Veterans Affairs: The Appeal Process for Veterans' Claims

Veterans Affairs:
The Appeal Process for Veterans’ Claims
Updated March 20, 2008
Douglas Reid Weimer
Legislative Attorney
American Law Division

Veterans Affairs:
The Appeal Process for Veterans’ Claims
Summary
Congress, through the United States Department of Veterans Affairs (VA),
provides a variety of benefits and services to veterans and to certain members of their
families. These benefits range from health care and related services to burial
benefits. The veteran’s basic eligibility for these programs and services is usually
determined by the local VA office. Veterans not satisfied with the VA’s decision(s)
may wish to have them reviewed and may appeal the decision(s). This report traces
the various steps involved in the appeal process — starting with the original
application for benefits and concluding with an appeal to the U.S. Supreme Court.
A flow chart outlining all of the steps in the appeal process is provided.
Following the filing of the initial appeal, the local VA office will either allow
or disallow the claim. If the veteran/claimant wishes to appeal, a written request for
appeal must be filed and various time deadlines and other requirements must be met
prior to the case being considered by the Board of Veterans’ Appeals (BVA). The
appeal before the BVA may be a hearing at the local VA office by a traveling Board
member; a hearing at the BVA office in Washington, DC; or a videoconference
hearing at the local VA office. Various filing requirements and time limits must be
met by the veteran/claimant in his/her appeal. There are specific guidelines for a
person representing a veteran before the BVA. Legislation enacted in the 109^th
Congress changed traditional guidelines to allow for legal representation for veterans
throughout the administrative appeals process.
The veteran/claimant may appeal the decision of the BVA to the Court of
Appeals for Veterans Claims (CAVC), which is an independent federal court and not
part of the VA. The decision of the CAVC may be appealed by either the
veteran/claimant or the VA to the U.S. Court of Appeals for the Federal Circuit
(Federal Circuit), an Article III court that sits in Washington, DC and has exclusive
jurisdiction to hear cases challenging CAVC rulings. Decisions of the Federal
Circuit may be appealed to the U.S. Supreme Court, which has final jurisdiction.
The VA has various statutory obligations to assist the veteran in the preparation
of his/her application for benefits and any subsequent appeal(s). Among these
obligations are assistance in the preparation of the initial application; provision of
various records; medical exams; and other related issues. Certain legal and factual
presumptions are established by statute that may be favorable to the veteran’s claim.
These issues are examined in the appendix to this report.
Legislation introduced in the 110^th Congress concerning the appeal process is
summarized in the appendix. These bills are H.R. 67, H.R. 653, H.R. 797, H.R.

1435, H.R. 1444, H.R. 1490, H.R. 1538, H.R. 2257, H.R. 2855, H.R. 3047, H.R.

5089, S. 1283, S. 1363, and S. 2737. H.R. 1318 is also discussed. One of the bills,

H.R. 797, has been enacted into law (P.L. 110-157).

Contents
In troduction ......................................................1
Veterans’ Benefits.............................................1
Appeals from the Local VA Office Decisions........................2
The Appeal Process................................................2
Flow Chart of the Various Steps in the Appeal Process................2
Filing the Original Claim for Benefits at the VA.....................4
The Appeal: The First Steps.....................................5
Time Limit...............................................5
The Notice of Disagreement (NOD)...........................5
Appeal to the Local VA Office...............................6
The Statement of the Case...................................6
VA Form 9 and the Substantive Appeal........................6
Supplemental Statement of Case..............................6
Time Limitation...........................................7
Withdrawal of Issue(s)......................................7
Issues Related to the Appeal Process...............................7
Filing Extensions..........................................7
Representation for the Appeal................................7
Attorney Representation: Recent Legislation....................8
Information for the Appeal..................................9
Location of the VA Form 9..................................9
The Board of Veterans’ Appeals (BVA)................................9
Organization ..................................................9
The BVA’s Docket.............................................9
The BVA Docket and Docket Number.........................9
Waiting Time............................................10
Personal Hearings................................................10
Request for a BVA Hearing.....................................11
Scheduling the BVA Hearing...................................11
The Ninety Day Rule..........................................11
The Appeal at the BVA........................................12
Notification of the Board’s Decision..............................12
The Remand.................................................12
Additional Appeal Options.....................................13
Notice of Appeal.........................................13
Motion for Reconsideration.................................13
Reopening the Case.......................................14
CUE Motion.............................................14
Death of the Appellant Before a Decision Issued....................14
Subsequent Judicial Appeals....................................15

Appendix. Duties and Obligations of the VA to the Claimant/Appellant......16
The Obligations of the VA to the Claimant/Appellant................16
Application and Notice of Incomplete Application...............16
Required Information and Evidence; and Time Limitation.........16
Duty to Assist Claimants: Records...........................16
Decisions and Notices of Decisions...........................18
VA’s Obligation to Assist in the Development of Claims..........18
Reopening Disallowed Claims...............................19
Revision of Decisions on Grounds of Clear and
Unmistakable Error...................................19
Benefit of the Doubt Standard...............................19
Certain Presumptions......................................20
Legislation Introduced in the 110^th Congress............................20
H.R. 67.....................................................20
H.R. 653 ...................................................21
H.R. 797....................................................21
H.R. 1435...................................................21
H.R. 1444...................................................22
H.R. 1490...................................................22
H.R. 1538...................................................23
H.R. 2257...................................................23
H.R. 2855...................................................23
H.R. 3047...................................................24
H.R. 5089...................................................25
S. 1283.....................................................25
S. 1363.....................................................25
S. 2737.....................................................26
List of Figures
Figure 1. Appeal Process...........................................3

Veterans Affairs:
The Appeal Process for Veterans’ Claims
Introduction
Veterans’ Benefits
Congress, through the United States Department of Veterans Affairs (VA),
provides a broad variety of benefits and services to veterans and certain members of
their families.¹ Among the benefits that the VA extends to veterans are various types
of health care and related services, such as nursing homes, clinics, and medical
centers; various types of financial benefits, including disability compensation and
pensions; education, vocational training, and related career assistance; home
financing; life insurance; burial benefits; and benefits for certain family survivors.²
The veteran’s basic eligibility for these various services and programs is usually
determined by the local VA office.³ Various criteria must be met in order for the
veteran to be eligible for VA benefits and the local VA office scrutinizes the
veteran’s claim before determining eligibility.⁴

¹ See generally Federal Benefits for Veterans and Dependents, published by the Department
of Veterans Affairs (2008 edition), available online at [http://www1.va.gov/opa/vadocs/
fedben.pdf]. See CRS Report RL33113, Veterans Affairs: Basic Eligibility for Disability
Programs, by Douglas Reid Weimer. This report deals with the fundamental requirements
for disability benefit programs. See CRS Report RL33323, Veterans Affairs: Benefits for
Service-Connected Disabilities, by Douglas Reid Weimer. This report discusses various
aspects of disability compensation, a monthly cash benefit program for veterans currently
impaired from past service-connected activities.
² See CRS Report RL33323.
³ The local VA office is defined by the VA as “any local office of the Department of
Veterans Affairs where claims for VA benefits are received and determined.” This is
usually a VA Regional Office or an administrative office at a VA medical center. The legal
term for such an office is the “agency of original jurisdiction.” A VA Regional Office is one
of 58 VA regional offices located throughout the United States and its territories, and it is
at these offices where most claims for VA benefits are filed and determined. Thus, all
Regional Offices are considered to be “local offices,” but the concept of “local office” may
also include administrative offices located at VA medical centers. Therefore, all Regional
Offices are “local offices,” but not all “local offices” are Regional Offices. See Board of
Veterans’ Appeals, Understanding the Appeal Process, published by the Department of
Veterans Affairs; VA Pamphlet 01-00-1 (January 2000) at 38-39 (cited to afterward as
“Understanding”). See [http://www.va.gov/vbs/bva/y2000.pdf] for the publication online.
Go to the website and click on “Understanding the Appeal Process.”
⁴ See CRS Report RL33323.

Appeals from the Local VA Office Decisions
Veterans not satisfied with the decisions made by the local VA office on their
claims or benefits may wish to have the decisions reviewed on appeal.⁵ The VA has
stated that the two most common types of appeals are 1) the denial of benefits for a
disability that the veteran believes is service-connected; and 2) the veteran believes
that his/her disability is more severe than the VA has rated it.⁶ The first issue
involves disability compensation, which is a monthly cash benefit for veterans
currently impaired from past service-connected activities.⁷ The second issue involves
the VA’s rating of the severity of the veteran’s disability — which is directly related
to the amount of monthly disability compensation (a cash payment) the veteran
receives.⁸ While these two issues seem to be the most prevalent types of appeals,
nearly any decision made by the local VA office concerning veterans’ benefits may
be appealed.⁹
An appeal of the local VA office’s decision may be made to 1) the local VA
office (which made the original decision) and/or 2) the Board of Veterans’ Appeals
(BVA), which is discussed below. The findings of the BVA may be appealed to the
U.S. Court of Veterans Claims. Subsequent appeals may be made to the U.S. Court
of Appeals for the Federal Circuit and ultimately to the U.S. Supreme Court.
The Appeal Process
Flow Chart of the Various Steps in the Appeal Process
The appeal process consists of several steps. The following flow chart provides
a simplified outline of the steps that must be taken by the veteran in his/her appeal.
Each step is discussed in detail in the text following the chart.

⁵ How Do I Appeal?, published by the Board of Veterans Appeals, Department of Veterans
Affairs; VA Pamphlet 1-02-02A (April 2002) at 1 (cited to afterward as “How Do I
Appeal?”). See [http://www.va.gov/vbs/bva/pamphlet.htm]. Go to the website and click
on “How Do I Appeal?” for an online copy of the pamphlet.
⁶ Id.
⁷ See CRS Report RL33323.
⁸ Id. at 7-10. For instance, the local VA office may determine that the veteran is 10%
disabled, while the veteran believes that he/she is 40% disabled.
⁹ See How Do I Appeal? at 1. For example, a veteran may appeal a denial of education
benefits made by the local VA office.

Figure 1. Appeal Process

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Filing the Original Claim for Benefits at the VA
In order to apply for VA benefits, the veteran must file a claim at the local VA
office or VA medical facility.¹⁰ A claim for benefits may also be filed on-line.¹¹ The
claim must specifically state the requested benefit(s).¹² Assistance to the veteran
during the application process may be provided by representatives from Veterans
Service Organizations (VSOs)¹³ and/or by other persons or agents.¹⁴ The VSOs have
staff located at most local VA offices.
In addition to assistance that may be provided by the VSOs or other agents, the
VA is obligated by statute and regulation to provide certain assistance to the claimant
during the original claim procedure and during any subsequent appeal(s). Such
assistance many involve locating and producing records and providing medical
examinations. Certain presumptions relating to medical conditions are also mandated
by statute. These obligations and presumptions are summarized in the Appendix to
this report.¹⁵
Following receipt of the veteran’s claim for benefits, the local VA office will
review the claim and make a decision about the claim(s).¹⁶ The local VA office will
either allow or deny the claim.¹⁷ Where relevant, the local VA office may also rate

¹⁰ The local VA office is defined by the VA as “any local office of the Department of
Veterans Affairs where claims for VA benefits are received and determined.” This is
usually a VA Regional Office or an administrative office at a VA medical center. The legal
term for such an office is the “agency of original jurisdiction.” A VA Regional Office is one
of 58 VA regional offices located throughout the United States and its territories, and it is
at these offices where most claims for VA benefits are filed and determined. Thus, all
Regional Offices are considered to be “local offices,” but the concept of “local office” may
also include administrative offices located at VA medical centers. Therefore, all Regional
Offices are “local offices,” but not all “local offices” are Regional Offices. See Board of
Veterans’ Appeals, Understanding the Appeal Process, published by the Department of
Veterans Affairs; VA Pamphlet 01-00-1 (January 2000) at 38-39 (cited to afterward as
“Understanding”). See [http://www.va.gov/vbs/bva/pamphlet.htm] for the publication
online. Go to the website and click on “Understanding the Appeal Process.”
¹¹ See How Do I Appeal at 3. File the claim at [http://www.vba.va.gov]. Go to the website,
then go to “Apply Online” and click on “Compensation and Pension.” This is the Veterans
ON-line APPlication (VONAPP) website.
¹² Such benefits might relate to medical care, disability compensation, or educational
benefits.
¹³ Such organizations are the American Legion, the Disabled American Veterans, and other
veterans’ groups.
¹⁴ See How Do I Appeal? at 3.
¹⁵ See discussion at Appendix.
¹⁶ See CRS Report RL33323.
¹⁷ Id.

(on a percentage basis) the veteran’s degree of service-connected disability.¹⁸ The
local VA office’s determination will be mailed to the veteran.¹⁹ If the veteran is not
satisfied with the local VA office decision, the veteran may appeal.
The Appeal: The First Steps
An appeal²⁰ is a request for a review of a local VA determination²¹ on a claim
for benefits.²² Anyone who has filed a claim for benefits with the VA and has
received a determination from a local VA office is eligible to appeal a complete or
a partial denial of a claim.²³ The veteran may also appeal the level of benefit
gr a n t e d .²⁴
Time Limit. The veteran seeking a review of the local VA office decision
(called “the appellant”) has one year from the date on which the local VA office
mails the appellant its initial determination of the claim to appeal. After one year,
the local VA office determination is considered final and cannot be appealed unless
there is proof of clear and unmistakable error on the part of the VA.²⁵
The Notice of Disagreement (NOD).²⁶ There is no special form needed to
initiate the appeal process. The appellant need only submit a written statement
disagreeing with the local VA office’s claim determination and stating the veteran’s
wish to appeal the claim determination. This statement is called the Notice of
Disagreement (NOD).²⁷

¹⁸ Id. at 7-10.
¹⁹ See How Do I Appeal? at 3.
²⁰ See 38 C.F.R. § 20.200. What Constitutes An Appeal. “An appeal consists of a timely
filed Notice of Disagreement in writing and, after a Statement of the Case has been
furnished, a timely filed Substantive Appeal.”
²¹ See Understanding at 6. Most local determinations are made by the local VA office.
However, some determinations made by VA medical facilities, such as eligibility for
medical treatment, may also be appealed.
²² 38 U.S.C. § 511(a) outlines the authority of the Secretary of the VA to make decisions
regarding benefits for veterans.
²³ Again, see Understanding at 6. Most local determinations are made by the local VA
office. However, some determinations made by VA medical facilities, such as eligibility for
medical treatment, may also be appealed.
²⁴ For example, a veteran may be determined to be 20% disabled and the veteran may
believe that he/she is 40% disabled and appeal.
²⁵ See Understanding at 6-7.
²⁶ See 38 C.F.R. § 20.201.
²⁷ See Understanding at 39.

Appeal to the Local VA Office. The NOD is filed with the same local VA
office that made the decision being appealed,²⁸ as this is the location of the²⁹
appellant’s claims file or claims folder, unless the appellant has moved. After the
NOD is filed, the appellant may request that his/her claims file be reviewed by a
Decision Review Officer (DRO) from the local VA office. The DROs provide a
second review of the entire file and may also hold a personal hearing on the claim.³⁰
The Statement of the Case. At this point, the local VA office will either
allow or not allow the claim. If the claim is disallowed, the local VA office will
prepare and send to the appellant a Statement of Case (SOC) and a blank VA Form
9 to be used for continuation of the appeal. The SOC summarizes the submitted
evidence and the relevant laws and regulations and provides the local VA office’s
reasons for making its determination and disallowing the claim.³¹
VA Form 9 and the Substantive Appeal.³² To continue an appeal, the
appellant must fill out and return the VA Form 9 — the Substantive Appeal — to the
local VA office. Form 9 is available on-line.³³ The appellant must state the
requested benefit, any mistakes in the SOC, and indicate whether a personal hearing
is requested.³⁴ The Form 9 becomes part of the claims folder and is the basis for
adding the appeal to the Board of Veterans Appeals docket. Specific provisions exist
for the withdrawal of the appeal.³⁵
Supplemental Statement of Case.³⁶ If the appellant submits new evidence
or information, the local VA office will prepare a Supplemental Statement of Case
(SSOC). The SSOC is similar to the SOC and includes the newly submitted
information.³⁷ The appellant has 60 days from the date the SSOC was mailed to
submit, in writing, any matter in dispute on the SSOC.

²⁸ 38 C.F.R. § 20.300.
²⁹ For the purpose of this report, the appellant’s records will be referred to as “claims file.”
³⁰ See How Do I Appeal? at 4.
³¹ See Understanding at 8-9.
³² 38 C.F.R. § 20.202.
³³ See [http://www.vba.va.gov]. Go to the website, then go to “Board of Veterans’
Appeals,” then go to “VA Forms,” then type in VA9.
³⁴ A personal hearing must be requested. Without such a request, the BVA will review the
claims file and the VA Form 9 and make a decision without meeting or speaking with the
appellant and his/her representative.
³⁵ 38 C.F.R. § 20.204.
³⁶ 38 C.F.R. § 20.302(b), (c).
³⁷ See Understanding at 40-41.

Time Limitation.³⁸ The local VA office must receive the VA Form 9 within

60 days from the date that the VA mailed the SOC (or SSOC) or within one year of³⁹

the date that the original decision denying the claim, whichever date is later.
Withdrawal of Issue(s). If the appellant does not wish the Board of Veterans
Appeals to examine an issue that is contained in the SOC or the SSOC, the appellant
may state on Form 9 that the appellant is withdrawing the issue(s) on the appeal.⁴⁰
Issues Related to the Appeal Process
Filing Extensions.⁴¹ An appellant may request an extension of the 60-day
filing period for filing a Substantive Appeal or the 60-day period to respond to a⁴²
Supplemental Statement of the Case. The appellant makes this request in writing
to the local VA office handling the appeal. The appellant needs to explain to the VA
local office why extra time is needed to file.
Representation for the Appeal.⁴³ The appellant may represent him/herself
at the appeal. However, the VA has reported that about 90 percent of appeals heard
before the Board of Veterans Appeals (BVA) have some representation.⁴⁴
There are three different categories of representatives that the appellant may
engage. The first includes representatives of the VSO or from the state or local
veterans’ office. Usually, the representatives from the VSOs and the government
veterans’ offices do not charge for their services.⁴⁵ Second, the VA recognizes
certain “agents” who are able to represent appellants and who are certified by the
VA.⁴⁶ Third, the appellant may engage a lawyer for representation.⁴⁷
The appellant must complete a VA Form 21-22 to authorize representation by
a VSO or a related entity on the appeal.⁴⁸ The appellant must complete a VA Form

³⁸ 38 C.F.R. § 20.302.
³⁹ Id. See How Do I Appeal? at 6.
⁴⁰ See Understanding at 10.
⁴¹ 38 C.F.R. § 20.303.
⁴² 38 U.S.C § 5105(d)(3); 38 C.F.R. § 20.303.
⁴³ See in general, 38 C.F.R. § 20.600. Legislation pending in the 110^th Congress, discussed
below, may change the representation available to appellants.
⁴⁴ See Understanding at 12.
⁴⁵ See Understanding at 12.
⁴⁶ 38 U.S.C. § 5904; 38 C.F.R. § 20.604.
⁴⁷ 38 C.F.R. § 20.603.
⁴⁸ 38 C.F.R. § 20.602.

22a to authorize representation by a lawyer⁴⁹ or a recognized agent for his/her
appeal.⁵⁰ An appellant is limited to one representative recognized by the BVA.⁵¹
Attorney Representation: Recent Legislation. The Veterans Benefits,
Health Care, and Information Technology Act of 2006,⁵² enacted in the 109^th
Congress, modified attorney participation in the appeal process. The act also requires
the Secretary of the VA to provide additional qualifications and standards for agents
and attorneys who represent veterans before the VA, including standards that deal
with (1) training and character and (2) fee criteria and limitations. The Secretary is
authorized to charge and collect fees from the agents or attorneys to be used for
administrative expenses for veterans’ benefits programs. The following grounds for
suspension of agents or attorneys are provided in the act: presenting frivolous
claims, prior suspensions, charging excessive or unreasonable fees, or failure to
comply with the Secretary’s regulations.
The legislation significantly broadens opportunities for legal representation
during administrative appeals. Previously, an attorney could not represent a veteran
for a fee until the BVA made a final decision.⁵³ This had the effect of excluding an
attorney from the process until all of the administrative appeals had been exhausted.
The act now permits an attorney to enter the appeal process at a much earlier date —
after the veteran has received a decision on his or her claim from the VA and decides
to appeal this initial decision administratively through the filing of a NOD.⁵⁴ An
attorney may now provide representation for a fee after the NOD is filed. The act
requires the Secretary to provide Congress with an evaluation of the effect of the new
system of representation. The Secretary is also authorized to review fee agreements,
and the Secretary may order a reduction in an agreed upon fee if the Secretary finds
the fee excessive or unreasonable. The Secretary’s decision may be reviewed by the
BVA, which is authorized to make the final review of the issue.⁵⁵
Broadening attorney participation in the veterans’ appeal process has been
somewhat controversial. Opposition has focused on attorneys’ fees and the possibility
of additional delays in the appeal process. On March 5, 2007, Representative Ron
Lewis introduced H.R. 1318,⁵⁶ which, if enacted, would repeal the authority for
certain agent or attorney representation in veterans’ benefit cases before the VA. In
effect, the bill would return to the process that existed prior to the enactment of the
2006 law and would permit representation only after the BVA renders a final
decision in the case. The bill has been referred to the House Committee on Veterans’

⁴⁹ 38 C.F.R. § 20.603.
⁵⁰ 38 C.F.R. § 20.604.
⁵¹ See Understanding at 12.
⁵² P.L. 109-461, Title I.
⁵³ See Figure I. Appeal Process at 3.
⁵⁴ Id.
⁵⁵ 38 U.S.C. § 7104.
⁵⁶ 110^th Cong., 1^st Sess. (2007).

Affairs and referred to the Subcommittee on Disability Assistance and Memorial
Affairs.
Information for the Appeal. Should new evidence or medical proof
supporting the appellant’s claim arise during the appeal process, the evidence should
be submitted to the VA. If the appellant’s claims file is at the local VA office and
the new evidence is sent there, the VA local office will send the appellant an SSOC
if it does not allow the claim after reviewing the new evidence. The new evidence⁵⁷
will be added to the claims file and considered during the appeal process.
Location of the VA Form 9. After the Form 9 is filed, it becomes part of the
claims file and serves as the basis for the appeal to the BVA. The Form 9, as part of
the claims file, will be sent by the local VA office to the BVA and will be reviewed
later by the BVA when the BVA considers the appeal and reviews the entire claims
file.
The Board of Veterans’ Appeals (BVA)
Or gani z a ti on⁵⁸
Known as the “Gateway to VA Appeals,”⁵⁹ the Board of Veterans’ Appeals
(BVA) is a part of the VA based in Washington, DC.⁶⁰ The BVA reviews benefit
claims appeals and issues decisions on those appeals. The BVA is composed of
“Members of the Board” who are attorneys experienced in veterans’ law, appointed
by the Secretary of Veterans Affairs and approved by the President of the United
States. Staff attorneys, who are designated as Counsel or Associate Counsel, assist⁶¹
Members of the Board in preparing decisions. The function that they provide is
similar to a law clerk who assists a judge in his/her legal capacities.⁶²
The BVA’s Docket
The BVA Docket and Docket Number. The local VA office will forward
the appellant’s claims file to the BVA’s docket. The law requires that the BVA⁶³
decide cases on a “first come, first served” basis. Each appellant’s case is added to

⁵⁷ See Understanding at 13-14.
⁵⁸ For a general overview of the BVA, see the website at [http://www.va.gov/vbs/bva].
⁵⁹ See note 57.
⁶⁰ 38 U.S.C. § 7101(a); 38 U.S.C. § 7104.
⁶¹ See Understanding at 6.
⁶² Id.
⁶³ 38 U.S.C. § 7107(a); 38 C.F.R. § 20.900.

the docket when the VA receives the substantive appeal — VA Form 9 — and the
claims file from the local VA.⁶⁴
On occasion, the BVA may, on a motion by the appellant, advance the order of
a claim on its docket.⁶⁵ The appellant must demonstrate compelling need,
exceptional circumstances, or proof of hardship.⁶⁶ The BVA seldom grants a request
for “advancement on the docket,” as the BVA feels that most appeals involve some
form of hardship and the BVA wishes to treat all appellants fairly.⁶⁷
Waiting Time. Once a case/claim has been entered on the BVA’s docket, it
is uncertain how long it may take for the BVA to reach a decision on the case. The
VA has stated, that as of the fall of 1999, it took an average of two years from the⁶⁸
time a NOD was filed, until a final decision was issued. However, 2005
congressional testimony by the Undersecretary for Benefits of the VA appears to⁶⁹
indicate that the decision time has been substantially reduced.
Personal Hearings
There are two types of personal hearings: a local VA office hearing⁷⁰ and a BVA
hearing.
As previously discussed,⁷¹ a local office hearing is held at the local VA office
between the appellant and a hearing officer from the local VA office staff. Such a
hearing is arranged between the appellant and the local VA office. The local VA
office may find in favor of the appellant. The appellant may subsequently appeal the
local office hearing through the BVA.
The appellant may present his/her case in person to a member of the BVA.
There are three types of BVA hearings: a hearing by a Board member at a the local

⁶⁴ See Understanding at 15. Each case is assigned a docket number when it is added to the
list of cases. The first two numbers are the year in which the case was filed and the
remaining numbers indicate the order in which the case was added to that year’s list/docket.^th
For example, 05-00111, would indicate the 111 claim filed in 2005.
⁶⁵ 38 U.S.C. § 7107(a)92); 38 C.F.R. § 20.900.
⁶⁶ For example, terminal illness, bankruptcy, pending eviction, and other hardships.
⁶⁷ See Understanding at 16.
⁶⁸ Id.
⁶⁹ Testimony of Daniel L. Cooper, Undersecretary of Benefits, Department of Veterans
Affairs before the Senate Veterans Affairs Committee (May 26, 2005). See
[ h t t p : / / www.va .gov/ OCA/ t e st i mony/ s vac/ 05052620.asp] .
⁷⁰ This is sometimes called a Regional Office hearing, an RO hearing, or a hearing officer
hearing.
⁷¹ See “Appeal to the Local VA Office” on page 6.

VA office (Regional Office), called a Travel Board hearing;⁷² a hearing at the BVA
office in Washington, DC; or a videoconference hearing at the local VA office, if it
is equipped for videoconferencing. The VA does not provide travel expenses to the
appellant.⁷³
Request for a BVA Hearing
The typical way to request a BVA hearing is for the appellant to indicate on VA
Form 9 the type of hearing that the appellant wishes. The appellant may also write
to the BVA to request a hearing, indicating whether a hearing is requested at the local
level or in Washington, DC.
Scheduling the BVA Hearing
The schedule of the hearing depends upon the type of hearing requested. The
BVA has reported that the Travel Board hearings are usually held as soon as they can
be scheduled on the hearing officer’s calendar,⁷⁴ but that they may be difficult to
arrange because of the schedules of the BVA Board members and the accumulation
of a sufficient number of appeals to warrant a scheduled visit from a BVA member.⁷⁵
Videoconferenced hearings are less complicated to arrange and can be scheduled
more quickly than Travel Board hearings, according to the BVA.⁷⁶
Hearings that are held at the BVA offices in Washington DC are usually
scheduled close to the time when the BVA will consider the case. In 2000, the BVA
reported that the BVA will schedule a case about three months before the case is⁷⁷
reviewed.
The Ninety Day Rule
The local VA office will notify the appellant by letter when it transfers the
claims file to the BVA in Washington, DC. The letter will inform the claimant that
the claimant has ninety days from the date of the letter or until the BVA decides the
case, whichever comes first, to add additional evidence to the file, request a hearing
(if none was selected), and/or select or change representation.⁷⁸
In order for the BVA to accept any of these materials after the expiration of the
ninety day period, the appellant must submit a motion — a written request — asking
the BVA to accept the item, even though it is late. The motion needs to include an

⁷² See note 3.
⁷³ See Understanding at 18.
⁷⁴ Id. at 19.
⁷⁵ Id.
⁷⁶ Id.
⁷⁷ Id.
⁷⁸ 38 C.F.R. § 20.1304.

explanation of why the item is late and demonstrate why the BVA should accept the
item into the claims file.
The Appeal at the BVA
The local VA office will forward the appellant’s file to the BVA. The appellant
will be notified in writing when the file is officially transferred and received by the
BVA.⁷⁹ The decision time in the appeal process varies from case to case. After the
file is received by the BVA, the appellant’s case will then be assigned to a Board
member for review. When the docket number for the appeal has been reached, the
file will be examined by a Board member and a staff attorney. They will check the
file for completeness, review all of the evidence and arguments, the transcript of the
local VA hearing, the statement of the appellant’s representative (if the appellant has
a representative), and any additional information that may be with the claims file.⁸⁰
The Board member may request the staff attorney to undertake additional research
on the case and prepare recommendations for the review of the Board member. If the
appellant requested a BVA hearing, the Board member assigned to the case will
conduct the hearing before reaching a decision.
Before reaching a decision, the Board member will examine all of the material
in the appellant’s file, along with the recommendations prepared by the staff attorney.
The Board member will then issue a decision on the appeal.⁸¹
Notification of the Board’s Decision
The BVA will issue its decision in writing. The decision may contain legal
documents and legal discussions as well as medical discussions. The decision will⁸²
be mailed to the appellant’s home address.
The decision will allow, deny, or remand the claim. If the claim is allowed or
denied, the BVA’s decision is final. A remand is not a final decision and allows⁸³
further work on the claim.
If the appeal is denied, the BVA will send a copy of the “Notice of Appellate
Rights” that describes additional actions that the appellant may choose to pursue.
The Remand
At times the BVA may review an appeal and determine that the case is not ready
for a final decision. The BVA will send the case back to the local VA office with

⁷⁹ See Understanding at 21. Appellants may check the status of their file after its transfer
to by BVA by telephone at 202-565-5436.
⁸⁰ Id. at 22.
⁸¹ Id. at 23.
⁸² Id.
⁸³ See How Do I Appeal at 11.

directions as to what should be done. The action of returning the case to the local
VA office for additional work is called a remand. It is sometimes described as
“additional development.”⁸⁴
After the case has been returned to the local VA office, it will perform the
additional work on the file. The local VA office will review the case and issue a new
determination. If the local VA office does not allow the claim, it will return the case
to the BVA for a final decision. The case keeps its original place on the BVA’s
docket, so it is usually reviewed relatively soon after it is returned to the BVA.⁸⁵
Certain cases are remanded because of new rulings by the U.S. Court of Appeals
for Veterans Claims or changes in the law. The local VA office will then review
them within the context of the new legislation or the court ruling.⁸⁶
Additional Appeal Options
Should the appellant wish to appeal the BVA’s decision, the appellant may
appeal to the United States Court of Appeals for Veterans Claims (CAVC), an
independent court and not part of the VA.⁸⁷ An appellant may also wish to pursue
further motions with the BVA.
Notice of Appeal. Usually, the appellant must file the Notice of Appeal with
the CAVC within 120 days from the date the BVA’s decision is mailed. (The mailing
date is stamped on the front of the BVA’s decision.)
If the appellant filed a motion to reconsider with the BVA within the 120-day
time period and that motion was denied, the appellant has a new 120-day period to⁸⁸
file the Notice of Appeal with the CAVC. The new 120-day period begins on the
date the BVA mails the appellant a letter notifying the appellant that it has denied the
motion to reconsider.
Motion for Reconsideration. If the appellant is able to demonstrate that the
BVA made an obvious error of fact or of law in its decision, the appellant may file⁸⁹
a written “motion to reconsider” of the appeal. The appellant may have the VSO
representative advise him/her whether to file the motion and the VSO representative
may also provide assistance in its preparation. The motion to reconsider is sent
directly to the BVA and not to the local VA office.

⁸⁴ See Understanding at 24.
⁸⁵ Id.
⁸⁶ Id.
⁸⁷ See the CAVC’s website: [http://www.vetapp.uscourts.gov/].
⁸⁸ See Understanding at 25-26 for the appropriate addresses to file the Notice of Appeal and
a copy of the Notice of Appeal.
⁸⁹ 38 U.S.C. § 7103; 38 C.F.R. § 20.1000; 38 C.F.R. § 20.1001.

The appellant will need to demonstrate that the BVA made a mistake in law or
in fact and that the BVA’s decision would have been different if the mistake had not
been made.⁹⁰
Reopening the Case. If the appellant has “new and material” evidence
relating to his/her claim, the appellant can request that the case be reopened.⁹¹ In
order to be considered “new and material,” the evidence submitted needs to include
information related to the case that was not included in the claims folder when the
Board reviewed and decided the case.
To reopen a case, the appellant must submit the new evidence directly to the
local VA office and not to the BVA.⁹²
CUE Motion. A BVA decision may be reversed or revised if the appellant is
able to show that the decision contained “clear and unmistakable error” (CUE).⁹³
The written request for the BVA to review its decision for CUE is called a motion.
CUE motions are filed directly with the BVA and not with the local VA office.
The motion for CUE review must meet various requirements and if the motion
is denied, the appellant cannot request another CUE review. The VA has reported
that not many CUE motions are successful. In order to succeed, the conclusion must
be reached that the BVA would have decided the case differently, but for the error.
A difference in opinion is not sufficient.⁹⁴
The appellant may file a motion to review a BVA decision for CUE at any time.
However, if the motion for CUE is filed after filing a timely Notice of Appeal with
the CAVC (120 days),⁹⁵ the BVA will not be able to rule on the CUE motion.⁹⁶
Death of the Appellant Before a Decision Issued
The death of the appellant usually ends the appeal.⁹⁷ If the appellant dies, the
BVA normally dismisses the appeal without issuing a decision. Any rights of a
deceased appellant’s survivors are not affected by this action. The survivors may file
a claim at the VA regional office (RO) for any benefits to which they may be
entitled.⁹⁸

⁹⁰ See Understanding at 27.
⁹¹ 38 U.S.C. § 5108; 38 U.S.C. § 7104(b); 38 C.F.R. § 3.156; 38 C.F.R. § 20.1105.
⁹² See Understanding at 27.
⁹³ 38 U.S.C. § 7111; 38 C.F.R. § 20, subpart O.
⁹⁴ Id.
⁹⁵ See “Nature of Appeal” at 11.
⁹⁶ See Understanding at 28.
⁹⁷ 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1302.
⁹⁸ See Understanding at 29.

Subsequent Judicial Appeals
The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
exclusive jurisdiction to hear cases involving challenges to VA decisions in an appeal
of a CAVC decision and in a direct challenge to VA regulation and VA policies of
general applicability.⁹⁹ A decision of the CAVC may be appealed to the Federal
Circuit by the persons who appealed to the CAVC or by the VA. An appeal to the
Federal Circuit must be filed within 60 days of the final CAVC decision. After the
Federal Circuit issues a final decision, either the claimant or the VA may petition the
U.S. Supreme Court for certiorari (to hear the case) within ninety days of the Federal
Circuit’s final action.¹⁰⁰ The Supreme Court is the court of last resort and the
Supreme Court’s decision is final.

⁹⁹ 38 U.S.C. § 7292. See CRS Report RS22561, Veterans Affairs: The U.S. Court of
Appeals for Veterans Claims — Judicial Review of VA Decision Making, by Douglas Reid
Weimer.
¹⁰⁰ 38 U.S.C. § 7292(c).

Appendix. Duties and Obligations of the VA
to the Claimant/Appellant
The Obligations of the VA to the Claimant/Appellant¹⁰¹
The VA¹⁰² has various legal obligations to a claimant/appellant relating to the
completeness of the application for benefits (or a subsequent appeal), the provision
of medical and service records, and other issues related to the application/appeals
process.
Application and Notice of Incomplete Application. The VA is required
to provide to any person claiming or applying for any benefit, the “instructions and
forms necessary to apply for that benefit.”¹⁰³ These materials are to be provided “free
of all expense” to the claimant.¹⁰⁴
If the claimant’s application for a VA benefit is incomplete, the VA is required
to notify the claimant of the information that is necessary to complete the
application.¹⁰⁵
Required Information and Evidence; and Time Limitation.¹⁰⁶ After the
VA receives a complete or a nearly complete application for benefits, the VA is
required to notify the claimant of any information or medical or lay evidence that is¹⁰⁷
needed to substantiate the claim. As part of this notification requirement, the VA
is required to indicate which information and evidence is to be provided by the
claimant and which information the VA will attempt to obtain on the claimant’s
behalf to substantiate and complete the claim.
The claimant is required to submit the above-mentioned evidence to substantiate
the claim within one year of the date of the VA’s notification. If no further evidence
is obtained, no benefits will be paid or furnished on this claim.¹⁰⁸
Duty to Assist Claimants: Records. The VA is required to make
“reasonable efforts” to assist a claimant in obtaining evidence necessary to

¹⁰¹ See CRS Report RL33323.
¹⁰² The statutory language provides that “the Secretary” is required to provide various
assistance to the claimant. For the purposes of this summary and for consistency, the term
“VA” is used instead.
¹⁰³ 38 U.S.C. § 5102(a); 38 C.F.R. § 3.150(a).
¹⁰⁴ 38 U.S.C. § 5102(a).
¹⁰⁵ 38 U.S.C. § 5102(b); 38 C.F.R. § 3.159(b)(2).
¹⁰⁶ These provisions are not applicable for any application or claim for government
insurance benefits. 38 U.S.C. § 5103(b)(2).
¹⁰⁷ 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b).
¹⁰⁸ 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1),

substantiate the claim for benefits.¹⁰⁹ However, certain exceptions exist to this
requirement. The VA is not required to provide assistance to the claimant if “no
reasonable possibility” exists that such assistance would aid in substantiating the
claim.¹¹⁰ The VA may defer providing assistance pending the claimant’s submission
of essential information that is missing from the claimant’s application.¹¹¹
Assistance in Obtaining Records. The VA is required to make
“reasonable efforts” to obtain relevant records (including private records) that the¹¹²
claimant adequately identifies to the VA and authorizes the VA to obtain. Federal
regulations outline the procedures for obtaining records not in the custody of a¹¹³
federal department or agency and obtaining records in the custody of a federal
department or agency.¹¹⁴ If after making reasonable efforts, the VA is unable to
locate the records, the VA will notify the claimant that the VA is unable to obtain the
records pursuant to this claim.¹¹⁵ The notification is required to identify the records
being sought, explain the efforts made to obtain the records, and describe any further
action to be taken by the VA regarding this claim.¹¹⁶ It is required that the VA’s
efforts to obtain records from the federal department or agency will continue until the
records are obtained, unless it is reasonably certain that such records do not exist or¹¹⁷
that further efforts to obtain the records would be futile.
Records for Compensation Claims. If the case involves a claim for
disability compensation, additional assistance in obtaining records is required to be¹¹⁸
provided. Assistance is to be provided in locating the claimant’s service medical
records and other relevant records relating to the claimant’s active military, naval, or¹¹⁹
air service that are held or maintained by a governmental entity; records of relevant
medical treatment or examination at VA health-care facilities;¹²⁰ and any other
relevant records held by any federal department or agency that the claimant identifies
and authorizes the VA to obtain.¹²¹

¹⁰⁹ 38 U.S.C. § 5103A(a)(1); 38 C.F.R. § 3.159(c)(1).
¹¹⁰ 38 U.S.C. § 5103A(a)(2); 38 C.F.R. § 3.160(d).
¹¹¹ 38 U.S.C. § 5103A(a)(3).
¹¹² 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.160©).
¹¹³ 38 C.F.R. § 3.159A(c)(1).
¹¹⁴ 38 C.F.R. § 3.159A(c)(2).
¹¹⁵ 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.160(e).
¹¹⁶ Id.
¹¹⁷ 38 U.S.C. § 5103A(b)(3).
¹¹⁸ 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(3).
¹¹⁹ 38 U.S.C. § 5103A(c)(1).
¹²⁰ 38 U.S.C. § 5103A(c)(2).
¹²¹ 38 U.S.C. § 5103A(c)(3).

Medical Examinations for Compensation Claims. If the case involves
a claim for disability compensation, the VA is required to provide a medical
examination or obtain a medical opinion when such an examination or opinion is
necessary to make a decision on the claim.¹²² The VA is required to treat an
examination or opinion as being necessary to make a decision on a claim if the
evidence on the record, taking in consideration all information and lay or medical
evidence 1) contains competent evidence that the claimant has a current disability or
persistent or recurrent symptoms of disability¹²³ or 2) indicates that the disability or
symptoms may be associated with the claimant’s active military, naval, or air
service;¹²⁴ but does not contain sufficient medical evidence for the VA to make a¹²⁵
decision on the claim.
Disallowed Claims. The statute specifically provides that the VA is not
required to reopen a claim that has been disallowed except when new and material¹²⁶
evidence is presented or secured.
Other Assistance not Precluded. The statute is not to be construed as
precluding the VA from providing such other assistance to a claimant in
substantiating a claim as the VA considers appropriate.¹²⁷
Decisions and Notices of Decisions. When the VA makes a decision
affecting the provision of benefits to a claimant, the VA is required, on a timely
basis, to provide the claimant (and the claimant’s representative) notice of the¹²⁸
decision. The notice must include an explanation of the procedure for obtaining
a review of the decision.¹²⁹ If the VA denies a benefit, the notice is required to
include a statement of the reason for the decision and a summary of the evidence
considered by the VA.¹³⁰
VA’s Obligation to Assist in the Development of Claims. Federal
regulations require the VA to assist the claimant “in developing the facts pertinent
to the claim” and to render a decision that grants every benefit that can be supported¹³¹
in law while protecting the interests of the government. Therefore, the VA has the

¹²² 38 U.S.C. § 5103A(c)(4); 38 C.F.R. § 3.159(c)(4).
¹²³ 38 U.S.C. § 5103A(d)(2)(A).
¹²⁴ 38 U.S.C. § 5103A(d)(2)(B).
¹²⁵ 38 U.S.C. § 5103A(d)(2)(C).
¹²⁶ 38 U.S.C. § 5103A(f).
¹²⁷ 38 U.S.C. § 5103A(g).
¹²⁸ 38 U.S.C. § 5104(a); 38 C.F.R. § 3.103(b).
¹²⁹ Id.
¹³⁰ 38 U.S.C. § 5104(b).
¹³¹ 38 C.F.R. § 3.103(a).

duty to consider all legal theories upon which the claim could be granted,¹³²
regardless of whether the claimant argues or focuses on every possible legal theory.
Reopening Disallowed Claims. If any new or material evidence is
presented or secured relating to a claim that has been disallowed, the VA is required
to reopen the claim and review the former disposition of the claim.¹³³
Revision of Decisions on Grounds of Clear and Unmistakable Error.
A VA decision is subject to revision on the grounds of clear and unmistakable error,
as previously discussed.¹³⁴ If there is evidence to establish the error, the prior
decision is reversed or revised.¹³⁵ For the purposes of authorizing benefits, a rating,
or other adjudicative decision that constitutes a reversal or revision of a prior
decision on the grounds of clear and unmistakable error, has the effect as if the
decision had been made on the date of the prior decision.¹³⁶ A review to determine
whether a clear and unmistakable error exists in a case may be initiated by the VA
or upon the request of the claimant.¹³⁷ A request for a revision of a VA decision
based on clear and unmistakable error may be made at any time after the decision is
made.¹³⁸ Such a request for a revision shall be submitted to the VA and shall be
decided in the same manner as any other claim.¹³⁹
Benefit of the Doubt Standard. The VA is required to consider all
information and the legal and medical evidence of record in a case before the VA
with respect to benefits under the laws administered by the VA.¹⁴⁰ When there is an
approximate balance of positive and negative evidence regarding any issue material
to the determination, the VA “shall give the benefit of the doubt to the claimant.”¹⁴¹
Regulations provide that when reasonable doubt arises, such doubt will be resolved
in favor of the claimant.¹⁴² For instance, in order to satisfy this element, the
submitted medical evidence generally needs to show that it is as likely as not that
there is a connection between the in-service injury, occurrence, or illness and the
current disability. Thus, the VA can deny the claim only if the preponderance of the
evidence is against the claim.

¹³² The VA would be required to consider all possible legal theories (e.g., secondary service
connection, presumptive service connection, etc.) upon which the claim could be granted.
¹³³ 38 U.S.C. § 5108.
¹³⁴ 38 U.S.C. § 5109A(a). See discussion at 12.
¹³⁵ Id.
¹³⁶ 38 U.S.C. § 5109A(b).
¹³⁷ 38 U.S.C. § 5109A(c).
¹³⁸ 38 U.S.C. § 5109A(d).
¹³⁹ 38 U.S.C. § 5109A(e).
¹⁴⁰ 38 U.S.C. § 5107(b).
¹⁴¹ Id. See 38 C.F.R. § 3.102.
¹⁴² 38 C.F.R. § 3.102.

Certain Presumptions. In its analysis of certain claims, the VA is required
by statute and/or regulation to make certain presumptions.
Presumption of Medical Soundness. In evaluating a veteran’s claim, the
VA generally presumes that the veteran entered the service in sound medical
condition.¹⁴³ This may assist the veteran in proving a claim by making it difficult for
the VA to claim that the condition or disease existed prior to service. However, if
the medical impairment was noted at the time of entry into service, the veteran may
have to prove that the condition was exacerbated in-service. If the VA is able to
prove by “clear and unmistakable evidence” that the disease or injury was in
existence prior to service, and that it was not worsened during service, the veteran’s
claim will be denied.
Special Rules for Certain In-Service Occurrences. Special rules exist
under which the VA is required to consider a service-connected problem by
presumption. For example, certain diseases associated with exposure to Agent
Orange will be presumed to be service-related in the case of Vietnam veterans.¹⁴⁴
A similar regulation holds that veterans who were held prisoners of war, or who
served in combat, can be presumed to have suffered traumatic, stressful events during
their military service.¹⁴⁵ Similarly, combat veterans have special rules applicable to
them in proving an in-service injury or other incident.¹⁴⁶ Usually, if a combat veteran
states that he/she suffered a disease, injury, or other event during the combat, the VA
will usually accept that statement as fact. This is the case even if there are no service
records to substantiate the claim.
Legislation Introduced in the 110^th Congress
Legislation has been introduced in the 110^th Congress, which, if enacted, may
affect the appeal process. The summary below covers the following bills: H.R. 67,
H.R. 653, H.R. 797, H.R. 1435, H.R. 1444, H.R. 1490, H.R. 1538, H.R. 2257, H.R.

2855, H.R. 3047, H.R. 5089, S. 1283, S. 1363, and S. 2737.

H.R. 67
H.R. 67 (sponsored by Representative Mike McIntyre),¹⁴⁷ the proposed Veterans
Outreach Improvement Act of 2007, would establish procedures for coordinating
activities of the VA and various related entities, including the Veterans Health

¹⁴³ 38 U.S.C. § 1111.
¹⁴⁴ 38 C.F.R. § 3.307(a)(6)(iii).
¹⁴⁵ 38 C.F.R. § 3.304(f).
¹⁴⁶ 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d),(f).
¹⁴⁷ H.R. 67, 110^th Cong., 1^st Sess. (2007). The bill was introduced on January 4, 2007,
passed the House on May 23, 2007, and was referred to the Senate Committee on Veterans’
Affairs on May 24, 2007.

Administration, the Veterans Benefits Administration, and the National Cemetery
Administration. The Secretary would be required to review these procedures
annually.
The bill would provide assistance to the states to help carry out veterans benefits
and related programs. The Secretary could provide assistance to county veteran
service programs, enter into agreements and arrangements with state veterans
agencies, and make grants to state veterans agencies to assist in outreach activities
and the submittal of benefits claims.
Outreach activities would be funded through a separate appropriation account.
A sum of $25 million would be authorized for each fiscal year from 2007-2009.
The bill defines “outreach” within the context of the legislation as taking steps
in a way to provide “information, services and benefits counseling to veterans” and
their survivors who may be eligible for such benefits.¹⁴⁸
H.R. 653
H.R. 653 (sponsored by Representative Thomas M. Reynolds)¹⁴⁹ would have the
Secretary of Veterans Affairs accept that an injury or disease is service-connected (if
there is no clear and convincing proof to the contrary), based upon the sworn
affidavit of a veteran who served in combat on or before July 27, 1953 (prior to or
during the Korean War).
H.R. 797
H.R. 797 (sponsored by Representative Tammy Baldwin), which was enacted
into law,¹⁵⁰ expands disability compensation for veterans who are visually impaired
in both eyes by a standard definition of blindness used by other federal agencies.
H.R. 1435
H.R. 1435, the proposed Department of Veterans Affairs Claims Backlog¹⁵¹
Reduction Act of 2007 (sponsored by Representative Joe Baca), if enacted, would
direct the Secretary to conduct a pilot program to reduce the backlog of pending
benefits claims.

¹⁴⁸ Id. If enacted, to be codified at 38 U.S.C. § 564.
¹⁴⁹ H.R. 653, 110^th Cong., 1^st Sess. (2007). The bill was introduced on January 24, 2007, and
was referred to the House Subcommittee on Disability Assistance and Memorial Affairs on
March 2, 2007.
¹⁵⁰ H.R. 797, 110^th Cong., 1^st Sess. (2007), introduced on February 5, 2007; enacted as P.L.

110-157, 110^th Cong., 1^st Sess. (December 12, 2007).

¹⁵¹ H.R. 1435, 110^th Cong., 1st Sess. (2007). The bill was introduced on March 9, 2007, and
referred to the House Committee on Veterans’ Affairs on that date. The House
Subcommittee on Disability Assistance and Memorial Affairs held hearings on April 17,

2007.

The bill would make various findings on claims backlogs and the quality of
County Veterans Service Officers (CVSOs). The bill would establish a three-year
pilot program to reduce the backlog of veterans’ claims in the following states:
California, Florida, Ohio, South Carolina, and Texas.¹⁵² Claims identified as
requiring further development would be referred to a CVSO, based upon the
Officer’s geographical proximity to the claimant. The bill outlines the procedures for
the development of the claim by the CVSO and the claimant.¹⁵³ Under the program,
the CVSO would serve as the claimant’s advocate in developing and transmitting the
claim. The CVSO could also cooperate with a veterans service organization to
develop the claim. During the development of the claim, the CVSO would have
access to client information, including information held by the VA.
Following the completion of the pilot program, the Secretary would report to
Congress regarding backlog reduction, statistics, and other related information.
H.R. 1444
H.R. 1444 (sponsored by Representative John J. Hall),¹⁵⁴ if enacted, would
direct the Secretary to make interim payments in cases remanded (referred back) to
the VA by the BVA or the CAVC if the VA fails to decide the matter within 180 days
of remand. If the Secretary does not make a decision within 180 days of the remand,
then until the matter is finally decided, the Secretary would be required to pay an
interim benefit of $500 per month. When a claim is finally decided, and if benefits
are awarded, the interim payments would be considered advance benefit payments.
If the final decision is not to award benefits, the interim benefits would not be
considered an overpayment.
Under the bill, the Secretary would also be required to submit to Congress a
report on measures that the Secretary intends to expedite the process of remanded
claims for veterans benefits.
H.R. 1490
If enacted, H.R. 1490 (sponsored by Representative Joe Donnelly)¹⁵⁵ would
provide for a presumption of service-connectedness in certain claims for benefits,
upon the claimant proving service in a conflict and the nature of the claim, unless the
Secretary determines that there is positive evidence to the contrary. The bill would

¹⁵² Id. § 4.
¹⁵³ Id. § 4(d).
¹⁵⁴ H.R. 1444, 110^th Cong., 1^st Sess. (2007). The bill was introduced on March 9, 2007, and
referred to the House Committee on Veterans’ Affairs on that date. The House
Subcommittee on Disability Assistance and Memorial Affairs held hearings on April 17,

2007.

¹⁵⁵ H.R. 1490, 110^th Cong., 1^st Sess. (2007). The bill was introduced on March 13, 2007, and
referred to the House Committee on Veterans’ Affairs on that date. The House
Subcommittee on Disability Assistance and Memorial Affairs held hearings on April 17,

2007.

require the Secretary to award benefits, at a “median level” as determined by the
Secretary, immediately upon processing the claim until such time as the appropriate
level of benefits is determined.¹⁵⁶
The bill would also provide for the redeployment of VA claims workers freed
up by the presumption of service-connectedness to assist veterans with their
claims.¹⁵⁷ Such staff would be redeployed to veterans centers or other locations that
the Secretary determines are appropriate.
H.R. 1538
H.R. 1538 (sponsored by Representative Ike Skelton)¹⁵⁸ deals primarily with
improving the management of medical care, personnel actions, and quality of life
issues for members of the Armed Forces. However, certain provisions could impact
the appeal process. The bill addresses disability evaluations, a study by DOD and the
VA concerning their individual evaluation systems, and the possibility of combining
the two systems. The bill would also streamline record keeping and the transfer of
records from DOD to the VA. Some of the bill’s provisions are similar to those of
S. 1283, discussed below.
H.R. 2257
H.R. 2257 (sponsored by Representative Peter Welch)¹⁵⁹ would require the
Secretary of the VA to increase the number of benefits claims representatives. The
bill would require that no fewer than two claims representative be located at each¹⁶⁰
“vet center.”
H.R. 2855
In addition to providing new types of assistance, H.R. 2855 (sponsored by¹⁶¹
Representative Ciro D. Rodriguez), the proposed Wounded Heroes Bill of Rights
Act, would establish a Wounded Heroes Independent Review Board (“Board”) to

¹⁵⁶ Id. § 1.
¹⁵⁷ Id. § 2.
¹⁵⁸ H.R. 1538, 110^th Cong., 1^st Sess. (2007). The bill was introduced on March 15, 2007,
passed the House on March 28, 2007, and passed the Senate with an amendment by
Unanimous Consent on July 25, 2007. A message on Senate action was sent to the House
on July 26, 2007. On September 5, 2007, the Senate ordered the measure printed as passed.
¹⁵⁹ H.R. 2257, 110^th Cong., 1^st Sess. (2007). The bill was introduced on May 9, 2007, and
was referred to the House Subcommittee on Disability Assistance and Memorial Affairs on
May 11, 2007.
¹⁶⁰ These “centers” provide readjustment counseling and related mental health services to
veterans (38 U.S.C. § 1712A(i)(1)).
¹⁶¹ H.R. 2855, 110^th Cong., 1^st Sess (2007). The bill was introduced on June 25, 2007, and
referred to the House Subcommittee on Military Personnel, House Subcommittee on Health,
and House Ways and Means on that date.

review certain cases involving a member of the Armed Forces or a veteran who was
severely injured on or after September 11, 2001, while on active duty.¹⁶²
Upon the request of a “Wounded Hero,” the Board would expeditiously review
the decision or determination of the VA or other federal department or agency
relating to the eligibility for or the scope of benefits, including health care or
vocational rehabilitation benefits. Following a review, the Board would render a
written advisory opinion relating to such eligibility or provision of such care or
benefits.
An advisory opinion rendered by the Board would be “considered as evidence”
by the BVA and the CAVC in any case with respect to the “Wounded Hero” before
the BVA or the CAVC, upon the submission of the opinion by the “Wounded
Hero.”¹⁶³ An advisory opinion rendered by the Board could not be reviewed by any
other official or by any court, whether by an action in the nature of mandamus or
otherwise. ¹⁶⁴
H.R. 3047
H.R. 3047 (sponsored by Representative Doug Lamborn),¹⁶⁵ the proposed
Veterans Claims Processing Innovation Act of 2007, would provide changes to
improve the processing of claims for benefits administered by the VA.
Among the changes proposed by the bill is the implementation of a work credit
system for the BVA.¹⁶⁶ Under this system, a regional office of the BVA would
receive work credit for a claim assigned to the regional office when the appellate
period for the claim has expired or the BVA has issued a final decision with respect
to the claim.¹⁶⁷
The bill would also implement the electronic processing of claims for benefits
administered by the Secretary of Veterans Affairs (Secretary).¹⁶⁸ The Secretary
would be required to develop and maintain a system for processing claims for
disability compensation using artificial intelligence. The system would use medical

¹⁶² H.R. 2855, § 311.
¹⁶³ Id. § 315(c).
¹⁶⁴ Id. § 315(d).
¹⁶⁵ H.R. 3047, 110^th Cong., 1^st Sess (2007). The bill was introduced on July 16, 2007, and
referred to the House Committee on Veterans’ Affairs. On July 23, 2007, it was referred
to the House Subcommittee on Disability Assistance and Memorial Affairs. Subcommittee
hearings were held on November 8, 2007.
¹⁶⁶ H.R. 3047, § 2
¹⁶⁷ Id. § 2(b). Presumably, this system could monitor and evaluate the workload and
productivity of the regional offices of the BVA.
¹⁶⁸ Id. § 3.

and military service data to generate recommendations with respect to disability
ratings .¹⁶⁹
Section 4 of the bill would provide for the treatment of the beneficiary of a
deceased veteran’s accrued benefits as the claimant for the purpose of incomplete
claims at the time of the death of the veteran.¹⁷⁰ Thus, if a veteran claimant dies
before completing the submission of a claim for any benefit administered by the
Secretary, the person who would have received any accrued benefits due to the
veteran would be treated as the claimant for the purpose of completing the
submission of the claim.¹⁷¹
Section 5 of the bill would require an evaluation by a private contractor of
training and performance assessment programs for VA employees.¹⁷²
H.R. 5089
H.R. 5089, (sponsored by Representative John Barrow),¹⁷³ would propose to
reform the veterans’ disability determination process by requiring the Secretary of
Veterans Affairs to pay disability compensation to certain veterans based on the
concurring diagnosis of two physicians.
S. 1283
S. 1283, (sponsored by Senator Mark Pryor)¹⁷⁴ deals primarily with improving
the management of medical care, personnel actions, and quality of life issues for
members of the Armed Forces. However, certain provisions could impact the appeal
process. Among these issues are evaluation of the disability evaluation system, a
study by DOD and the VA concerning their individual evaluation systems, and the
possibility of combining the two systems. Some of the bill’s provisions are similar
to those of H.R. 1538, discussed above.
S. 1363
S. 1363 (sponsored by Senator Hillary Rodham Clinton),¹⁷⁵ the proposed
Bridging the Gap for Wounded Warriors Act, would improve health care for severely

¹⁶⁹ Id. § 3(a).
¹⁷⁰ Id. § 4.
¹⁷¹ Id. § 4(a).
¹⁷² Id. § 5(a).
¹⁷³ H.R. 5089, 110^th Cong., 2d Sess (2008). The bill was introduced on January 22, 2008,
and was referred to the House Committee on Veterans’ Affairs on that same date.
¹⁷⁴ S. 1283, 100^th Cong., 1^st Sess (2007). The bill was introduced on May 3, 2007, and was
referred to the Senate Committee on Armed Services on that date.
¹⁷⁵ S. 1363, 110^th Cong., 1^st Sess. The bill was introduced on May 10, 2007, and referred to
the Senate Committee on Armed Services on that date.

injured members and former members of the armed forces. The bill would create a
Department of Defense-Department of Veterans Affairs Office of Transition
(“Office”).¹⁷⁶ Among the functions of this office would be to “develop uniform
standards, to be applicable across the military departments and to the Department of
Veterans Affairs, for the rating of disabilities incurred or aggravated by members of
the Armed Forces during service in the Armed Forces.”¹⁷⁷ The bill would also
provide for the reform of the disability ratings systems of the Department of Defense
and the Department of Veterans Affairs.¹⁷⁸
S. 2737
S. 2737 (sponsored by Senator Daniel K. Akaka),¹⁷⁹ the proposed “Veterans’
Rating Schedule Review Act” would amend title 38 of the United States Code to
grant jurisdiction to the U.S. Court of Appeals for Veterans Claims to review
compliance of ratings for disabilities under the schedule of 38 U.S.C. § 1151 with
the statutory requirements applicable to entitlement to disability compensation.

¹⁷⁶ S. 1363, § 3.
¹⁷⁷ Id. § 3(c)(5).
¹⁷⁸ Id. § 4.
¹⁷⁹ S. 2737, 110^th Cong., 2d Sess. (2008). The bill was introduced on March 10, 2008, and
was referred to the Senate Committee on Veterans’ Affairs on that date.