IN THE SENATE OF THE UNITED STATES
April 25, 2017
Mr. Sullivan (for himself and Mr. Casey) introduced the following bill; which was read twice and referred to the Committee on Veterans' Affairs
To direct the Secretary of Veterans Affairs to carry out a pilot program to provide veterans the option of using an alternative appeals process to more quickly determine claims for disability compensation, and for other purposes.
This Act may be cited as the
Express Appeals Act of 2017.
Department of Veterans Affairs pilot program on fully developed appeals
The Secretary of Veterans Affairs shall carry out a pilot program to provide the option of an alternative appeals process that shall more quickly determine such appeals in accordance with this section.
In accordance with paragraph (2), a claimant may elect to file a fully developed appeal under the pilot program under subsection (a) by filing with the Secretary the following:
The notice of disagreement under chapter 71 of title 38, United States Code, along with the written election of the claimant to have the appeal determined under the pilot program.
All evidence that the claimant believes is needed for the appeal as of the date of the filing.
A statement of the argument in support of the claim, if any.
A claimant shall make an election under paragraph (1) as part of the notice of disagreement filed by the claimant in accordance with paragraph (1)(A).
At any time, a claimant who makes an election under paragraph (1) may elect to revert to the standard appeals process. Such a reversion shall be final.
A claimant described in subparagraph (A), or a claimant who makes an election under paragraph (1) but is later determined to be ineligible for the pilot program under subsection (a), shall revert to the standard appeals process without any penalty to the claimant other than the loss of the docket number associated with the fully developed appeal.
In providing claimants with notices of the determination of a claim during the period in which the pilot program under subsection (a) is carried out, the Secretary shall conduct outreach as follows:
The Secretary shall provide to the claimant (and to the representative of record of the claimant, if any) information regarding—
the pilot program, including the advantages and disadvantages of the program;
how to make an election under paragraph (1);
the limitation on the use of new evidence described in paragraph (3) of subsection (c) and the development of information under paragraph (4) of such subsection; and
the ability of the claimant to seek advice and education regarding such process from veterans service organizations, attorneys, and claims agents recognized under chapter 59 of title 38, United States Code.
The Secretary shall collaborate, partner with, and give weight to the advice of the three veterans service organizations with the most members to publish on the Internet website of the Department of Veterans Affairs an online tutorial explaining the advantages and disadvantages of the pilot program.
Treatment by Department and Board
Upon the election of a claimant to file a fully developed appeal pursuant to subsection (b)(1), the Secretary shall—
not provide the claimant with a statement of the case nor require the claimant to file a substantive appeal; and
transfer jurisdiction over the fully developed appeal directly to the Board of Veterans’ Appeals.
The Board of Veterans’ Appeals shall—
maintain fully developed appeals on a separate docket than standard appeals;
decide fully developed appeals in the order that the fully developed appeals are received on the fully developed appeal docket;
except as provided by subparagraph (B), decide not more than one fully developed appeal for each four standard appeals decided; and
to the extent practicable, decide each fully developed appeal by the date that is one year following the date on which the claimant files the notice of disagreement.
Beginning one year after the date on which the pilot program under subsection (a) commences, the Board may adjust the number of standard appeals decided for each fully developed appeal under subparagraph (A)(iii) if the Board determines that such adjustment is fair for both standard appeals and fully developed appeals.
Limitation on use of new evidence
Except as provided by subparagraphs (B) and (C)—
a claimant may not submit or identify to the Board of Veterans’ Appeals any new evidence relating to a fully developed appeal after filing such appeal unless the claimant reverts to the standard appeals process pursuant to subsection (b)(3); and
if a claimant submits or identifies any such new evidence, such submission or identification shall be deemed to be an election to make such a reversion pursuant to subsection (b)(3).
Evidence gathered by Board
Subparagraph (A) shall not apply to evidence developed pursuant to paragraphs (4) and (5). The Board shall consider such evidence in the first instance without consideration by the Veterans Benefits Administration.
Representative of record
The representative of record of a claimant for appeals purposes, if any, shall be provided an opportunity to review the fully developed appeal of the claimant and submit any additional arguments or evidence that the representative determines necessary during a period specified by the Board for purposes of this subparagraph.
Prohibition on remand for additional development
If the Board of Veterans’ Appeals determines that a fully developed appeal requires Federal records, independent medical opinions, or new medical examinations, the Board shall—
in accordance with paragraph (5), take such actions as may be necessary to develop such records, opinions, or examinations in accordance with section 5103A of title 38, United States Code;
retain jurisdiction of the fully developed appeal without requiring a determination by the Veterans Benefits Administration based on such records, opinions, or examinations;
ensure the claimant, and the representative of record of a claimant, if any, receives a copy of such records, opinions, or examinations; and
provide the claimant a period of 90 days after the date of mailing such records, opinions, or examinations during which the claimant may provide the Board any additional evidence without requiring the claimant to make a reversion pursuant to subsection (b)(3).
The Board of Veterans’ Appeals shall establish an office to develop Federal records, independent medical opinions, and new medical examinations pursuant to paragraph (4)(A) that the Board determines necessary to decide a fully developed appeal.
The Secretary shall—
ensure that the Veterans Benefits Administration cooperates with the Board of Veterans’ Appeals in carrying out subparagraph (A); and
transfer employees of the Veterans Benefits Administration who, prior to the enactment of this Act, were responsible for processing claims remanded by the Board of Veterans’ Appeals to positions within the office of the Board established under subparagraph (A) in a number the Secretary determines sufficient to carry out such subparagraph.
Notwithstanding section 7107 of title 38, United States Code, the Secretary may not provide hearings with respect to fully developed appeals. If a claimant requests to hold a hearing pursuant to such section 7107, such request shall be deemed to be an election to revert to the standard appeals process pursuant to subsection (b)(3).
The Secretary shall carry out the pilot program under subsection (a) for a five-year period beginning one year after the date of the enactment of this Act. This section shall apply only to fully developed appeals that are filed during such period.
During each year in which the pilot program under subsection (a) is carried out, the Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a report on the pilot program. The first such report shall be submitted by not later than 180 days after the date on which the pilot program commences. Each report shall include the following:
For the period covered by the report—
the number of claimants who filed a fully developed appeal under the pilot program;
the average processing time for each such appeal, measured by each phase of the appeal, and, if the processing time for appeals exceed one year, the reasons for such processing time;
a summary of reasons for which the development of evidence was required under subsection (c)(5);
the number of issues decided, listed by the disposition of the issue;
of the number identified in subparagraph (D), the number of issues for which evidence was not so developed, listed by the disposition of the issue;
of the number of fully developed appeals decided by the Board of Veterans’ Appeals, the number of cases from each agency of original jurisdiction, listed by the disposition of the issue;
the number of fully developed appeals appealed to the Court of Appeals for Veterans Claims, listed by the disposition of the case;
the number of reversions made under subsection (b)(3); and
any reasons for why a claimant was determined to be ineligible to participate in the pilot program.
A review, made in conjunction with veterans service organizations, of the efforts of the Secretary to provide clear rating decisions and improve disability rating notification letters, including with respect to—
the opinions of veterans service organizations regarding such efforts; and
how the pilot program improves such efforts.
A recommendation for any changes to improve the pilot program.
An assessment of the feasibility and advisability of expanding the pilot program.
Not later than one day after the date of the enactment of this Act, the Secretary shall publish interim guidance on the pilot program under subsection (a). Not later than 90 days after such date of enactment, the Secretary shall prescribe regulations to carry out such pilot program.
In this section:
The term claimant has the meaning given that term in section 5100 of title 38, United States Code.
The term compensation has the meaning given that term in section 101 of title 38, United States Code.
Fully developed appeal
The term fully developed appeal means an appeal of a claim for disability compensation that is—
filed by a claimant in accordance with subsection (b)(1); and
considered in accordance with this section.
The term standard appeal means an appeal of a claim for disability compensation that is not a fully developed appeal.