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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8136 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 8136
To amend title 38, United States Code, to improve the processes by
which a veteran may appeal decisions affecting the provision of
benefits under the laws administered by the Secretary of Veterans
Affairs, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 26, 2024
Mrs. Peltola (for herself, Mr. Moylan, and Mr. Gottheimer) introduced
the following bill; which was referred to the Committee on Veterans'
Affairs, and in addition to the Committee on the Judiciary, for a
period to be subsequently determined by the Speaker, in each case for
consideration of such provisions as fall within the jurisdiction of the
committee concerned
_______________________________________________________________________
A BILL
To amend title 38, United States Code, to improve the processes by
which a veteran may appeal decisions affecting the provision of
benefits under the laws administered by the Secretary of Veterans
Affairs, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``VA Appeals Reform Act of 2024''.
SEC. 2. IMPROVEMENTS TO SYSTEM FOR ADJUDICATION OF CLAIMS FOR BENEFITS
UNDER THE LAWS ADMINISTERED BY THE SECRETARY OF VETERANS
AFFAIRS.
(a) Duty To Assist; Supplemental Claims; Expedited Treatment of
Certain Claims.--Chapter 51 of title 38, United States Code, is
amended--
(1) in section 5103A--
(A) by redesignating subsections (b) through (i) as
subsections (c) through (j), respectively;
(B) by inserting after subsection (a) the following
new subsection:
``(b) Assistance Upon Request of the Claimant.--As part of the
assistance provided under subsection (a), the Secretary shall, not
later than 90 days after the claimant makes a request for assistance
under this subsection, provide any of the following documents:
``(1) The veteran's claims file.
``(2) A paginated copy of each component of each document
in the evidence of record that the Secretary determines is
relevant to the claim.
``(3) The contact information of the individual
adjudicating the claim.
``(4) The contact information and curriculum vitae of any
independent medical expert described in section 5109 of this
title offering an advisory medical opinion in connection with
the claim.
``(5) A copy of any correspondence relating to the claim
between--
``(A) one or more employees of the Department; and
``(B) an employee of the Department and any other
individual.
``(6) Upon the request of the claimant, a copy of any
document relevant to the claim that the claimant adequately
identifies and authorizes the Secretary to obtain that is in
the possession of--
``(A) the Secretary; or
``(B) the head of any Federal department or
agency.''.
(C) in subsection (f) (as so redesignated), by
adding at the end the following new paragraph:
``(3) The duty of the Secretary to provide assistance under this
section to a claimant with respect to a claim under this section shall
continue until such time as the agency of original jurisdiction
schedules a hearing to adjudicate the claim.''; and
(D) in subsection (i) (as so redesignated), by
striking ``except when new and relevant evidence is
presented or secured, as'' and inserting ``except as
provided under the conditions'';
(2) in section 5104(b)--
(A) in paragraph (2), by inserting before the
period at the end ``, including citations to applicable
page numbers.'';
(B) in paragraph (3), by inserting ``, included as
an appendix'' after ``regulations'';
(C) in paragraph (5), by striking ``denial'' and
all that follows through the end of the paragraph and
inserting ``denial--
``(A) an identification of elements not satisfied
leading to the denial; and
``(B) a summary of the rights of the veteran to
appeal such denial.''; and
(D) in paragraph (7), by inserting ``, including
the diagnostic codes used in the determination of the
disability percentage and a citation to the applicable
regulation'' after ``compensation'';
(3) in section 5104B, by amending subsection (c) to read as
follows:
``(c) Evidentiary Record for Review.--(1) In the course of a
higher-level review, the veteran may supplement the evidentiary record
before the higher-level reviewer.
``(2) If, during review of the agency of original jurisdiction
decision, the higher-level reviewer identifies an error on the part of
the agency of original jurisdiction that constitutes a failure to
satisfy its duties under section 5103A of this title, and that error
occurred prior to the agency of original jurisdiction decision being
reviewed, the higher-level reviewer shall return the claim to the
agency of original jurisdiction.'';
(4) in section 5108, by amending subsection (a) to read as
follows:
``(a) In General.--The Secretary shall readjudicate a supplemental
claim, taking into consideration all of the evidence of record when,
with respect to such supplemental claim--
``(1) new and material evidence is presented or secured;
``(2) the Board of Veterans Appeals identifies a clear and
unmistakable error on the part of the agency of original
jurisdiction; or
``(3) a law or regulation enacted after the date of the
denial of the original claim permits the veteran to bring such
supplemental claim.'';
(5) in section 5109A, by adding at the end the following
new subsection:
``(f) In this section, the term `clear and unmistakable error'
includes, with respect to a decision by the Secretary, any of the
following:
``(1) Any error of law, fact, or application of law to
fact--
``(A) that is manifest on the face of such
decision; and
``(B) affected the outcome of such decision.
``(2) The misinterpretation or misapplication of a statute,
regardless of whether such decision otherwise complies with
regulations issued by the Secretary in effect as of the date of
such decision.
``(3) The misinterpretation or misapplication of an
unambiguous regulation, regardless of whether such decision
otherwise complies with the regulations described in paragraph
(2).''; and
(6) by striking section 5109B and inserting the following
new section 5109B:
``Sec. 5109B. Expedited treatment of returned and remanded claims
``(a) In General.--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--
``(1) returned by a higher-level adjudicator under section
5104B of this title; or
``(2) remanded by the Board of Veterans' Appeals.
``(b) Deadline.--(1) Except as provided in paragraph (2), with
respect to any claim described in subsection (a), the Secretary shall
take the actions under such subsection not later than 90 days after the
date on which--
``(A) a higher-level adjudicator returned such claim; or
``(B) the Board of Veterans' Appeals remanded such claim.
``(2) The Board of may, upon motion of the claimant, extend the
deadline under paragraph (1) if the Board determines there is good
cause for such extension.''.
(b) Attorney Fees for Filing of Notice of Intent To Appeal Certain
Decisions.--Section 5904(c) of title 38, United States Code is
amended--
(1) in paragraph (4)--
(A) by striking the enumerator and inserting
``(4)(A)''; and
(B) by striking ``under this paragraph'' and
inserting ``under this subparagraph''; and
(2) by adding at the end, the following new subparagraph:
``(B) A reasonable fee, not to exceed the lesser of $200 or 20
percent of the initial payment from the claimant to the attorney, may
be charged or paid in connection with the filing of a notice of intent
to appeal a decision by the Secretary under section 511 of this title
affecting the provision of benefits to a claimant.''.
(c) Appointment of Administrative Law Judges; Performance Reviews;
Scheduling Conferences.--Chapter 71 of title 38, United States Code, is
amended as follows:
(1) In section 7101--
(A) in subsection (c)(1)--
(i) by amending subparagraph (A) to read as
follows:
``(A) The Chairman may from time to time designate a retired
officer of the Armed Forces who previously served as a military judge
(as defined in section 801 of title 10 (article 1 of the Uniform Code
of Military Justice)) to serve as an acting member of the Board. Except
as provided in subparagraph (B), any such designation shall be for a
period not to exceed 180 days, as determined by the Chairman.''; and
(ii) by adding at the end the following new
subparagraph:
``(E) An individual designated pursuant to subparagraph (A) shall
complete a program of training with respect to the laws administered by
the Secretary that the Secretary determines appropriate.''; and
(B) in subsection (d)--
(i) in subparagraph (F), by striking ``;
and'' and inserting a semicolon;
(ii) by redesignating subparagraph (G) as
subparagraph (H); and
(iii) by inserting after subparagraph (F),
the following new subparagraph:
``(G) the number of decisions of the Board remanded or
returned to the Board, disaggregated by the Board member who
issued the final decision so remanded or returned; and''.
(2) In section 7101A--
(A) in subsection (a)(2), by striking ``shall be''
and all that follows through the end of the paragraph
and inserting ``shall be--
``(A) an administrative law judge appointed under section
3105 of title 5; and
``(B) a member in good standing of the bar of a State.'';
and
(B) in subsection (c)(1)--
(i) in subparagraph (B), by striking ``Not
less than one year after the job performance
standards under subsection (f) are initially
established, and not less often than once every
three years thereafter'' and inserting ``Under
the conditions described in subparagraph (C)'';
and
(ii) by adding at the end the following new
subparagraph:
``(C) The performance review panel shall review the job performance
of a member of the Board--
``(i) not less than one year after the job performance
standards under subsection (f) are initially established;
``(ii) not less often than once every three years after
such standards are established; and
``(iii) when, during any 12-month-period, the Court of
Appeals for Veterans Claims or a higher authority remands to
the Board more than 60 percent of the decisions issued by such
member.''.
(3) In section 7102--
(A) by redesignating subsection (c) as subsection
(d); and
(B) by inserting after subsection (b) the following
new subsection:
``(c) In the case of a decision of the Board that is remanded to
the Board by the Court of Appeals for Veterans Claims or a higher
authority, any subsequent proceeding associated with the decision so
remanded may not be assigned to the member of the Board who issued such
decision.''.
(4) In section 7105--
(A) in the heading, by inserting ``; scheduling
conferences'' after ``Filing of appeal'';
(B) by redesignating subsections (c) and (d) as
subsections (d) and (e), respectively; and
(C) by inserting after subsection (b) the following
new subsection:
``(c)(1) Not later than 90 days after a veteran files a notice of
disagreement under subsection (a), the Board of Veterans Appeals shall
hold, by picture and voice transmission, a conference with such veteran
and the representative of such veteran, if any, to schedule such
hearing.
``(2) During the conference under paragraph (1), the Board shall--
``(A) provide the veteran--
``(i) not fewer than 30 days for such veteran to
request a hearing;
``(ii) not fewer than 30 days to secure counsel for
such hearing;
``(iii) not fewer than 60 days for such veteran to
submit to the Board the specific determinations or
findings of the Board with which the claimant
disagrees;
``(iv) not fewer than 120 days for such veteran to
submit evidence relating to the determinations
described in clause (iii);
``(v) information relating to the rules governing
an appeal under this chapter; and
``(vi) contact information for a representative of
the Board, including an electronic mail address; and
``(B) schedule a tentative date for such hearing.
``(3) The Secretary may, upon motion of the veteran, extend the
deadlines described in clauses (i) through (iv) of subparagraph (A) for
good cause, including the failure of the Secretary to provide requested
relevant or material information.''.
(5) In section 7107--
(A) in subsection (a)--
(i) by striking ``two separate dockets''
each place it appears and inserting ``one
docket''; and
(ii) in paragraph (3)--
(I) by striking ``(A)'';
(II) by striking ``, except that
cases'' and all that follows through
``are assigned''; and
(III) by striking subparagraph (B);
and
(B) in subsection (e), by inserting ``, if
applicable'' before the period at the end; and
(C) by adding at the end the following new
subsection:
``(f) Hearing Transcripts.--The Board, upon the request of the
veteran and at no cost to such veteran, provide such veteran with a
copy of the transcript of the hearing and a digital recording of any
picture and voice transmission considered during such hearing.''.
(6) In section 7111, by adding at the end the following new
subsection:
``(g) In this section, the term `clear and unmistakable error'
includes, with respect to a decision of the Board, any of the
following:
``(1) Any error of law, fact, or application of law to
fact--
``(A) that is manifest on the face of such
decision; and
``(B) affected the outcome of such decision.
``(2) The misinterpretation or misapplication of a statute,
regardless of whether such decision otherwise complies with
regulations issued by the Secretary in effect as of the date of
such decision.
``(3) The misinterpretation or misapplication of an
unambiguous regulation, regardless of whether such decision
otherwise complies with the regulations described in paragraph
(2).'';
(7) By adding at the end the following new section (and
conforming the table of chapters at the beginning of such
chapter accordingly):
``Sec. 7114. Program to establish electronic case management and filing
system
``(a) In General.--The Secretary shall establish an electronic
filing and case management system for the purposes of processing
appeals under this chapter.
``(b) Elements.--The system required by subsection (a) shall
include--
``(1) an internet database of documents relating to appeals
under this chapter;
``(2) subject to subsection (d), a mechanism by which
attorneys approved by the Office of the General Counsel of the
Department to represent a veteran before the Board of Veterans
Appeals may access such internet database to an extent the
Secretary determines appropriate; and
``(3) a mechanism by which a veteran, or the attorney or
representative of a veteran, can submit to the Board of
Veterans Appeals documents relating to an appeal under this
chapter, in portable document format or other commercially
available format, through such internet database.
``(c) Training.--Not later than one year after the date on which
the Secretary establishes the program required by subsection (a), the
Secretary shall make available to attorneys described in subsection
(b)(2) training on such program.
``(d) Certification of Good Standing.--As a condition of access to
the internet database described in subsection (b)(2), the Secretary may
require an attorney to provide to the Secretary a certificate of good
standing from a State court or Federal district court.
``(e) Required Consideration.--In carrying out subsection (a), the
Secretary shall consider the case management/electronic filing system
(CM/ECF) administered by United States District Courts.''.
(d) Disclosure of Certain Medical Records.--Section 7332(b)(2) of
title 38, United States Code, is amended by adding at the end the
following new subparagraphs:
``(J) To the patient, and the attorney of such patient, if
any, for the purposes of using such record in connection with
an appeal under chapter 71 of this title.
``(K) To the Court of Appeals for Veterans Claims, for
purposes of filing an appeal under chapter 72 of this title.''.
(e) Deadline for Certain Mechanism.--The Secretary of Veterans
Affairs shall establish the mechanism described in paragraph (3) of
subsection (b) of section 7112 of title 38, United States Code, as
added by subsection (c)(7), by not later than 180 after the date of the
enactment of this Act.
SEC. 3. EXPANSION OF JURISDICTION OF UNITED STATES COURT OF APPEALS FOR
VETERANS CLAIMS AND UNITED STATES COURT OF APPEALS FOR
THE FEDERAL CIRCUIT.
(a) United States Court of Appeals for Veterans Claims.--
(1) Expansion.--Section 502 of title 38, United States
Code, is amended by striking ``the Federal Circuit'' and
inserting ``Veterans Claims''.
(2) Scope of review of certain claims.--Section 7261 of
such title is amended--
(A) in paragraph (4) of subsection (a), by striking
``clearly erroneous'' and inserting ``arbitrary and
capricious'';
(B) by striking subsection (c);
(C) by redesignating subsection (d) as subsection
(c); and
(D) in subsection (c) (as so redesignated), by
striking ``shall review only questions raised as to
compliance with and the validity of the regulation''
and inserting ``shall review such decision and the
accompanying findings of fact by trial de novo''.
(b) United States Court of Appeals for the Federal Circuit.--
(1) Expansion.--Section 1295(a) of title 28, United States
Code, is amended--
(A) in paragraph (13), by striking ``; and'';
(B) in paragraph (14), by striking the period at
the end and inserting ``; and''; and
(C) by adding at the end the following new
paragraph:
``(15) of an appeal from a final decision of the United
States Court of Appeals for Veterans Claims.''.
(2) Repeal of certain provision.--Section 7292 of title 38,
United States Code, is repealed.
(3) Conforming amendments.--Section 7252 of such title is
amended by striking subsection (c).
<all>
Introduced in House
Introduced in House
Referred to the Committee on Veterans' Affairs, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on Veterans' Affairs, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Disability Assistance and Memorial Affairs.
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