(a) Prohibition on denial of claims for benefits under laws administered by Secretary of Veterans Affairs on sole basis that veteran failed to appear for certain medical examination
Subsection (d) of section 5103A of title 38, United States Code, is amended—
in the heading, by striking compensation claims and inserting claims for benefits ;
in paragraph (2), by striking treat an examination or opinion as being necessary to make a decision on a claim for purposes of and inserting provide for a medical examination or obtain a medical opinion under ; and
by adding at the end the following new paragraph:
If a veteran fails to appear for a medical examination provided by the Secretary in conjunction with a claim for a benefit under a law administered by the Secretary, the Secretary may not deny such claim on the sole basis that such veteran failed to appear for such medical examination.
(b) Improvements to efficiency of adjudications and appeals of claims for benefits under laws administered by Secretary of Veterans Affairs
(1) Annual report on length of adjudications
(A) In general
Section 5109B of title 38, United States Code, is amended—
by striking The Secretary and inserting (a) In general.— The Secretary ; and
by adding at the end the following new subsection:
(b) Annual report
The Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate an annual report that includes, with respect to the period covered by the report—
the average length of time a claim (or an issue within a claim) that was remanded by the Board of Veterans’ Appeals was or has been pending before the Secretary after such remand;
the number of cases that advanced on the docket by reason of a motion that was filed under section 7107(b) of this title and on which the Board ruled, disaggregated by—
whether a motion was granted or denied; and
the reason provided for the motion; and
the number of appeals dismissed by the Board, disaggregated by—
whether or not the dismissal was by reason of the death of the appellant; and
in the case of a dismissal by reason of the death of the appellant, whether or not such death was a result of suicide.
(B) Deadline
The Secretary of Veterans Affairs shall submit the first report required by subsection (b) of section 5109B of such title (as added by subparagraph (A)) by not later than one year after the date of the enactment of this Act.
(2) Guidelines for advancement of cases on docket of Board
Not later than one year after the date of the enactment of this Act, the Secretary of Veterans Affairs, in consultation with the Board of Veterans’ Appeals and the General Counsel of the Department of Veterans Affairs, shall prescribe guidelines for the advancement of a case on the docket of the Board on a motion for earlier consideration and determination under section 7107(b)(3) of title 38, United States Code. Such guidelines shall include the type of evidence that may be submitted with the motion for the advancement of the case to show grounds for such a motion.
(3) Requirement To track certain claims for benefits
(A) In general
Chapter 51 of title 38, United States Code, is amended by inserting after section 5109B the following new section:
5109C. Requirement to track and maintain information on certain claims for benefits; notice of certain assignments
(a) In general
The Secretary shall use technology to track and maintain information (including information with respect to timeliness) on—
claims for benefits under the laws administered by the Secretary (including issues within such claims) that are—
continuously pursued in accordance with—
sections 5104C(a) and 5110(a)(2) of this title; or
any other policy established by the Secretary;
filed in the National Work Queue (or any successor system) but have not been assigned to an office of the Veterans Benefits Administration for adjudication;
afforded expeditious treatment by the Veterans Benefits Administration pursuant to section 5109B of this title or any other policy established by the Secretary;
remanded by the Board of Veterans’ Appeals to the Secretary pursuant to section 7104 of this title; or
pending a hearing by the Board of Veterans’ Appeals under section 7107 of this title;
instances in which an adjudicator of the Veterans Benefits Administration does not comply with a relevant decision of the Board of Veterans’ Appeals to remand a claim for benefits under the laws administered by the Secretary (or an issue within such a claim), including any such instance in which the relevant decision concerned a failure on the part of the agency of original jurisdiction to satisfy the duty of the Secretary to assist under section 5103A of this title;
supplemental claims under section 5108 of this title that are filed—
in accordance with section 5104C(a) and section 5110(a)(2) of this title; and
after the date of the applicable final decision of the Secretary with respect to a claim for benefits under the laws administered by the Secretary (or an issue within such a claim); and
first notices submitted to the Secretary of the death of individuals in receipt of benefits under the laws administered by the Secretary, disaggregated by such individuals who were—
assigned a fiduciary; and
not assigned a fiduciary.
(b) Annual report
The Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate an annual report that includes all information maintained and tracked pursuant to subsection (a).
The first report required by paragraph (1) shall be submitted by not later than one year after the date of the enactment of the Take Care of America’s Veterans Act .
(B) Clerical amendment
The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 5109B the following new item:
(4) Improvements to Board of Veterans’ Appeals
(A) Authority to aggregate certain claims
(i) In general
Section 7104(a) of such title is amended by inserting after the second sentence the following new sentence: If the Chairman of the Board determines that more than one appeal involves common questions of law or fact, the Chairman may aggregate such appeals to decide such questions of law or fact. .
(ii) Effective date
The amendment made by clause (i) shall take effect on the date of the enactment of this Act and apply beginning on the date 90 days after the date on which the Secretary of Veterans Affairs submits to the Committees on Veterans’ Affairs of the Senate and House of Representatives a copy of the policies and procedures required under paragraph (7)(D)(i)(II).
(iii) Sunset
The authority to aggregate appeals pursuant to clause (i) shall expire on the date that is three years after the date on which the Secretary of Veterans Affairs completes the development of the policies and procedures required under paragraph (7)(D)(i)(II).
(B) Requirement to ensure substantial compliance with certain decisions
Such section is further amended—
by redesignating subsection (f) as subsection (g); and
by inserting after subsection (e) the following new subsection (f):
The Secretary, acting through a member of the Board, shall ensure substantial compliance with any decision of the Board to remand a claim.
The agency of original adjudication may waive the requirement under paragraph (1) with respect to a decision of the Board to remand a claim to the Secretary, if a member of the Board determines—
evidence added to the evidentiary record after the date of such decision is sufficient to resolve the issues underlying such decision; or
such decision was unnecessary.
If the Secretary waives such requirement, the applicable member of the Board shall include, pursuant to subsection (d), a determination of such waiver in the decision of the Board.
(C) Definition of aggregate; report
Such section is further amended by adding at the end the following new subsections:
Not later than three years after the date on which the Secretary of Veterans Affairs completes the development of the policies and procedures required under paragraph (7)(D)(i)(II), and every five years thereafter, the Secretary shall submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives a report on the aggregation of claims by the Board under subsection (a). Each such report shall include—
an identification of each instance in which the Board aggregated appeals during the period covered by the report, including, for each such instance, the number of appeals that were aggregated;
an assessment of whether the aggregation of appeals has contributed to improved efficiency at the Board with issuing decisions on appeals; and
such other matters as the Secretary determines appropriate.
In this section, the term aggregate —
means any practice or procedure to collect common issues, claims, or appeals by multiple parties for the purposes of resolving such issues, claims, or appeals; and
includes the use of joinder, consolidation, intervention, class actions, and any other multiparty proceedings.
(5) Expansion of jurisdiction of Court of Appeals for Veterans Claims
Section 7252 of title 38, United States Code, is amended—
by redesignating subsections (b) and (c) as subsections (d) and (e), respectively; and
by inserting after subsection (a) the following new subsections:
In an appeal over which the Court has jurisdiction pursuant to section 7266 of this title, if the appellant files a request for class certification pursuant to the rules prescribed by the Court pursuant to section 7264 of this title, the Court shall have supplemental jurisdiction over any claim for benefits under the laws administered by the Secretary—
filed by a claimant who satisfies the definition of the class contained in such request (including a claimant who has filed a claim for benefits under such laws that are specified in such request); and
regarding which—
the agency of original jurisdiction has issued a nonfinal decision; and
the claimant has filed a notice of disagreement under section 5104C(a) or section 7105 of this title, including any case in which a claimant has filed a supplemental claim within one year of a Board decision under section 5110(a)(2)(D) and 5108 of this title following a notice of disagreement and decision of the Board.
A claimant may submit a request for administrative review of such a claim under section 5104C(a) of this title during the period beginning on the date on which the named claimant of the motion for class action review submits to the Court a motion for class action review and ending on the date that is 60 days after the later of the following dates:
The date on which the Court issues a final decision with respect to such claim.
The date on which the Court issues a final decision with respect to such motion for class action review.
In the case of a claimant whose claim is decided by the Board during the period when the Court is reviewing the motion for class action review the deadline for such claimant to file an appeal to the Court with respect to the decision of the Board shall be tolled if the Court denies the motion for class action review.
In the case of a claim for benefits under the laws administered by the Secretary, the Court may remand a matter to the Board of Veterans’ Appeals for the limited purpose of ordering the Board to address a question of law or fact if the Court determines the Board failed to—
address, in the relevant decision of the Board, an issue that—
the claimant or the representative of the claimant raised; or
was reasonably raised by the evidentiary record of the claim; or
provide adequate reasons or bases for the decision of the Board with respect to such question.
The Court shall issue Rules that provide for each of the following:
When and how a party to an appeal (either the appellant or the Secretary) may request that the Court issue a limited remand.
The period of time within which the Board is required to issue a decision on the relevant question identified in a limited remand.
Guidelines for when the Court may grant a request for a limited remand.
Guidelines for when the Court may decide sua sponte to issue a limited remand without a request from any party.
A requirement that the parties to an appeal for which a limited remand is issued provide notice to the Court when the Board issues its decision on the relevant question identified in the limited remand.
With respect to any matter remanded to the Board pursuant to paragraph (1), the Court shall—
retain jurisdiction over such matter; and
stay the proceedings of the Court on such matter until the date on which the Board issues the decision required by such remand.
(6) Study and report on common questions of law or fact before Board of Veterans’ Appeals
(A) Study
The Chairman of the Board of Veterans’ Appeals shall carry out a study to identify questions of law or fact the Board commonly considers when reviewing appeals pursuant to section 7104 of title 38, United States Code, for which precedential guidance would assist the Board in issuing final decisions on such appeals. The Chairman may use artificial intelligence and other technology in carrying out such study.
(B) Report
Not later than one year after the date of the enactment of this Act, the Chairman of the Board of Veterans Appeals shall submit to the Committees on Veterans Affairs of the House of Representatives and the Senate a report that includes the findings of the study required by subparagraph (A).
(7) Independent assessment of potential modifications to authority of Board of Veterans’ Appeals
(A) Agreement
Not later than 30 days after the date of the enactment of this Act, the Secretary of Veterans Affairs shall seek to enter into an agreement with an FFRDC under which the FFRDC shall conduct an assessment of the feasibility of modifying the authority of the Board of Veterans’ Appeals established under chapter 71 of title 38, United States Code, to permit the Board to issue precedential decisions with respect to questions of law or fact arising in matters before the Board.
(B) Report; briefings
If the Secretary fails to finalize an agreement with an FFRDC under subparagraph (A) before the date that is 180 days after the date on which the Secretary enters negotiations with respect to such agreement, the Secretary shall—
submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a report that includes—
not less frequently than once every 60 days after the date on which the Secretary failed to satisfy such requirement, provide to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a briefing on the progress of the Secretary toward finalizing such agreement.
(C) Assessment
An FFRDC that enters into an agreement under subparagraph (A) shall, in consultation with veterans service organizations, veterans’ and survivors’ advocate groups, relevant legal experts, and the Chair of the Administrative Conference of the United States (or the designee or designees of such Chair) submit to the Secretary a written assessment that includes the following:
The determination of the FFRDC of whether modifying the authority of the Board to permit the Board to issue precedential decisions with respect to questions of law or fact arising in matters before the Board is feasible.
An assessment of the authority of the Board of Veterans’ Appeals to aggregate, for review, more than one appeal under chapter 71 of such title that involves common questions of law or fact pursuant to section 7104 of such title, as amended by paragraph (4)(A).
(D) Report; implementation
(i) In general
Not later than 90 days after the Secretary receives the assessment under subparagraph (C), the Secretary shall—
(ii) Deadline
The Secretary shall complete the development of the policies and procedures required under clause (i)(II) and submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives a copy of such policies and procedures not later than six months after the date on which the Secretary begins developing such policies and procedures.
(E) Definitions
In this paragraph:
The term FFRDC means a federally funded research and development center.
The term veterans service organization means an organization recognized by the Secretary for the representation of veterans under section 5902 of title 38, United States Code.
(c) Improvements to system for adjudication of claims for benefits under laws administered by Secretary of Veterans Affairs
(1) Program for quality assurance in decisions of Board of Veterans’ Appeals; performance reviews
(A) In general
Section 7101 of title 38, United States Code, is amended by adding at the end the following new subsection:
The Chairman shall carry out a program to ensure quality in the decisions of the Board. Under such program, the Chairman shall—
develop policies and procedures for—
measuring quality in such decisions;
maintaining data and identifying trends with respect to—
ensuring any such decision of the Board to remand a claim for a benefit under a law administered by the Secretary is necessary under any applicable law or regulation;
with respect to a claim for such a benefit that is remanded to the Board by the Court of Appeals for Veterans Claims—
inform any employee of the Board responsible for drafting the decision of the Board with respect to such claim that such decision was remanded;
provide any such employee with a copy of the relevant order of the Court of Appeals for Veterans Claims (including a copy of any accompanying joint motion for remand); and
provide incentives to such employees to review such relevant orders and joint motions for remand; and
ensure, to the maximum extent practicable, that any error identified by the Board under such program is corrected before the date on which the Board issues the final decision associated with such error.
In developing policies and procedures to measure quality in decisions of the Board pursuant to clause (i) of subparagraph (A) of paragraph (1), the Chairman shall consider the data and trends maintained and identified pursuant to clause (ii) of such subparagraph.
The Chairman may use technology, including artificial intelligence, to maintain such data and identify such trends.
The Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate an annual report on the program required by this subsection that includes, with respect to the period covered by the report, an identification of—
elements, if any of the process of the Board for reviewing an appeal under this chapter that lead to errors in decisions of the Board; and
the most common reasons that a claim for a benefit under a law administered by the Secretary was remanded to such Board by the Court of Appeals for Veterans Claims.
(B) Deadline
The Secretary shall submit the first report required by paragraph (2) of such section (as added by subparagraph (A)) by not later than one year after the date of the enactment of this Act.
(2) Training program for certain employees of Board of Veterans’ Appeals; performance reviews
(A) Training program
(i) In general
Chapter 71 of such title (as amended by paragraph (1)) is further amended by inserting after section 7101A the following new section:
7101B. Training program for members of Board on timely and correct adjudication of appeals
(a) In general
The Secretary, in conjunction with the Chairman of the Board of Veterans’ Appeals, shall develop and carry out a program to provide Members of the Board training on timely and correct adjudication of appeals under this chapter.
(b) Required considerations
In carrying out the program required by subsection (a), the Secretary shall consider the following:
Feedback, if any, from members of the Board and covered employees with respect to such program.
Data on errors in decisions of the Board maintained pursuant to the program for quality assurance required by subsection (f) of section 7101 of this title.
Any decision of the Court of Appeals for Veterans Claims to remand a claim for benefits under the laws administered by the Secretary to the Board for further action, including a joint motion to remand such claim.
(c) Assessments of effectiveness
The Secretary, in conjunction with the Chairman of the Board of Veterans’ Appeals, shall develop a method to assess, on an annual basis, the effectiveness of the training program under this section. In developing such method, the Secretary shall consider best practices for assessing the effectiveness of training programs, including the Kirkpatrick evaluation model.
(d) Report
The Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate an annual report on the program required by subsection (a) that includes, with respect to the period covered by the report—
a statement of the topics of the training provided pursuant to this section, disaggregated by—
mandatory training; and
non-mandatory training; and
the results of the assessment of the effectiveness of such program required under subsection (c).
(e) Covered employee defined
In this section, the term covered employee means an employee of the Board who is—
not a member of the Board; and
responsible for drafting decisions of the Board.
(ii) Clerical amendment
The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 7101A the following new item:
(B) Performance reviews of members of the Board
Section 7101A of such title is amended—
in subparagraph (B) of subsection (c)(1) by striking not less often than once every three years and inserting not less often than annually ; and
by adding at the end the following new subsection:
With respect to any performance review of a covered employee, the Secretary may not consider the timeliness or quality of work of any Member of the Board.
In this subsection, the term covered employee has the meaning given such term in section 7101B of this title.
(3) Decisions of Board to remand
(A) Information relating to decisions to remand
Section 7104 of such title is amended in subsection (d)—
by redesignating paragraphs (1) through (3) as paragraphs (2) through (4), respectively; and
by inserting before paragraph (2) (as so redesignated), the following new paragraph:
with respect to a claim that the Board remands for further action, a statement of the specific reasons such claim was remanded, including any failure on the part of the Secretary to comply with—
the Secretary’s duty to assist under section 5103A of this title; and
the Secretary’s duty to notify under section 5103 of this title;
(B) Notice of remanded decision for certain employees
Such section is further amended in—
subsection (e)—
in subsection (g), as redesignated by section 3(d)(2)(A), by striking under subsection (e) and inserting under paragraph (1) of subsection (e) .
(4) Annual reports for Board of Veterans’ Appeals
(A) In general
Chapter 71 of title 38, United States Code, is amended by inserting after section 7114 the following new section:
7115. Annual report on Board of Veterans’ Appeals
The Chairman of the Board shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate an annual report that includes, for each decision of the Board to remand a claim for a benefit under a law administered by the Secretary to the Secretary for further adjudication during the period covered by the report, a statement of the reasons for such decision of the Board, disaggregated by decisions on—
claims with a rating decision dated on or after February 19, 2019; and
claims with a rating decision dated before such date.
(B) Deadlines
The Secretary shall submit the first reports required by subsections (a) and (b) of section 7115 of such title (as added by paragraph (1)) by not later than one year after the date of the enactment of this Act.
(C) Clerical amendment
The table of sections at the beginning of such chapter is amended by inserting after the item relating to section 7114 the following new item:
(5) Plan for improvements to quality in decisions of Board
(A) In general
Not later than six months after the date of the enactment of this Act, the Secretary of Veterans Affairs, in consultation with the Chairman of the Board of Veterans’ Appeals and the head of the Office of Administrative Review of the Veterans Benefits Administration, shall develop a plan to—
improve the quality of decisions of the Board to remand, pursuant to section 7104 of title 38, United States Code, claims for a benefit under a law administered by the Secretary to the Secretary for further action; and
mitigate the number of such decisions that are unnecessary under any applicable law or regulation.
(B) Report
The Secretary shall submit to the Committees on Veterans’ Affairs of the House of Representatives and the Senate a report on such plan by not later than six months after the date of the enactment of this Act.
(d) Notice of avoidable deferrals of claims for benefits under laws administered by the Secretary of Veterans Affairs; study and report on certain opinions of Department of Veterans Affairs Office of General Counsel
(1) Notice of avoidable deferrals
Not later than one year after the date of the enactment of this Act, the Secretary of Veterans Affairs shall develop policies, procedures, and technological capabilities to ensure that each employee of the Veterans Benefits Administration that commits an avoidable deferral with respect to a claim for benefits under the laws administered by the Secretary of Veterans Affairs in the National Work Queue is notified of any avoidable deferrals that such employee commits with respect to the same claim.
(2) Study and report on certain OGC opinions
(A) Study
Not later than one year after the date of the enactment of this Act, the Secretary of Veterans Affairs, in consultation with the Office of the General Counsel of the Department of Veterans Affairs and the Chairman of the Board of Veterans’ Appeals, shall complete a study to identify—
issues about which an opinion from the Office of the General Counsel of the Department would foster consistency in the decisions of the Secretary with respect to claims for benefits under the laws administered by the Secretary; and
issues raised in appeals of such decisions to the United States Court of Appeals for Veterans Claims before the date of the enactment of this Act about which the Office of the General Counsel has had inconsistent opinions in matters involving substantially similar questions of law or fact.
(B) Report
Not later than one year after the date of the enactment of this Act, the Secretary of Veterans Affairs shall submit to the Committees on Veterans’ Affairs of the Senate and House of Representatives a report that includes—
the findings of the study required by subparagraph (A);
a statement of which issues identified pursuant to such study about which the Office of the General Counsel of the Department intends to publish an opinion; and
a timeline for the publication of any such opinion.