secretary renders a decision on a claim and more than one year has passed since the date on which the agency of original jurisdiction issues a decision with respect to that claim, the claimant may file a supplemental claim under section 5108 of this title.” > . ####
(2)Clerical amendment The table of sections at the beginning of chapter 51 of such title, as amended by subsection (g), is further amended by inserting after the item relating to section 5104B, as added by such subsection, the following new item:" “5104C. Options following decision by agency of original jurisdiction.” ". ###
(i)Supplemental Claims ####
(1)In general **[**[38 U.S.C. 5108](/us/usc/t38/s5108)**]** Section 5108 of such title is amended to read as follows: > > ## “§ 5108 Supplemental claims > > > ### “(a) In general > > If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record. > > > ### “(b) Duty to Assist > > > ####
(1)> > If a claimant, in connection with a supplemental claim, reasonably identifies existing records, whether or not in the custody of a Federal department or agency, the Secretary shall assist the claimant in obtaining the records in accordance with section 5103A of this title. > > > #### “(2) > > Assistance under paragraph
(1)shall not be predicated upon a finding that new and relevant evidence has been presented or secured.” > . ####
(2)Rule of Construction **[**[38 U.S.C. 5108 note](/us/usc/t38/s5108)**]** Section 5108 of such title, as amended by paragraph (1), shall not be construed to impose a higher evidentiary threshold than the new and material evidence standard that was in effect pursuant to such section on the day before the date of the enactment of this Act. ####
(3)Clerical amendment The table of sections at the beginning of chapter 51 of such title is amended by striking the item relating to section 5108 and inserting the following new item:" “5108. Supplemental claims.” ". ###
(j)Remand to Obtain Advisory Medical Opinion Section 5109 of such title is amended by adding at the end the following new subsection: > > ### “(d) > > > ####
(1)> > The Board of Veterans’ Appeals shall remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion from an independent medical expert under this section if the Board finds that the Veterans Benefits Administration should have exercised its discretion to obtain such an opinion. > > > #### “(2) > > The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.” > . ###
(k)Restatement of Requirement for Expedited Treatment of Returned and Remanded Claims ####
(1)In general Section 5109B of such title is amended to read as follows: > > ## “§ 5109B Expedited treatment of returned and remanded claims > > “The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Veterans Benefits Administration of any claim that is returned by a higher-level adjudicator under section 5104B of this title or remanded by the Board of Veterans’ Appeals.” > . ####
(2)Clerical amendment The table of sections at the beginning of chapter 51 of such title is amended by striking the item relating to section 5109B and inserting the following new item:" “5109B. Expedited treatment of returned and remanded claims.” ". ###
(l)Effective Dates of Awards Section 5110 of title 38, United States Code, is amended— ####
(1)by amending subsection
(a)to read as follows: > > ### “(a) > > > ####
(1)> > Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. > > > #### “(2) > > For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession: > > > ##### “(A) > > A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. > > > ##### “(B) > > A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. > > > ##### “(C) > > A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. > > > ##### “(D) > > A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision. > > > ##### “(E) > > A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision. > > > #### “(3) > > Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.” > ; and ####
(2)in subsection (i), in the first sentence— #####
(A)by striking “reopened” and inserting “readjudicated”; #####
(B)by striking “material” and inserting “relevant”; and #####
(C)by striking “reopening” and inserting “readjudication”. ###
(m)Definition of Award or Increased Award for Purposes of Provisions Relating to Commencement of Period of Payment Section 5111(d)(1) of such title is amended by striking “or reopened award” and inserting “award or award based on a supplemental claim”. ###
(n)Modification of Limitation on Fees Allowable for Representation Section 5904(c) of such title is amended, in paragraphs
(1)and (2), by striking “notice of disagreement is filed” both places it appears and inserting “claimant is provided notice of the agency of original jurisdiction’s initial decision under section 5104 of this title”. ###
(o)Clarification of Board of Veterans’ Appeals Referral Requirements After Order for Reconsideration of Decisions Section 7103(b)(1) of title 38, United States Code, is amended by striking “heard” both places it appears and inserting “decided”. ###
(p)Conforming Amendment Relating to Readjudication Section 7104(b) of such title is amended by striking “reopened” and inserting “readjudicated”. ###
(q)Modification of Procedures for Appeals to Board of Veterans’ Appeals ####
(1)In general Section 7105 of title 38, United States Code, is amended— #####
(A)in subsection (a), by striking the first sentence and inserting “Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary.”; #####
(B)by amending subsection
(b)to read as follows: > > ### “(b) > > > ####
(1)> > > #####
(A)> > Except in the case of simultaneously contested claims, a notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title. > > > ##### “(B) > > A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed. > > > ##### “(C) > > A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board. > > > #### “(2) > > > #####
(A)> > Notices of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees, and may be filed by the claimant, the claimant’s legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian. > > > ##### “(B) > > Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim. > > > ##### “(C) > > Notices of disagreement shall be filed with the Board. > > > #### “(3) > > The notice of disagreement shall indicate whether the claimant requests— > > > ##### “(A) > > a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(b) of this title; > > > ##### “(B) > > an opportunity to submit additional evidence without a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(c) of this title; or > > > ##### “(C) > > a review by the Board without a hearing or the submittal of additional evidence. > > > #### “(4) > > The Secretary shall develop a policy to permit a claimant to modify the information identified in the notice of disagreement after the notice of disagreement has been filed under this section pursuant to such requirements as the Secretary may prescribe.” > ; #####
(C)by amending subsection
(c)to read as follows: > > ### “(c) > > If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except— > > > #### “(1) > > in the case of a readjudication or allowance pursuant to a higher-level review that was requested in accordance with section 5104B of this title; > > > #### “(2) > > as may otherwise be provided by section 5108 of this title; or > > > #### “(3) > > as may otherwise be provided in such regulations as are consistent with this title.” > ; #####
(D)by striking subsection
(d)and inserting the following new subsection (d): > > ### “(d) > > The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.” > ; #####
(E)by striking subsection (e); and #####
(F)in the section heading, by striking “notice of disagreement and”. ####
(2)Clerical amendment The table of sections at the beginning of chapter 71 of such title is amended by striking the item relating to section 7105 and inserting the following new item:" “7105. Filing of appeal.” ". ###
(r)Modification of Procedures and Requirements for Simultaneously Contested Claims Subsection
(b)of section 7105A of such title is amended to read as follows: > > ### “(b) > > > ####
(1)> > The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of thirty days shall be allowed for filing a brief or argument in response thereto. > > > #### “(2) > > Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice.” > . ###
(s)Repeal of Procedures for Administrative Appeals ####
(1)In general Chapter 71 of such title is amended by striking section 7106. ####
(2)Clerical amendment The table of sections at the beginning of chapter 71 of such title is amended by striking the item relating to section 7106. ###
(t)Modifications Relating to Appeals: Dockets; Hearings Section 7107 of such title is amended to read as follows: > > ## “§ 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. If so requested, the Board shall grant such request. > > > ##### “(B) > > Upon notification of a Board hearing by picture and voice transmission as described in subparagraph
(B)of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph
(A)of such paragraph. If so requested, the Board shall grant such request. > > > ### “(d) Screening of Cases > > Nothing in this section shall be construed to preclude the screening of cases for purposes of— > > > #### “(1) > > determining the adequacy of the record for decisional purposes; or > > > #### “(2) > > the development, or attempted development, of a record found to be inadequate for decisional purposes. > > > ### “(e) Policy on Changing Dockets > > The Secretary shall develop and implement a policy allowing an appellant to move the appellant’s case from one docket to another docket.” > . ###
(u)Repeal of Certain Authority for Independent Medical Opinions ####
(1)In general **[**[38 U.S.C. 7109](/us/usc/t38/s7109)**]** Section 7109 of such title is repealed. ####
(2)Conforming amendment Section 5701(b)(1) of such title is amended by striking “or 7109”. ####
(3)Clerical amendment The table of sections at the beginning of chapter 71 of such title is amended by striking the item relating to section 7109. ###
(v)Clarification of Procedures for Review of Decisions on Grounds of Clear and Unmistakable Error Section 7111(e) of such title is amended by striking “, without referral to any adjudicative or hearing official acting on behalf of the Secretary”. ###
(w)Evidentiary Record Before Board of Veterans’ Appeals ####
(1)In general Chapter 71 of such title is amended by adding at the end the following new section: > > ## “§ 7113 Evidentiary record before the Board of Veterans’ Appeals > > **[**[38 U.S.C. 7113](/us/usc/t38/s7113)**]** > > > ### “(a) Cases With No Request for a Hearing or Additional Evidence > > For cases in which a hearing before the Board of Veterans’ Appeals is not requested in the notice of disagreement and no request was made to submit evidence, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. > > > ### “(b) Cases With a Request for a Hearing > > > ####
(1)> > Except as provided in paragraph (2), for cases in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. > > > #### “(2) > > The evidentiary record before the Board for cases described in paragraph
(1)shall include each of the following, which the Board shall consider in the first instance: > > > ##### “(A) > > Evidence submitted by the appellant and his or her representative, if any, at the Board hearing. > > > ##### “(B) > > Evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing. > > > ### “(c) Cases With No Request for a Hearing and With a Request for Additional Evidence > > > ####
(1)> > Except as provided in paragraph (2), for cases in which a hearing is not requested in the notice of disagreement but an opportunity to submit evidence is requested, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal. > > > #### “(2) > > The evidentiary record before the Board for cases described in paragraph
(1)shall include each of the following, which the Board shall consider in the first instance: > > > ##### “(A) > > Evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement. > > > ##### “(B) > > Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.” > . ####
(2)Notification when evidence not considered Section 7104(d) of such title is amended— #####
(A)in paragraph (1), by striking “; and” and inserting a semicolon; #####
(B)by redesignating paragraph
(2)as paragraph (3); and #####
(C)by inserting after paragraph
(1)the following new paragraph (2): > > #### “(2) > > a general statement— > > > ##### “(A) > > reflecting whether evidence was not considered in making the decision because the evidence was received at a time when not permitted under section 7113 of this title; and > > > ##### “(B) > > noting such options as may be available for having the evidence considered by the Department; and” > . ####
(3)Clerical amendment The table of sections at the beginning of chapter 71 of such title is amended by inserting after the item relating to section 7112 the following new item:" “7113. Evidentiary record before the Board of Veterans’ Appeals.” ". ###
(x)Applicability ####
(1)In general **[**[38 U.S.C. 101 note](/us/usc/t38/s101)**]** Except as otherwise provided in this subsection, the amendments made by this section shall apply to all claims for which notice of a decision under section 5104 of title 38, United States Code, is provided by the Secretary of Veterans Affairs on or after the later of— #####
(A)the date that is 540 days after the date of the enactment of this Act; and #####
(B)the date that is 30 days after the date on which the Secretary of Veterans Affairs submits to the appropriate committees of Congress— ######
(i)a certification that the Secretary confirms, without delegation, that the Department of Veterans Affairs has the resources, personnel, office space, procedures, and information technology required— ######
(I)to carry out the new appeals system; ######
(II)to timely address appeals under the new appeals system; and ######
(III)to timely address appeals of decisions on legacy claims; and ######
(ii)a summary of the expectations for performance outcomes that the Secretary used in making the certification under clause (i)(III) and a comparison of such expected performance outcomes with actual performance outcomes with respect to appeals of legacy claims before the effective date of the new appeals system. ####
(2)Collaboration In determining whether and when to make a certification under paragraph (1)(B), the Secretary shall collaborate with, partner with, and give weight to the advice of veterans service organizations and such other stakeholders as the Secretary considers appropriate. ####
(3)Early applicability The Secretary may apply the new appeals system to a claim with respect to which the claimant— #####
(A)receives a notice of a decision under section 5104 of such title after the date of the enactment of this Act and before the applicability date set forth in paragraph (1); and #####
(B)elects to subject the claim to the new appeals system. ####
(4)Phased rollout The Secretary may begin implementation of the new appeals system in phases, with the first phase of such phased implementation beginning on the applicability date set forth in paragraph (1). ####
(5)Treatment of legacy claims With respect to legacy claims, upon the issuance to a claimant of a statement of the case or supplemental statement of the case occurring on or after the applicability date specified in paragraph (1), a claimant may elect to participate in the new appeals system. ####
(6)Publication of applicability date Not later than the date on which the new appeals system goes into effect (or the first phase of the new appeals system goes into effect under paragraph (4), as the case may be), the Secretary shall publish in the Federal Register such date. ####
(7)Definitions In this subsection: #####
(A)Appropriate committees of congress The term “**appropriate committees of Congress**” means— ######
(i)the Committee on Veterans’ Affairs and the Committee on Appropriations of the Senate; and ######
(ii)the Committee on Veterans’ Affairs and the Committee on Appropriations of the House of Representatives. #####
(B)Veterans service organization The term “**veterans service organization**” means any organization recognized by the Secretary for the representation of veterans under section 5902 of title 38, United States Code. ###
(y)Rule of construction **[**[38 U.S.C. 101 note](/us/usc/t38/s101)**]** Nothing in this section or any of the amendments made by this section shall be construed to limit the ability of a claimant to request a revision of a decision under section 5109A or 7111 of title 38, United States Code.
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- 38 USC 5104A
- 38 USC 5104B
- 38 USC 5104C
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Sec. 2
REFORM OF RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS REGARDING CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY SECRETARY OF VETERANS AFFAIRS
Cite38 USC 5104A
Cite38 USC 5104B
Cite38 USC 5104C
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