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H.R. 2288 (115th): Veterans Appeals Improvement and Modernization Act of 2017


It takes six years on average for veterans to resolve an appeal for a disability claim with the VA. A new law aims to cut that. The Veterans Appeals Improvement and Modernization Act, signed into law last week, aims to cut that backlog.

Context

Any time a veteran files a claim for disability that the Department of Veterans Affairs (VA) rejects, they have the right to appeal. But the average wait before a final decision is six years — and one service member has even waited 25 years. As a result, the number of pending appeals has increased sharply, rising in the past two years alone from 380,000 to now 470,000 pending appeals.

The Department of Veterans Affairs (VA) currently spends about $63.7 billion per year on 4.1 million veterans with disabilities related to their time in service.

What the law does

The law established three new “lanes” for veterans appeals, to separate them out into separate categories and hopefully ease the speed with which they go through, rather than all funneling them together into one bureaucratic catch-all as before.

  1. The “Board lane” instantly moves a pending appeal over to the Board of Veterans’ Appeals and skips the intervening layers of VA hierarchy.
  2. “The local higher level review lane” moves a rejected claim to another adjudicator higher up on the VA hierarchy to take a second look at.
  3. The “new evidence lane” allows veterans to submit new evidence related to their disability claim.

While the legislation directs the VA to create this structure for appeals, it does not include specific plans for implementation. Rather, the VA is directed to define which appeals will go in which lane and to implement that structure. The legislation was introduced as H.R. 2288 in the House by Rep. Mike Bost (R-IL12), and as S. 1024 in the Senate by Sen. Johnny Isakson (R-GA).

What supporters say

Supporters contend the law will help ensure faster and more responsive results for veterans waiting on their disability appeals, rather than waiting years as has become all too typical.

“This new law is vitally important for America’s heroes and their families. Too many veterans are faced with intolerable delays during the VA’s benefits claims appeal process,” House lead sponsor Bost said in a press release. “By modernizing the system, we can now ensure they get the help they need in a more efficient and effective manner.”

“No longer will veterans be kept waiting for years to get an answer to their appeals,” President Trump said during the signing ceremony. “They will receive timely updates and they will get decisions much more quickly, in a fraction of the time.”

What opponents say

Despite the bill’s unanimous passage in Congress, some outside voices opposed it nonetheless, on the grounds that it restricts due process rights from veterans due to the elimination of a little-known legal provision called “duty to assist.”

“The duty to assist… [would require] the VA Secretary to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit,” Executive Director of Military-Veterans Advocacy, Inc. John B. Wells wrote in an op-ed for The Hill. “Since… the Secretary has access to all of the documents held by the federal government, this duty has not only streamlined appeals but resulted in more favorable outcomes.”

But the bill does not contain the duty to assist provision. “The timing of this action is critical, since unlike other federal adjudication systems, veterans are not allowed to hire attorneys until the appellate stage,” Wells wrote. “Therefore, a veteran is unrepresented during the initial claim process.”

Votes

The House bill first attracted 26 cosponsors, 15 Republicans and 11 Democrats. The Senate version had 31 cosponsors, 18 Democrats or Democrat-affiliated independents and 13 Republicans.

After being introduced in May, the bill passed the House unanimously 418–0on May 23. It then passed the Senate on August 1 by unanimous consent, in which no significant opposition was recorded and no record of individual votes was cast.

President Trump signed it into law on August 23, at the American Legion national convention in Nevada and flanked by Veterans Affairs Secretary David Shulkin.

Last updated Sep 21, 2017. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Aug 24, 2017.


Veterans Appeals Improvement and Modernization Act of 2017

This bill revises the Department of Veterans Affairs (VA) disability claims appeals system.

(Sec. 2) Specifically, the bill requires the VA to assist with a claim or supplemental claim up until a veteran claimant is provided notice of a decision. Additionally, the VA must assist a veteran during a higher-level review if an adjudicator identifies an error on the part of the agency of original jurisdiction.

The bill also requires the VA to provide a notice of decision to veterans regarding decisions affecting the provision of benefits that includes specific information, such as a summary of the applicable laws and an explanation of how to obtain evidence used in making the decision.

Under the bill, findings that are favorable to the veteran are considered binding unless clear and convincing evidence is shown to rebut the findings.

The bill permits a veteran to appeal a decision within one year by (1) requesting a review of the agency of original jurisdiction's decision by a higher-level adjudicator using the same evidentiary record; (2) filing a supplemental claim with a regional office that includes the opportunity to submit additional evidence and have a hearing; or (3) appealing directly to the Board of Veterans' Appeals, with the opportunity to select an expedited review to submit new evidence but without a hearing, or to select a review with the option to submit new evidence and request a hearing.

The bill authorizes veterans to retain the services of attorneys and accredited agents who charge a fee when the agency of original jurisdiction provides notice of the original decision.

The bill prescribes specific procedures on the filing of a notice of disagreement with the Board of Veterans' Appeals, including form and timing. If no notice of disagreement is filed, the decision becomes final except in certain circumstances.

The bill modifies the maintenance of dockets by the Board of Veterans' Appeals and the procedures for advancing the docket and holding hearings.

The bill sets forth the type of evidence that is permitted in the record for cases with a request for hearing, and also for cases with no request for a hearing. Additionally, the bill requires the Board of Veterans' Appeals to provide written notice to the appellant if the board does not review evidence that the veteran did not submit in time.

The bill requires the VA, prior to full implementation, to certify to Congress that it has sufficient resources and personnel to carry out the existing and updated appeals systems.

(Sec. 3) Under the bill, the VA must submit a comprehensive plan for resolving pending appeals, and implementing the updated appeals system.

(Sec. 4) The bill authorizes the VA to carry out various pilot programs to test the updated appeals system and alternative processes as long as it notifies Congress of such testing.

(Sec. 5) Lastly, the bill requires the VA to publish information on the VA's website regarding the processing of existing appeals and appeals in the updated system.