Title 38 — Veterans’ Benefits
Part IV · Chapter 51 — Claims, Effective Dates, and Payments
§ 5110. Effective dates of awards
Statutory text
Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.
For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession:
A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision.
A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision.
A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision.
Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.
The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran’s discharge or release if application therefor is received within one year from such date of discharge or release.
The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.
For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation.
This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.
The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.
The effective date of an award of disability pension to a veteran described in subparagraph (B) of this paragraph shall be the date of application or the date on which the veteran became permanently and totally disabled, if the veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the veteran.
A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.
The effective date of an award of disability compensation by reason of section 1151 of this title shall be the date such injury or aggravation was suffered if an application therefor is received within one year from such date.
The effective date of an award of death compensation, dependency and indemnity compensation, or death pension for which application is received within one year from the date of death shall be the first day of the month in which the death occurred.
Except as provided in paragraph (2) of this subsection, the effective date of an award of dependency and indemnity compensation to a child shall be the first day of the month in which the child’s entitlement arose if application therefor is received within one year from such date.
In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 1311(b) of this title in determining the amount of the dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.
An award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if proof of dependents is received within one year from the date of notification of such rating action.
Subject to the provisions of section 5101 of this title, where compensation, dependency and indemnity compensation, or pension is awarded or increased pursuant to any Act or administrative issue, the effective date of such award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or administrative issue. In no event shall such award or increase be retroactive for more than one year from the date of application therefor or the date of administrative determination of entitlement, whichever is earlier.
Where an award of pension has been deferred or pension has been awarded at a rate based on anticipated income for a year and the claimant later establishes that income for that year was at a rate warranting entitlement or increased entitlement, the effective date of such entitlement or increase shall be fixed in accordance with the facts found if satisfactory evidence is received before the expiration of the next calendar year.
Whenever any disallowed claim is readjudicated and thereafter allowed on the basis of new and relevant evidence resulting from the correction of the military records of the proper service department under section 1552 of title 10, or the change, correction, or modification of a discharge or dismissal under section 1553 of title 10, or from other corrective action by competent authority, the effective date of commencement of the benefits so awarded shall be the date on which an application was filed for correction of the military record or for the change, modification, or correction of a discharge or dismissal, as the case may be, or the date such disallowed claim was filed, whichever date is the later, but in no event shall such award of benefits be retroactive for more than one year from the date of readjudication of such disallowed claim. This subsection shall not apply to any application or claim for Government life insurance benefits.
Where a report or a finding of death of any person in the active military, naval, air, or space service has been made by the Secretary concerned, the effective date of an award of death compensation, dependency and indemnity compensation, or death pension, as applicable, shall be the first day of the month fixed by that Secretary as the month of death in such report or finding, if application therefor is received within one year from the date such report or finding has been made; however, such benefits shall not be payable to any person for any period for which such person has received, or was entitled to receive, an allowance, allotment, or service pay of the deceased.
The effective date of the award of benefits to a surviving spouse or of an award or increase of benefits based on recognition of a child, upon annulment of a marriage shall be the date the judicial decree of annulment becomes final if a claim therefor is filed within one year from the date the judicial decree of annulment becomes final; in all other cases the effective date shall be the date the claim is filed.
The effective date of an award of benefits to a surviving spouse based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.
[(m)
Repealed. Pub. L. 103–446, title XII, § 1201(i)(8), , 108 Stat. 4688.]
The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of the marriage, birth, or adoption.
Legislative history
Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.
Pub. L. 85–857 · 72 Stat. 1105
Enacted · 38 U.S.C. § 5110
Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1226, § 3010
Source evidence
Code source credit
Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1226, § 3010Pub. L. 87–825 § 1 · 76 Stat. 948
Inserted · 38 U.S.C. § 5110(a)
Pub. L. 87–825 inserted “based on an original claim, a claim reopened after final adjudication, or a claim for increase”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 87–825 inserted “based on an original claim, a claim reopened after final adjudication, or a claim for increase”.Pub. L. 87–825 § 1 · 76 Stat. 948
Redesignated · 38 U.S.C. § 5110(c)
Pub. L. 87–825 added subsec. (c). Former subsec. (c) redesignated (d)
Source evidence
Code amendment note
Subsec. (c). Pub. L. 87–825 added subsec. (c). Former subsec. (c) redesignated (d).Pub. L. 87–825 § 1 · 76 Stat. 948
Redesignated · 38 U.S.C. § 5110(d)
Pub. L. 87–825 redesignated former subsec. (c) as (d)
Redesignated · 38 U.S.C. § 5110(d)
Pub. L. 87–825 substituted first day of month in which the death occurred, for the day after the day of death, as the effective date. Former subsec. (d) redesignated (e)
Source evidence
Code amendment note
Subsec. (d). Pub. L. 87–825 redesignated former subsec. (c) as (d) and substituted first day of month in which the death occurred, for the day after the day of death, as the effective date. Former subsec. (d) redesignated (e).Pub. L. 87–825 § 1 · 76 Stat. 948
Redesignated · 38 U.S.C. § 5110(e)
Pub. L. 87–825 redesignated former subsec. (d) as (e)
Substituted · 38 U.S.C. § 5110(e)
Pub. L. 87–825 substituted “first day of the month” for “date”
Redesignated · 38 U.S.C. § 5110(e)
Pub. L. 87–825 struck out “the entitlement arose” after “from such date.” Former subsec. (e) redesignated (j)
Source evidence
Code amendment note
Subsec. (e). Pub. L. 87–825 redesignated former subsec. (d) as (e), substituted “first day of the month” for “date”, and struck out “the entitlement arose” after “from such date.” Former subsec. (e) redesignated (j).Pub. L. 87–825 § 1 · 76 Stat. 948
Redesignated · 38 U.S.C. § 5110(f)
Pub. L. 87–825 added subsec. (f). A prior subsec. (f) added by Pub. L. 87–674 was redesignated (k) by Pub. L. 87–825
Source evidence
Code amendment note
Subsec. (f). Pub. L. 87–825 added subsec. (f). A prior subsec. (f) added by Pub. L. 87–674 was redesignated (k) by Pub. L. 87–825.Pub. L. 87–825 § 1 · 76 Stat. 948
Added · 38 U.S.C. § 5110(g)(i)
Pub. L. 87–825 added subsecs. (g) to (i)
Source evidence
Code amendment note
Subsecs. (g) to (i). Pub. L. 87–825 added subsecs. (g) to (i).Pub. L. 87–825 § 1 · 76 Stat. 948
Redesignated · 38 U.S.C. § 5110(j)
Pub. L. 87–825 redesignated former subsec. (e) as (j)
Substituted · 38 U.S.C. § 5110(j)
Pub. L. 87–825 substituted “first day of the month” for “day after the date”
Substituted · 38 U.S.C. § 5110(j)
Pub. L. 87–825 substituted “month of death” for “date of death”
Source evidence
Code amendment note
Subsec. (j). Pub. L. 87–825 redesignated former subsec. (e) as (j), and substituted “first day of the month” for “day after the date”, and “month of death” for “date of death”.Pub. L. 87–825 § 1 · 76 Stat. 948
Redesignated · 38 U.S.C. § 5110(k)
Pub. L. 87–825 redesignated former subsec. (f)
Added · 38 U.S.C. § 5110(k)
Pub. L. 87–825 added by Pub. L. 87–674, as (k)
Source evidence
Code amendment note
Subsec. (k). Pub. L. 87–825 redesignated former subsec. (f), added by Pub. L. 87–674, as (k).Pub. L. 91–376 § 7 · 84 Stat. 787
Added · 38 U.S.C. § 5110(l); 38 U.S.C. § 5110(m)
Pub. L. 91–376 added subsecs. (l) and (m)
Source evidence
Code amendment note
Subsecs. (l), (m). Pub. L. 91–376 added subsecs. (l) and (m).Enacted provision · exact public law section
Sec. 7. Section 3010 of title 38, United States Code, is amended by adding at the end thereof the following new subsections: “(l) The effective date of an award of benefits to a widow based upon termination of a remarriage by death or divorce shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination. “(m) The effective date of an award of benefits to a widow based upon termination of actions described in subsection 103(d)(3) of this Supra. title shall not be earlier than the date of receipt of application therefor filed after termination of such actions and after December 31, 1970.”Pub. L. 91–584 § 13 · 84 Stat. 1575
Added · 38 U.S.C. § 5110(n)
Pub. L. 91–584 added subsec. (n)
Source evidence
Code amendment note
Subsec. (n). Pub. L. 91–584 added subsec. (n).Enacted provision · exact public law section
Sec. 13. Section 3010 of title 38, United States Code, is amended by adding at the end thereof a new subsection as follows: “(n) The effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Veterans’ Administration within one year from the date of the marriage, birth, or adoption.”Pub. L. 93–177 § 6(a) · 87 Stat. 694
Amended · 38 U.S.C. § 5110(b)
Pub. L. 93–177 designated existing provisions as par. (1)
Added · 38 U.S.C. § 5110(b)
Pub. L. 93–177 added par. (2)
Source evidence
Code amendment note
Subsec. (b). Pub. L. 93–177 designated existing provisions as par. (1) and added par. (2).Enacted provision · exact public law section
(a) Subsection (b) of section 3010 of title 38, United States Code, is amended by inserting “(1)” immediately after “(b)”, and by adding at the end of said subsection the following new paragraph: “(2) The effective date of an award of disability pension to a veteran shall be the date of application or the date on which the veteran became permanently and totally disabled, if an application therefor is received within one year from such date, whichever is to the advantage of the veteran.”.Veterans and Survivors Pension Adjustment Act of 1974
Pub. L. 93–527 § 9(b) · 88 Stat. 1702
Inserted · 38 U.S.C. § 5110(l)
Pub. L. 93–527 inserted provisions relating to an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce
Source evidence
Code amendment note
Subsec. (l). Pub. L. 93–527 inserted provisions relating to an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce.Enacted provision · exact public law section
(b) Subsection (1) of section 3010 of title 38, United States Code, is amended to read as follows: Awards, effective date. “(l) The effective date of an award of benefits to a widow based upon a termination of a remarriage by death or divorce, or of an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce, shall be the date of death or the date the judicial decree or divorce becomes final, if an application therefor is received within one year from such termination.”.Veterans Disability Compensation and Survivor Benefits Act of 1975
Pub. L. 94–71 title I § 104 · 89 Stat. 395
Added · 38 U.S.C. § 5110(b)(2); 38 U.S.C. § 5110(b)(3)
Pub. L. 94–71 added par. (2)
Redesignated · 38 U.S.C. § 5110(b)(2); 38 U.S.C. § 5110(b)(3)
Pub. L. 94–71 redesignated former par. (2) as (3)
Source evidence
Code amendment note
Subsec. (b)(2), (3). Pub. L. 94–71 added par. (2) and redesignated former par. (2) as (3).Enacted provision · exact public law section
Sec. 104. Section 3010 of title 38, United States Code, is amended— (1) by redesignating paragraph (2) of subsection (b) as paragraph (3);and (2) by inserting immediately after paragraph (1) thereof the following new paragraph: “(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.”.Veterans’ Disability Compensation, Housing, and Memorial Benefits Amendments of 1981
Pub. L. 97–66 title II § 204(b) · 95 Stat. 1026
Amended · 38 U.S.C. § 5110(e)
Pub. L. 97–66 designated existing provisions as par. (1)
Substituted · 38 U.S.C. § 5110(e)
Pub. L. 97–66 substituted “Except as provided in paragraph (2) of this subsection, the” for “The”
Added · 38 U.S.C. § 5110(e)
Pub. L. 97–66 added par. (2)
Source evidence
Code amendment note
Subsec. (e). Pub. L. 97–66 designated existing provisions as par. (1), substituted “Except as provided in paragraph (2) of this subsection, the” for “The”, and added par. (2).Enacted provision · exact public law section
(b) Section 3010(e) is amended— 38 USC 3010. (1) by striking out “The” and inserting in lieu thereof “(1) Except as provided in paragraph (2) of this subsection, the”; and (2) by adding at the end the following new paragraph: “(2) In the case of a child who is eighteen years of age or over and who immediately before becoming eighteen years of age was counted under section 411(b) of this title in determining the amount of the Ante, p. 1028. dependency and indemnity compensation of a surviving spouse, the effective date of an award of dependency and indemnity compensation to such child shall be the date the child attains the age of eighteen years if application therefor is received within one year from such date.”.Veterans’ Health Care Amendments of 1983
Pub. L. 98–160 title VII § 703(1) · 97 Stat. 993
Substituted · 38 U.S.C. § 5110(k)(m)
Pub. L. 98–160 substituted “surviving spouse” for “widow” wherever appearing
Source evidence
Code amendment note
Subsecs. (k) to (m). Pub. L. 98–160 substituted “surviving spouse” for “widow” wherever appearing.Enacted provision · exact public law section
(1) Sections 3010(k), 3010(l), 3010(m), and 3021(a)(3) are each amended by striking out “widow” each place it appears and inserting in lieu thereof “surviving spouse”.Veterans’ Compensation and Program Improvements Amendments of 1984
Pub. L. 98–223 title II § 213(3) · 98 Stat. 37
Substituted · 38 U.S.C. § 5110(m)
Pub. L. 98–223 substituted “section” for “subsection”
Source evidence
Code amendment note
Subsec. (m). Pub. L. 98–223 substituted “section” for “subsection”.Enacted provision · exact public law section
(3) Section 3010(m) is amended by striking out “subsection” and inserting in lieu thereof “section”.Spending Reduction Act of 1984
Pub. L. 98–369 § 2501(a)(1) · 98 Stat. 494
Amended · 38 U.S.C. § 5110(b)(3)(A)
Pub. L. 98–369, § 2501(a)(1), designated existing provisions as subpar. (A)
Inserted · 38 U.S.C. § 5110(b)(3)(A)
Pub. L. 98–369, § 2501(a)(1), inserted “described in subparagraph (B) of this paragraph” after “to a veteran”
Substituted · 38 U.S.C. § 5110(b)(3)(A)
Pub. L. 98–369, § 2501(a)(1), substituted “the veteran applies for a retroactive award” for “an application therefor is received”
Added · 38 U.S.C. § 5110(b)(3)(A)
Pub. L. 98–369, § 2501(a)(1), added subpar. (B)
Source evidence
Code amendment note
Subsec. (b)(3)(A). Pub. L. 98–369, § 2501(a)(1), designated existing provisions as subpar. (A), inserted “described in subparagraph (B) of this paragraph” after “to a veteran”, substituted “the veteran applies for a retroactive award” for “an application therefor is received”, and added subpar. (B).Enacted provision · exact public law section
(1) Subsection (b)(3) of section 3010 of title 38, United States Code, is amended— (A) by inserting “(A)” after “(3)”; (B) by inserting “described in subparagraph (B) of this paragraph” after “to a veteran”; (C) by striking out “an application therefor is received” and inserting in lieu thereof “the veteran applies for a retroactive award”; and (D) by adding at the end the following new subparagraph: “(B) A veteran referred to in subparagraph (A) of this paragraph is a veteran who is permanently and totally disabled and who is prevented by a disability from applying for disability pension for a period of at least 30 days beginning on the date on which the veteran became permanently and totally disabled.”.Spending Reduction Act of 1984
Pub. L. 98–369 § 2501(a)(2) · 98 Stat. 494
Amended · 38 U.S.C. § 5110(d)
Pub. L. 98–369, § 2501(a)(2), designated existing provisions as par. (1)
Substituted · 38 U.S.C. § 5110(d)
Pub. L. 98–369, § 2501(a)(2), substituted “dependency and indemnity compensation for which application is received” for “, dependency and indemnity compensation, or death pension, where application is received”
Added · 38 U.S.C. § 5110(d)
Pub. L. 98–369, § 2501(a)(2), added par. (2)
Source evidence
Code amendment note
Subsec. (d). Pub. L. 98–369, § 2501(a)(2), designated existing provisions as par. (1), substituted “dependency and indemnity compensation for which application is received” for “, dependency and indemnity compensation, or death pension, where application is received”, and added par. (2).Enacted provision · exact public law section
(2) Subsection (d) of such section is amended to read as follows: “(d) (1) The effective date of an award of death compensation or dependency and indemnity compensation for which application is received within one year from the date of death shall be the first day of the month in which the death occurred. “(2) The effective date of an award of death pension for which application is received within 45 days from the date of death shall be the first day of the month in which the death occurred.”.Pub. L. 99–576 title VII § 701(63) · 100 Stat. 3248
Substituted · 38 U.S.C. § 5110(b)(1)
Pub. L. 99–576 substituted “the veteran’s” for “his”
Source evidence
Code amendment note
Subsec. (b)(1). Pub. L. 99–576 substituted “the veteran’s” for “his”.Enacted provision · exact public law section
(63) Section 3010(b)(1) is amended by striking out “his” and inserting in lieu thereof “the veteran’s”.Department of Veterans Affairs Health-Care Personnel Act of 1991
Pub. L. 102–40 § 402(b)(1) · 105 Stat. 187
Changed · 38 U.S.C. § 5110
Pub. L. 102–40, § 402(b)(1), renumbered section 3010 of this title as this section
Source evidence
Code amendment note
Pub. L. 102–40, § 402(b)(1), renumbered section 3010 of this title as this section.Enacted provision · exact public law section
(1) Each section contained in any of chapters 51, 53, 55, 57, 59, 61, 71, 72, 76, 78 (as redesignated by subsection (a)), 81, 83, and 85 is redesignated so that the first two digits of the section number of that section are the same as the chapter number of the chapter containing that section.Department of Veterans Affairs Health-Care Personnel Act of 1991
Pub. L. 102–40 § 402(d)(1) · 105 Stat. 187
Substituted · 38 U.S.C. § 5110(g)
Pub. L. 102–40, § 402(d)(1), substituted “5101” for “3001”
Source evidence
Code amendment note
Subsec. (g). Pub. L. 102–40, § 402(d)(1), substituted “5101” for “3001”.Enacted provision · exact public law section
(1) Each provision of title 38, United States Code, that contains a reference to a section redesignated by section 401(a)(4) or by subsection (b) is amended so that the reference refers to the section as redesignated.Pub. L. 102–83 § 5(c)(1) · 105 Stat. 378
Substituted · 38 U.S.C. § 5110(c)
Pub. L. 102–83, § 5(c)(1), substituted “1151” for “351”
Source evidence
Code amendment note
Subsec. (c). Pub. L. 102–83, § 5(c)(1), substituted “1151” for “351”.Enacted provision · exact public law section
(1) Each provision of title 38, United States Code, that contains a reference to a section redesignated by subsection (a) is amended so that the reference refers to the section as redesignated.Pub. L. 102–83 § 5(c)(1) · 105 Stat. 378
Substituted · 38 U.S.C. § 5110(e)(2)
Pub. L. 102–83, § 5(c)(1), substituted “1311(b)” for “411(b)”
Source evidence
Code amendment note
Subsec. (e)(2). Pub. L. 102–83, § 5(c)(1), substituted “1311(b)” for “411(b)”.Enacted provision · exact public law section
(1) Each provision of title 38, United States Code, that contains a reference to a section redesignated by subsection (a) is amended so that the reference refers to the section as redesignated.Pub. L. 102–83 § 4(b)(4)(B) · 105 Stat. 378
Substituted · 38 U.S.C. § 5110(j)
Pub. L. 102–83, § 4(b)(4)(B), substituted “that Secretary” for “the Secretary” after “month fixed by”
Source evidence
Code amendment note
Subsec. (j). Pub. L. 102–83, § 4(b)(4)(B), substituted “that Secretary” for “the Secretary” after “month fixed by”.Enacted provision · exact public law section
(B) Section 5110(j) (the second place “the Secretary” appears).Pub. L. 102–83 § 4(a)(2)(A)(vi) · 105 Stat. 378
Substituted · 38 U.S.C. § 5110(n)
Pub. L. 102–83, § 4(a)(2)(A)(vi), substituted “Secretary” for “Veterans’ Administration”
Source evidence
Code amendment note
Subsec. (n). Pub. L. 102–83, § 4(a)(2)(A)(vi), substituted “Secretary” for “Veterans’ Administration”.Enacted provision · exact public law section
(vi) Section 5110(n).Veterans’ Benefits Improvements Act of 1994
Pub. L. 103–446 title XII § 1201(i)(8) · 108 Stat. 4645
Struck · 38 U.S.C. § 5110(m)
Pub. L. 103–446 struck out subsec. (m) which read as follows: “The effective date of an award of benefits to a surviving spouse based upon termination of actions described in section 103(d)(3) of this title shall not be earlier than the date of receipt of application therefor filed after termination of such actions and after December 31, 1970.”
Source evidence
Code amendment note
Subsec. (m). Pub. L. 103–446 struck out subsec. (m) which read as follows: “The effective date of an award of benefits to a surviving spouse based upon termination of actions described in section 103(d)(3) of this title shall not be earlier than the date of receipt of application therefor filed after termination of such actions and after December 31, 1970.”Enacted provision · exact public law section
(8) Section 5110 is amended by striking out subsection (m).Veterans Benefits Improvement Act of 2004
Pub. L. 108–454 title III § 305 · 118 Stat. 3598
Struck · 38 U.S.C. § 5110(d)
Pub. L. 108–454 struck out par. (1) designation after subsec. (d) designation
Substituted · 38 U.S.C. § 5110(d)
Pub. L. 108–454 substituted “death compensation, dependency and indemnity compensation, or death pension” for “death compensation or dependency and indemnity compensation”
Struck · 38 U.S.C. § 5110(d)
Pub. L. 108–454 struck out par.(2) which read as follows: “The effective date of an award of death pension for which application is received within 45 days from the date of death shall be the first day of the month in which the death occurred.”
Source evidence
Code amendment note
Subsec. (d). Pub. L. 108–454 struck out par. (1) designation after subsec. (d) designation, substituted “death compensation, dependency and indemnity compensation, or death pension” for “death compensation or dependency and indemnity compensation”, and struck out par.(2) which read as follows: “The effective date of an award of death pension for which application is received within 45 days from the date of death shall be the first day of the month in which the death occurred.”Enacted provision · exact public law section
SEC. 305. EFFECTIVE DATE OF DEATH PENSION. Section 5110(d) is amended— (1) by striking “(1)”; (2) by striking “death compensation or dependency and indemnity compensation” and inserting “death compensation, dependency and indemnity compensation, or death pension”; and (3) by striking paragraph (2).Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012
Pub. L. 112–154 title V § 506 · 126 Stat. 1165
Added · 38 U.S.C. § 5110(b)(2)(4)
Pub. L. 112–154 added par. (2)
Redesignated · 38 U.S.C. § 5110(b)(2)(4)
Pub. L. 112–154 redesignated former pars. (2) and (3) as (3) and (4), respectively
Source evidence
Code amendment note
Subsec. (b)(2) to (4). Pub. L. 112–154 added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively.Enacted provision · exact public law section
SEC. 506. AUTHORITY FOR RETROACTIVE EFFECTIVE DATE FOR AWARDS OF DISABILITY COMPENSATION IN CONNECTION WITH APPLICATIONS THAT ARE FULLY-DEVELOPED AT SUBMITTAL. Section 5110(b) is amended— (1) by redesignating paragraphs (2) and (3) as paragraphs (3) and (4), respectively; and (2) by inserting after paragraph (1) the following new paragraph (2): “(2) (A) The effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. “(B) For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation. “(C) This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act.” .Veterans Appeals Improvement and Modernization Act of 2017
Pub. L. 115–55 § 2 · 131 Stat. 1105
Amended · 38 U.S.C. § 5110(a)
Pub. L. 115–55, § 2(l)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”
Source evidence
Code amendment note
Subsec. (a). Pub. L. 115–55, § 2(l)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”Enacted provision · exact public law section
SEC. 2. REFORM OF RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS REGARDING CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY SECRETARY OF VETERANS AFFAIRS. (a) Definitions.— Section 101 of title 38, United States Code, is amended by adding at the end the following new paragraphs: “(34) The term ‘agency of original jurisdiction’ means the activity which entered the original determination with regard to a claim for benefits under laws administered by the Secretary. “(35) The term ‘relevant evidence’ means evidence that tends to prove or disprove a matter in issue. “(36) The term ‘supplemental claim’ means a claim for benefits under laws administered by the Secretary filed by a claimant who had previously filed a claim for the same or similar benefits on the same or similar basis.” . (b) Notice Regarding Claims.— Section 5103(a) of such title is amended— (1) in paragraph (1), in the first sentence, by striking “The” and inserting “Except as provided in paragraph (3), the”; (2) in paragraph (2)(B)(i) by striking “, a claim for reopening a prior decision on a claim, or a claim for an increase in benefits;” and inserting “or a supplemental claim;”; and (3) by adding at the end the following new paragraph: “(3) The requirement to provide notice under paragraph (1) shall not apply with respect to a supplemental claim that is filed within the timeframe set forth in subparagraphs (B) and (D) of section 5110(a)(2) of this title.” . (c) Modification of Rule Regarding Disallowed Claims.— Section 5103A(f) of such title is amended— (1) by striking “reopen” and inserting “readjudicate”; and (2) by striking “material” and inserting “relevant”. (d) Modification of Duty to Assist Claimants.— Section 5103A of such title is amended— (1) by redesignating subsections (e) through (g) as subsections (g) through (i), respectively; and (2) by inserting after subsection (d) the following new subsections: “(e) Applicability of Duty to Assist.— (1) The Secretary’s duty to assist under this section shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the agency of original jurisdiction’s decision with respect to such claim, or supplemental claim, under section 5104 of this title. “(2) The Secretary’s duty to assist under this section shall not apply to higher-level review by the agency of original jurisdiction, pursuant to section 5104B of this title, or to review on appeal by the Board of Veterans’ Appeals. “(f) Correction of Duty to Assist Errors.— (1) If, during review of the agency of original jurisdiction decision under section 5104B of this title, the higher-level adjudicator identifies or learns of an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision being reviewed, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the higher-level adjudicator shall return the claim for correction of such error and readjudication. “(2) (A) If the Board of Veterans’ Appeals, during review on appeal of an agency of original jurisdiction decision, identifies or learns of an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision on appeal, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication. “(B) Remand for correction of such error may include directing the agency of original jurisdiction to obtain an advisory medical opinion under section 5109 of this title. “(3) Nothing in this subsection shall be construed to imply that the Secretary, during the consideration of a claim, does not have a duty to correct an error described in paragraph (1) or (2) that was erroneously not identified during higher-level review or during review on appeal with respect to the claim.” . (e) Decisions and Notices of Decisions.— Subsection (b) of section 5104 of such title is amended to read as follows: “(b) Each notice provided under subsection (a) shall also include all of the following: “(1) Identification of the issues adjudicated. “(2) A summary of the evidence considered by the Secretary. “(3) A summary of the applicable laws and regulations. “(4) Identification of findings favorable to the claimant. “(5) In the case of a denial, identification of elements not satisfied leading to the denial. “(6) An explanation of how to obtain or access evidence used in making the decision. “(7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.” . (f) Binding Nature of Favorable Findings.— (1) In general.— Chapter 51 of such title is amended by inserting after section 5104 the following new section: “§ 5104A. Binding nature of favorable findings “Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.” . (2) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title 38 USC prec. 5100. is amended by inserting after the item relating to section 5104 the following new item: “5104A. Binding nature of favorable findings.”. (g) Higher-level Review by Agency of Original Jurisdiction.— (1) In general.— Chapter 51 of such title, as amended by subsection (f), is further amended by inserting after section 5104A, as added by such subsection, the following new section: “§ 5104B. Higher-level review by the agency of original jurisdiction “(a) In General.— (1) A claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction. “(2) The Secretary shall approve each request for review under paragraph (1). “(b) Time and Manner of Request.— (1) A request for higher-level review by the agency of original jurisdiction shall be— “(A) in writing in such form as the Secretary may prescribe; and “(B) made within one year of the notice of the agency of original jurisdiction’s decision. “(2) Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction. The Secretary shall not deny such request for review by an adjudicator at a different office of the agency of original jurisdiction without good cause. “(c) Decision.— Notice of a higher-level review decision under this section shall be provided in writing and shall include a general statement— “(1) reflecting whether evidence was not considered pursuant to subsection (d); and “(2) noting the options available to the claimant to have the evidence described in paragraph (1), if any, considered by the Department. “(d) Evidentiary Record for Review.— The evidentiary record before the higher-level adjudicator shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed. “(e) De Novo Review.— A review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction shall be de novo.” . (2) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title, as amended by subsection (f), is further amended 38 USC prec. 5100. by inserting after the item relating to section 5104A, as added by such subsection, the following new item: “5104B. Higher-level review by the agency of original jurisdiction.”. (h) Options Following Decision by Agency of Original Jurisdiction.— (1) In general.— Chapter 51 of such title, as amended by subsection (g), is further amended by inserting after section 5104B, as added by such subsection, the following new section: “§ 5104C. Options following decision by agency of original jurisdiction “(a) Within One Year of Decision.— (1) Subject to paragraph (2), in any case in which the Secretary renders a decision on a claim, the claimant may take any of the following actions on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision with respect to that claim: “(A) File a request for higher-level review under section 5104B of this title. “(B) File a supplemental claim under section 5108 of this title. “(C) File a notice of disagreement under section 7105 of this title. “(2) (A) Once a claimant takes an action set forth in paragraph (1), the claimant may not take another action set forth in that paragraph with respect to the same claim or same issue contained within the claim until— “(i) the higher-level review, supplemental claim, or notice of disagreement is adjudicated; or “(ii) the request for higher-level review, supplemental claim, or notice of disagreement is withdrawn. “(B) Nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph (1) in succession with respect to a claim or an issue contained within the claim. “(C) Nothing in this subsection shall prohibit a claimant from taking different actions set forth in paragraph (1) with respect to different claims or different issues contained within a claim. “(D) The Secretary may, as the Secretary considers appropriate, develop and implement a policy for claimants who— “(i) take an action under paragraph (1); “(ii) wish to withdraw the action before the higher-level review, supplemental claim, or notice of disagreement is adjudicated; and “(iii) in lieu of such action take a different action under paragraph (1). “(b) More Than One Year After Decision.— In any case in which the Secretary renders a decision on a claim and more than one year has passed since the date on which the agency of original jurisdiction issues a decision with respect to that claim, the claimant may file a supplemental claim under section 5108 of this title.” . (2) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title, as amended by subsection (g), is further amended 38 USC prec. 5100. by inserting after the item relating to section 5104B, as added by such subsection, the following new item: “5104C. Options following decision by agency of original jurisdiction.”. (i) Supplemental Claims.— (1) In general.— Section 5108 of such title 38 USC 5108. is amended to read as follows: “§ 5108. Supplemental claims “(a) In General.— If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record. “(b) Duty to Assist.— (1) If a claimant, in connection with a supplemental claim, reasonably identifies existing records, whether or not in the custody of a Federal department or agency, the Secretary shall assist the claimant in obtaining the records in accordance with section 5103A of this title. “(2) Assistance under paragraph (1) shall not be predicated upon a finding that new and relevant evidence has been presented or secured.” . (2) Rule of construction.— Section 5108 of such title, as amended by paragraph (1), shall not be construed to impose a higher evidentiary threshold than the new and material evidence standard that was in effect pursuant to such section on the day before the date of the enactment of this Act. (3) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title 38 USC prec. 5100. is amended by striking the item relating to section 5108 and inserting the following new item: “5108. Supplemental claims.”. (j) Remand to Obtain Advisory Medical Opinion.— Section 5109 of such title is amended by adding at the end the following new subsection: “(d) (1) The Board of Veterans’ Appeals shall remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion from an independent medical expert under this section if the Board finds that the Veterans Benefits Administration should have exercised its discretion to obtain such an opinion. “(2) The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.” . (k) Restatement of Requirement for Expedited Treatment of Returned and Remanded Claims.— (1) In general.— Section 5109B of such title is amended to read as follows: “§ 5109B. Expedited treatment of returned and remanded claims “The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Veterans Benefits Administration of any claim that is returned by a higher-level adjudicator under section 5104B of this title or remanded by the Board of Veterans’ Appeals.” . (2) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title 38 USC prec. 5100. is amended by striking the item relating to section 5109B and inserting the following new item: “5109B. Expedited treatment of returned and remanded claims.”. (l) Effective Dates of Awards.— Section 5110 of title 38, United States Code, is amended— (1) by amending subsection (a) to read as follows: “(a) (1) Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. “(2) For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession: “(A) A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. “(B) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. “(C) A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. “(D) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision. “(E) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision. “(3) Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.” ; and (2) in subsection (i), in the first sentence— (A) by striking “reopened” and inserting “readjudicated”; (B) by striking “material” and inserting “relevant”; and (C) by striking “reopening” and inserting “readjudication”. (m) Definition of Award or Increased Award for Purposes of Provisions Relating to Commencement of Period of Payment.— Section 5111(d)(1) of such title is amended by striking “or reopened award” and inserting “award or award based on a supplemental claim”. (n) Modification of Limitation on Fees Allowable for Representation.— Section 5904(c) of such title is amended, in paragraphs (1) and (2), by striking “notice of disagreement is filed” both places it appears and inserting “claimant is provided notice of the agency of original jurisdiction’s initial decision under section 5104 of this title”. (o) Clarification of Board of Veterans’ Appeals Referral Requirements After Order for Reconsideration of Decisions.— Section 7103(b)(1) of title 38, United States Code, is amended by striking “heard” both places it appears and inserting “decided”. (p) Conforming Amendment Relating to Readjudication.— Section 7104(b) of such title is amended by striking “reopened” and inserting “readjudicated”. (q) Modification of Procedures for Appeals to Board of Veterans’ Appeals.— (1) In general.— Section 7105 of title 38, United States Code, is amended— (A) in subsection (a), by striking the first sentence and inserting “Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary.”; (B) by amending subsection (b) to read as follows: “(b) (1) (A) Except in the case of simultaneously contested claims, a notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title. “(B) A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed. “(C) A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board. “(2) (A) Notices of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees, and may be filed by the claimant, the claimant’s legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian. “(B) Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim. “(C) Notices of disagreement shall be filed with the Board. “(3) The notice of disagreement shall indicate whether the claimant requests— “(A) a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(b) of this title; “(B) an opportunity to submit additional evidence without a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(c) of this title; or “(C) a review by the Board without a hearing or the submittal of additional evidence. “(4) The Secretary shall develop a policy to permit a claimant to modify the information identified in the notice of disagreement after the notice of disagreement has been filed under this section pursuant to such requirements as the Secretary may prescribe.” ; (C) by amending subsection (c) to read as follows: “(c) If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except— “(1) in the case of a readjudication or allowance pursuant to a higher-level review that was requested in accordance with section 5104B of this title; “(2) as may otherwise be provided by section 5108 of this title; or “(3) as may otherwise be provided in such regulations as are consistent with this title.” ; (D) by striking subsection (d) and inserting the following new subsection (d): “(d) The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.” ; (E) by striking subsection (e); and (F) in the section heading, by striking “notice of disagreement and”. (2) Clerical amendment.— The table of sections at the beginning of chapter 71 of such title 38 USC prec. 7101. is amended by striking the item relating to section 7105 and inserting the following new item: “7105. Filing of appeal.”. (r) Modification of Procedures and Requirements for Simultaneously Contested Claims.— Subsection (b) of section 7105A of such title is amended to read as follows: “(b) (1) The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of thirty days shall be allowed for filing a brief or argument in response thereto. “(2) Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice.” . (s) Repeal of Procedures for Administrative Appeals.— (1) In general.— Chapter 71 of such title is amended by striking section 7106. (2) Clerical amendment.— The table of sections at the beginning of chapter 71 of such title 38 USC prec. 7101. is amended by striking the item relating to section 7106. (t) Modifications Relating to Appeals: Dockets; Hearings.— Section 7107 of such title is amended to read as follows: “§ 7107. Appeals: dockets; hearings “(a) Dockets.— (1) Subject to paragraph (2), the Board shall maintain at least two separate dockets. “(2) The Board may not maintain more than two separate dockets unless the Board notifies the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives of any additional docket, including a justification for maintaining such additional docket. “(3) (A) The Board may assign to each docket maintained under paragraph (1) such cases as the Board considers appropriate, except that cases described in clause (i) of subparagraph (B) may not be assigned to any docket to which cases described in clause (ii) of such paragraph are assigned. “(B) Cases described in this paragraph are the following: “(i) Cases in which no Board hearing is requested. “(ii) Cases in which a Board hearing is requested in the notice of disagreement. “(4) Except as provided in subsection (b), each case before the Board will be decided in regular order according to its respective place on the docket to which it is assigned by the Board. “(b) Advancement on the Docket.— (1) A case on one of the dockets of the Board maintained under subsection (a) may, for cause shown, be advanced on motion for earlier consideration and determination. “(2) Any such motion shall set forth succinctly the grounds upon which the motion is based. “(3) Such a motion may be granted only— “(A) if the case involves interpretation of law of general application affecting other claims; “(B) if the appellant is seriously ill or is under severe financial hardship; or “(C) for other sufficient cause shown. “(c) Manner and Scheduling of Hearings for Cases on a Docket That May Include a Hearing.— (1) For cases on a docket maintained by the Board under subsection (a) that may include a hearing, in which a hearing is requested in the notice of disagreement, the Board shall notify the appellant whether a Board hearing will be held— “(A) at its principal location; or “(B) by picture and voice transmission at a facility of the Department where the Secretary has provided suitable facilities and equipment to conduct such hearings. “(2) (A) Upon notification of a Board hearing at the Board’s principal location as described in subparagraph (A) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (B) of such paragraph. If so requested, the Board shall grant such request. “(B) Upon notification of a Board hearing by picture and voice transmission as described in subparagraph (B) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (A) of such paragraph. If so requested, the Board shall grant such request. “(d) Screening of Cases.— Nothing in this section shall be construed to preclude the screening of cases for purposes of— “(1) determining the adequacy of the record for decisional purposes; or “(2) the development, or attempted development, of a record found to be inadequate for decisional purposes. “(e) Policy on Changing Dockets.— The Secretary shall develop and implement a policy allowing an appellant to move the appellant’s case from one docket to another docket.” . (u) Repeal of Certain Authority for Independent Medical Opinions.— (1) In general.— Section 7109 of such title is repealed. (2) Conforming amendment.— Section 5701(b)(1) of such title is amended by striking “or 7109”. (3) Clerical amendment.— The table of sections at the beginning of chapter 71 of such title 38 USC prec. 7101. is amended by striking the item relating to section 7109. (v) Clarification of Procedures for Review of Decisions on Grounds of Clear and Unmistakable Error.— Section 7111(e) of such title is amended by striking “, without referral to any adjudicative or hearing official acting on behalf of the Secretary”. (w) Evidentiary Record Before Board of Veterans’ Appeals.— (1) In general.— Chapter 71 of such title is amended by adding at the end the following new section: “§ 7113. Evidentiary record before the Board of Veterans’ Appeals “(a) Cases With No Request for a Hearing or Additional Evidence.— For cases in which a hearing before the Board of Veterans’ Appeals is not requested in the notice of disagreement and no request was made to submit evidence, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. “(b) Cases With a Request for a Hearing.— (1) Except as provided in paragraph (2), for cases in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. “(2) The evidentiary record before the Board for cases described in paragraph (1) shall include each of the following, which the Board shall consider in the first instance: “(A) Evidence submitted by the appellant and his or her representative, if any, at the Board hearing. “(B) Evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing. “(c) Cases With No Request for a Hearing and With a Request for Additional Evidence.— (1) Except as provided in paragraph (2), for cases in which a hearing is not requested in the notice of disagreement but an opportunity to submit evidence is requested, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal. “(2) The evidentiary record before the Board for cases described in paragraph (1) shall include each of the following, which the Board shall consider in the first instance: “(A) Evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement. “(B) Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.” . (2) Notification when evidence not considered.— Section 7104(d) of such title is amended— (A) in paragraph (1), by striking “; and” and inserting a semicolon; (B) by redesignating paragraph (2) as paragraph (3); and (C) by inserting after paragraph (1) the following new paragraph (2): “(2) a general statement— “(A) reflecting whether evidence was not considered in making the decision because the evidence was received at a time when not permitted under section 7113 of this title; and “(B) noting such options as may be available for having the evidence considered by the Department; and” . (3) Clerical amendment.— The table of sections at the beginning of chapter 71 of such title 38 USC prec. 7101. is amended by inserting after the item relating to section 7112 the following new item: “7113. Evidentiary record before the Board of Veterans’ Appeals.”. (x) Applicability.— (1) In general.— Except as otherwise provided in this subsection, the amendments made by this section shall apply to all claims for which notice of a decision under section 5104 of title 38, United States Code, is provided by the Secretary of Veterans Affairs on or after the later of— (A) the date that is 540 days after the date of the enactment of this Act; and (B) the date that is 30 days after the date on which the Secretary of Veterans Affairs submits to the appropriate committees of Congress— (i) a certification that the Secretary confirms, without delegation, that the Department of Veterans Affairs has the resources, personnel, office space, procedures, and information technology required— (I) to carry out the new appeals system; (II) to timely address appeals under the new appeals system; and (III) to timely address appeals of decisions on legacy claims; and (ii) a summary of the expectations for performance outcomes that the Secretary used in making the certification under clause (i)(III) and a comparison of such expected performance outcomes with actual performance outcomes with respect to appeals of legacy claims before the effective date of the new appeals system. (2) Collaboration.— In determining whether and when to make a certification under paragraph (1)(B), the Secretary shall collaborate with, partner with, and give weight to the advice of veterans service organizations and such other stakeholders as the Secretary considers appropriate. (3) Early applicability.— The Secretary may apply the new appeals system to a claim with respect to which the claimant— (A) receives a notice of a decision under section 5104 of such title after the date of the enactment of this Act and before the applicability date set forth in paragraph (1); and (B) elects to subject the claim to the new appeals system. (4) Phased rollout.— The Secretary may begin implementation of the new appeals system in phases, with the first phase of such phased implementation beginning on the applicability date set forth in paragraph (1). (5) Treatment of legacy claims.— With respect to legacy claims, upon the issuance to a claimant of a statement of the case or supplemental statement of the case occurring on or after the applicability date specified in paragraph (1), a claimant may elect to participate in the new appeals system. (6) Publication of applicability date.— Not later than the date on which the new appeals system goes into effect (or the first phase of the new appeals system goes into effect under paragraph (4), as the case may be), the Secretary shall publish in the Federal Register such date. (7) Definitions.— In this subsection: (A) Appropriate committees of congress.— The term “appropriate committees of Congress” means— (i) the Committee on Veterans’ Affairs and the Committee on Appropriations of the Senate; and (ii) the Committee on Veterans’ Affairs and the Committee on Appropriations of the House of Representatives. (B) Veterans service organization.— The term “veterans service organization” means any organization recognized by the Secretary for the representation of veterans under section 5902 of title 38, United States Code. (y) Rule of Construction.— Nothing in this section or any of the amendments made by this section shall be construed to limit the ability of a claimant to request a revision of a decision under section 5109A or 7111 of title 38, United States Code.Effective date note
Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title, and bracketed note thereunder.Veterans Appeals Improvement and Modernization Act of 2017
Pub. L. 115–55 § 2 · 131 Stat. 1105
Substituted · 38 U.S.C. § 5110(i)
Pub. L. 115–55, § 2(l)(2), substituted “readjudicated” for “reopened”
Substituted · 38 U.S.C. § 5110(i)
Pub. L. 115–55, § 2(l)(2), substituted “relevant” for “material”
Substituted · 38 U.S.C. § 5110(i)
Pub. L. 115–55, § 2(l)(2), substituted “readjudication” for “reopening”
Source evidence
Code amendment note
Subsec. (i). Pub. L. 115–55, § 2(l)(2), substituted “readjudicated” for “reopened”, “relevant” for “material”, and “readjudication” for “reopening”.Enacted provision · exact public law section
SEC. 2. REFORM OF RIGHTS AND PROCESSES RELATING TO APPEALS OF DECISIONS REGARDING CLAIMS FOR BENEFITS UNDER LAWS ADMINISTERED BY SECRETARY OF VETERANS AFFAIRS. (a) Definitions.— Section 101 of title 38, United States Code, is amended by adding at the end the following new paragraphs: “(34) The term ‘agency of original jurisdiction’ means the activity which entered the original determination with regard to a claim for benefits under laws administered by the Secretary. “(35) The term ‘relevant evidence’ means evidence that tends to prove or disprove a matter in issue. “(36) The term ‘supplemental claim’ means a claim for benefits under laws administered by the Secretary filed by a claimant who had previously filed a claim for the same or similar benefits on the same or similar basis.” . (b) Notice Regarding Claims.— Section 5103(a) of such title is amended— (1) in paragraph (1), in the first sentence, by striking “The” and inserting “Except as provided in paragraph (3), the”; (2) in paragraph (2)(B)(i) by striking “, a claim for reopening a prior decision on a claim, or a claim for an increase in benefits;” and inserting “or a supplemental claim;”; and (3) by adding at the end the following new paragraph: “(3) The requirement to provide notice under paragraph (1) shall not apply with respect to a supplemental claim that is filed within the timeframe set forth in subparagraphs (B) and (D) of section 5110(a)(2) of this title.” . (c) Modification of Rule Regarding Disallowed Claims.— Section 5103A(f) of such title is amended— (1) by striking “reopen” and inserting “readjudicate”; and (2) by striking “material” and inserting “relevant”. (d) Modification of Duty to Assist Claimants.— Section 5103A of such title is amended— (1) by redesignating subsections (e) through (g) as subsections (g) through (i), respectively; and (2) by inserting after subsection (d) the following new subsections: “(e) Applicability of Duty to Assist.— (1) The Secretary’s duty to assist under this section shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the agency of original jurisdiction’s decision with respect to such claim, or supplemental claim, under section 5104 of this title. “(2) The Secretary’s duty to assist under this section shall not apply to higher-level review by the agency of original jurisdiction, pursuant to section 5104B of this title, or to review on appeal by the Board of Veterans’ Appeals. “(f) Correction of Duty to Assist Errors.— (1) If, during review of the agency of original jurisdiction decision under section 5104B of this title, the higher-level adjudicator identifies or learns of an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision being reviewed, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the higher-level adjudicator shall return the claim for correction of such error and readjudication. “(2) (A) If the Board of Veterans’ Appeals, during review on appeal of an agency of original jurisdiction decision, identifies or learns of an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision on appeal, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication. “(B) Remand for correction of such error may include directing the agency of original jurisdiction to obtain an advisory medical opinion under section 5109 of this title. “(3) Nothing in this subsection shall be construed to imply that the Secretary, during the consideration of a claim, does not have a duty to correct an error described in paragraph (1) or (2) that was erroneously not identified during higher-level review or during review on appeal with respect to the claim.” . (e) Decisions and Notices of Decisions.— Subsection (b) of section 5104 of such title is amended to read as follows: “(b) Each notice provided under subsection (a) shall also include all of the following: “(1) Identification of the issues adjudicated. “(2) A summary of the evidence considered by the Secretary. “(3) A summary of the applicable laws and regulations. “(4) Identification of findings favorable to the claimant. “(5) In the case of a denial, identification of elements not satisfied leading to the denial. “(6) An explanation of how to obtain or access evidence used in making the decision. “(7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.” . (f) Binding Nature of Favorable Findings.— (1) In general.— Chapter 51 of such title is amended by inserting after section 5104 the following new section: “§ 5104A. Binding nature of favorable findings “Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.” . (2) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title 38 USC prec. 5100. is amended by inserting after the item relating to section 5104 the following new item: “5104A. Binding nature of favorable findings.”. (g) Higher-level Review by Agency of Original Jurisdiction.— (1) In general.— Chapter 51 of such title, as amended by subsection (f), is further amended by inserting after section 5104A, as added by such subsection, the following new section: “§ 5104B. Higher-level review by the agency of original jurisdiction “(a) In General.— (1) A claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction. “(2) The Secretary shall approve each request for review under paragraph (1). “(b) Time and Manner of Request.— (1) A request for higher-level review by the agency of original jurisdiction shall be— “(A) in writing in such form as the Secretary may prescribe; and “(B) made within one year of the notice of the agency of original jurisdiction’s decision. “(2) Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction. The Secretary shall not deny such request for review by an adjudicator at a different office of the agency of original jurisdiction without good cause. “(c) Decision.— Notice of a higher-level review decision under this section shall be provided in writing and shall include a general statement— “(1) reflecting whether evidence was not considered pursuant to subsection (d); and “(2) noting the options available to the claimant to have the evidence described in paragraph (1), if any, considered by the Department. “(d) Evidentiary Record for Review.— The evidentiary record before the higher-level adjudicator shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed. “(e) De Novo Review.— A review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction shall be de novo.” . (2) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title, as amended by subsection (f), is further amended 38 USC prec. 5100. by inserting after the item relating to section 5104A, as added by such subsection, the following new item: “5104B. Higher-level review by the agency of original jurisdiction.”. (h) Options Following Decision by Agency of Original Jurisdiction.— (1) In general.— Chapter 51 of such title, as amended by subsection (g), is further amended by inserting after section 5104B, as added by such subsection, the following new section: “§ 5104C. Options following decision by agency of original jurisdiction “(a) Within One Year of Decision.— (1) Subject to paragraph (2), in any case in which the Secretary renders a decision on a claim, the claimant may take any of the following actions on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision with respect to that claim: “(A) File a request for higher-level review under section 5104B of this title. “(B) File a supplemental claim under section 5108 of this title. “(C) File a notice of disagreement under section 7105 of this title. “(2) (A) Once a claimant takes an action set forth in paragraph (1), the claimant may not take another action set forth in that paragraph with respect to the same claim or same issue contained within the claim until— “(i) the higher-level review, supplemental claim, or notice of disagreement is adjudicated; or “(ii) the request for higher-level review, supplemental claim, or notice of disagreement is withdrawn. “(B) Nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph (1) in succession with respect to a claim or an issue contained within the claim. “(C) Nothing in this subsection shall prohibit a claimant from taking different actions set forth in paragraph (1) with respect to different claims or different issues contained within a claim. “(D) The Secretary may, as the Secretary considers appropriate, develop and implement a policy for claimants who— “(i) take an action under paragraph (1); “(ii) wish to withdraw the action before the higher-level review, supplemental claim, or notice of disagreement is adjudicated; and “(iii) in lieu of such action take a different action under paragraph (1). “(b) More Than One Year After Decision.— In any case in which the Secretary renders a decision on a claim and more than one year has passed since the date on which the agency of original jurisdiction issues a decision with respect to that claim, the claimant may file a supplemental claim under section 5108 of this title.” . (2) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title, as amended by subsection (g), is further amended 38 USC prec. 5100. by inserting after the item relating to section 5104B, as added by such subsection, the following new item: “5104C. Options following decision by agency of original jurisdiction.”. (i) Supplemental Claims.— (1) In general.— Section 5108 of such title 38 USC 5108. is amended to read as follows: “§ 5108. Supplemental claims “(a) In General.— If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record. “(b) Duty to Assist.— (1) If a claimant, in connection with a supplemental claim, reasonably identifies existing records, whether or not in the custody of a Federal department or agency, the Secretary shall assist the claimant in obtaining the records in accordance with section 5103A of this title. “(2) Assistance under paragraph (1) shall not be predicated upon a finding that new and relevant evidence has been presented or secured.” . (2) Rule of construction.— Section 5108 of such title, as amended by paragraph (1), shall not be construed to impose a higher evidentiary threshold than the new and material evidence standard that was in effect pursuant to such section on the day before the date of the enactment of this Act. (3) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title 38 USC prec. 5100. is amended by striking the item relating to section 5108 and inserting the following new item: “5108. Supplemental claims.”. (j) Remand to Obtain Advisory Medical Opinion.— Section 5109 of such title is amended by adding at the end the following new subsection: “(d) (1) The Board of Veterans’ Appeals shall remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion from an independent medical expert under this section if the Board finds that the Veterans Benefits Administration should have exercised its discretion to obtain such an opinion. “(2) The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.” . (k) Restatement of Requirement for Expedited Treatment of Returned and Remanded Claims.— (1) In general.— Section 5109B of such title is amended to read as follows: “§ 5109B. Expedited treatment of returned and remanded claims “The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Veterans Benefits Administration of any claim that is returned by a higher-level adjudicator under section 5104B of this title or remanded by the Board of Veterans’ Appeals.” . (2) Clerical amendment.— The table of sections at the beginning of chapter 51 of such title 38 USC prec. 5100. is amended by striking the item relating to section 5109B and inserting the following new item: “5109B. Expedited treatment of returned and remanded claims.”. (l) Effective Dates of Awards.— Section 5110 of title 38, United States Code, is amended— (1) by amending subsection (a) to read as follows: “(a) (1) Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. “(2) For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession: “(A) A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. “(B) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. “(C) A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. “(D) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Veterans’ Appeals issues a decision. “(E) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Court of Appeals for Veterans Claims issues a decision. “(3) Except as otherwise provided in this section, for supplemental claims received more than one year after the date on which the agency of original jurisdiction issued a decision or the Board of Veterans’ Appeals issued a decision, the effective date shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the supplemental claim.” ; and (2) in subsection (i), in the first sentence— (A) by striking “reopened” and inserting “readjudicated”; (B) by striking “material” and inserting “relevant”; and (C) by striking “reopening” and inserting “readjudication”. (m) Definition of Award or Increased Award for Purposes of Provisions Relating to Commencement of Period of Payment.— Section 5111(d)(1) of such title is amended by striking “or reopened award” and inserting “award or award based on a supplemental claim”. (n) Modification of Limitation on Fees Allowable for Representation.— Section 5904(c) of such title is amended, in paragraphs (1) and (2), by striking “notice of disagreement is filed” both places it appears and inserting “claimant is provided notice of the agency of original jurisdiction’s initial decision under section 5104 of this title”. (o) Clarification of Board of Veterans’ Appeals Referral Requirements After Order for Reconsideration of Decisions.— Section 7103(b)(1) of title 38, United States Code, is amended by striking “heard” both places it appears and inserting “decided”. (p) Conforming Amendment Relating to Readjudication.— Section 7104(b) of such title is amended by striking “reopened” and inserting “readjudicated”. (q) Modification of Procedures for Appeals to Board of Veterans’ Appeals.— (1) In general.— Section 7105 of title 38, United States Code, is amended— (A) in subsection (a), by striking the first sentence and inserting “Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary.”; (B) by amending subsection (b) to read as follows: “(b) (1) (A) Except in the case of simultaneously contested claims, a notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title. “(B) A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed. “(C) A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board. “(2) (A) Notices of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees, and may be filed by the claimant, the claimant’s legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian. “(B) Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim. “(C) Notices of disagreement shall be filed with the Board. “(3) The notice of disagreement shall indicate whether the claimant requests— “(A) a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(b) of this title; “(B) an opportunity to submit additional evidence without a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(c) of this title; or “(C) a review by the Board without a hearing or the submittal of additional evidence. “(4) The Secretary shall develop a policy to permit a claimant to modify the information identified in the notice of disagreement after the notice of disagreement has been filed under this section pursuant to such requirements as the Secretary may prescribe.” ; (C) by amending subsection (c) to read as follows: “(c) If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except— “(1) in the case of a readjudication or allowance pursuant to a higher-level review that was requested in accordance with section 5104B of this title; “(2) as may otherwise be provided by section 5108 of this title; or “(3) as may otherwise be provided in such regulations as are consistent with this title.” ; (D) by striking subsection (d) and inserting the following new subsection (d): “(d) The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.” ; (E) by striking subsection (e); and (F) in the section heading, by striking “notice of disagreement and”. (2) Clerical amendment.— The table of sections at the beginning of chapter 71 of such title 38 USC prec. 7101. is amended by striking the item relating to section 7105 and inserting the following new item: “7105. Filing of appeal.”. (r) Modification of Procedures and Requirements for Simultaneously Contested Claims.— Subsection (b) of section 7105A of such title is amended to read as follows: “(b) (1) The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of thirty days shall be allowed for filing a brief or argument in response thereto. “(2) Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice.” . (s) Repeal of Procedures for Administrative Appeals.— (1) In general.— Chapter 71 of such title is amended by striking section 7106. (2) Clerical amendment.— The table of sections at the beginning of chapter 71 of such title 38 USC prec. 7101. is amended by striking the item relating to section 7106. (t) Modifications Relating to Appeals: Dockets; Hearings.— Section 7107 of such title is amended to read as follows: “§ 7107. Appeals: dockets; hearings “(a) Dockets.— (1) Subject to paragraph (2), the Board shall maintain at least two separate dockets. “(2) The Board may not maintain more than two separate dockets unless the Board notifies the Committee on Veterans’ Affairs of the Senate and the Committee on Veterans’ Affairs of the House of Representatives of any additional docket, including a justification for maintaining such additional docket. “(3) (A) The Board may assign to each docket maintained under paragraph (1) such cases as the Board considers appropriate, except that cases described in clause (i) of subparagraph (B) may not be assigned to any docket to which cases described in clause (ii) of such paragraph are assigned. “(B) Cases described in this paragraph are the following: “(i) Cases in which no Board hearing is requested. “(ii) Cases in which a Board hearing is requested in the notice of disagreement. “(4) Except as provided in subsection (b), each case before the Board will be decided in regular order according to its respective place on the docket to which it is assigned by the Board. “(b) Advancement on the Docket.— (1) A case on one of the dockets of the Board maintained under subsection (a) may, for cause shown, be advanced on motion for earlier consideration and determination. “(2) Any such motion shall set forth succinctly the grounds upon which the motion is based. “(3) Such a motion may be granted only— “(A) if the case involves interpretation of law of general application affecting other claims; “(B) if the appellant is seriously ill or is under severe financial hardship; or “(C) for other sufficient cause shown. “(c) Manner and Scheduling of Hearings for Cases on a Docket That May Include a Hearing.— (1) For cases on a docket maintained by the Board under subsection (a) that may include a hearing, in which a hearing is requested in the notice of disagreement, the Board shall notify the appellant whether a Board hearing will be held— “(A) at its principal location; or “(B) by picture and voice transmission at a facility of the Department where the Secretary has provided suitable facilities and equipment to conduct such hearings. “(2) (A) Upon notification of a Board hearing at the Board’s principal location as described in subparagraph (A) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (B) of such paragraph. If so requested, the Board shall grant such request. “(B) Upon notification of a Board hearing by picture and voice transmission as described in subparagraph (B) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (A) of such paragraph. If so requested, the Board shall grant such request. “(d) Screening of Cases.— Nothing in this section shall be construed to preclude the screening of cases for purposes of— “(1) determining the adequacy of the record for decisional purposes; or “(2) the development, or attempted development, of a record found to be inadequate for decisional purposes. “(e) Policy on Changing Dockets.— The Secretary shall develop and implement a policy allowing an appellant to move the appellant’s case from one docket to another docket.” . (u) Repeal of Certain Authority for Independent Medical Opinions.— (1) In general.— Section 7109 of such title is repealed. (2) Conforming amendment.— Section 5701(b)(1) of such title is amended by striking “or 7109”. (3) Clerical amendment.— The table of sections at the beginning of chapter 71 of such title 38 USC prec. 7101. is amended by striking the item relating to section 7109. (v) Clarification of Procedures for Review of Decisions on Grounds of Clear and Unmistakable Error.— Section 7111(e) of such title is amended by striking “, without referral to any adjudicative or hearing official acting on behalf of the Secretary”. (w) Evidentiary Record Before Board of Veterans’ Appeals.— (1) In general.— Chapter 71 of such title is amended by adding at the end the following new section: “§ 7113. Evidentiary record before the Board of Veterans’ Appeals “(a) Cases With No Request for a Hearing or Additional Evidence.— For cases in which a hearing before the Board of Veterans’ Appeals is not requested in the notice of disagreement and no request was made to submit evidence, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. “(b) Cases With a Request for a Hearing.— (1) Except as provided in paragraph (2), for cases in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal. “(2) The evidentiary record before the Board for cases described in paragraph (1) shall include each of the following, which the Board shall consider in the first instance: “(A) Evidence submitted by the appellant and his or her representative, if any, at the Board hearing. “(B) Evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing. “(c) Cases With No Request for a Hearing and With a Request for Additional Evidence.— (1) Except as provided in paragraph (2), for cases in which a hearing is not requested in the notice of disagreement but an opportunity to submit evidence is requested, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal. “(2) The evidentiary record before the Board for cases described in paragraph (1) shall include each of the following, which the Board shall consider in the first instance: “(A) Evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement. “(B) Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.” . (2) Notification when evidence not considered.— Section 7104(d) of such title is amended— (A) in paragraph (1), by striking “; and” and inserting a semicolon; (B) by redesignating paragraph (2) as paragraph (3); and (C) by inserting after paragraph (1) the following new paragraph (2): “(2) a general statement— “(A) reflecting whether evidence was not considered in making the decision because the evidence was received at a time when not permitted under section 7113 of this title; and “(B) noting such options as may be available for having the evidence considered by the Department; and” . (3) Clerical amendment.— The table of sections at the beginning of chapter 71 of such title 38 USC prec. 7101. is amended by inserting after the item relating to section 7112 the following new item: “7113. Evidentiary record before the Board of Veterans’ Appeals.”. (x) Applicability.— (1) In general.— Except as otherwise provided in this subsection, the amendments made by this section shall apply to all claims for which notice of a decision under section 5104 of title 38, United States Code, is provided by the Secretary of Veterans Affairs on or after the later of— (A) the date that is 540 days after the date of the enactment of this Act; and (B) the date that is 30 days after the date on which the Secretary of Veterans Affairs submits to the appropriate committees of Congress— (i) a certification that the Secretary confirms, without delegation, that the Department of Veterans Affairs has the resources, personnel, office space, procedures, and information technology required— (I) to carry out the new appeals system; (II) to timely address appeals under the new appeals system; and (III) to timely address appeals of decisions on legacy claims; and (ii) a summary of the expectations for performance outcomes that the Secretary used in making the certification under clause (i)(III) and a comparison of such expected performance outcomes with actual performance outcomes with respect to appeals of legacy claims before the effective date of the new appeals system. (2) Collaboration.— In determining whether and when to make a certification under paragraph (1)(B), the Secretary shall collaborate with, partner with, and give weight to the advice of veterans service organizations and such other stakeholders as the Secretary considers appropriate. (3) Early applicability.— The Secretary may apply the new appeals system to a claim with respect to which the claimant— (A) receives a notice of a decision under section 5104 of such title after the date of the enactment of this Act and before the applicability date set forth in paragraph (1); and (B) elects to subject the claim to the new appeals system. (4) Phased rollout.— The Secretary may begin implementation of the new appeals system in phases, with the first phase of such phased implementation beginning on the applicability date set forth in paragraph (1). (5) Treatment of legacy claims.— With respect to legacy claims, upon the issuance to a claimant of a statement of the case or supplemental statement of the case occurring on or after the applicability date specified in paragraph (1), a claimant may elect to participate in the new appeals system. (6) Publication of applicability date.— Not later than the date on which the new appeals system goes into effect (or the first phase of the new appeals system goes into effect under paragraph (4), as the case may be), the Secretary shall publish in the Federal Register such date. (7) Definitions.— In this subsection: (A) Appropriate committees of congress.— The term “appropriate committees of Congress” means— (i) the Committee on Veterans’ Affairs and the Committee on Appropriations of the Senate; and (ii) the Committee on Veterans’ Affairs and the Committee on Appropriations of the House of Representatives. (B) Veterans service organization.— The term “veterans service organization” means any organization recognized by the Secretary for the representation of veterans under section 5902 of title 38, United States Code. (y) Rule of Construction.— Nothing in this section or any of the amendments made by this section shall be construed to limit the ability of a claimant to request a revision of a decision under section 5109A or 7111 of title 38, United States Code.Effective date note
Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title, and bracketed note thereunder.William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021
Pub. L. 116–283 div. A title IX § 926(a)(52) · 134 Stat. 3388
Substituted · 38 U.S.C. § 5110(j)
Pub. L. 116–283 substituted “air, or space service” for “or air service”
Source evidence
Code amendment note
Subsec. (j). Pub. L. 116–283 substituted “air, or space service” for “or air service”.Enacted provision · exact public law section
(52) Section 5110(j).
37 of 52 references resolved to an enrolled provision · 15 partial
Editorial Notes
References in Text
The date of the enactment of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, referred to in subsec. (b)(2)(C), is the date of enactment of Pub. L. 112–154, which was approved .
Amendments1962–2021 · 15 rounds
2021
Subsec. (j). Pub. L. 116–283 substituted “air, or space service” for “or air service”.
2017
Subsec. (a). Pub. L. 115–55, § 2(l)(1), amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: “Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”
Subsec. (i). Pub. L. 115–55, § 2(l)(2), substituted “readjudicated” for “reopened”, “relevant” for “material”, and “readjudication” for “reopening”.
2012
Subsec. (b)(2) to (4). Pub. L. 112–154 added par. (2) and redesignated former pars. (2) and (3) as (3) and (4), respectively.
2004
Subsec. (d). Pub. L. 108–454 struck out par. (1) designation after subsec. (d) designation, substituted “death compensation, dependency and indemnity compensation, or death pension” for “death compensation or dependency and indemnity compensation”, and struck out par.(2) which read as follows: “The effective date of an award of death pension for which application is received within 45 days from the date of death shall be the first day of the month in which the death occurred.”
1994
Subsec. (m). Pub. L. 103–446 struck out subsec. (m) which read as follows: “The effective date of an award of benefits to a surviving spouse based upon termination of actions described in section 103(d)(3) of this title shall not be earlier than the date of receipt of application therefor filed after termination of such actions and after .”
1991
Pub. L. 102–40, § 402(b)(1), renumbered section 3010 of this title as this section.
Subsec. (c). Pub. L. 102–83, § 5(c)(1), substituted “1151” for “351”.
Subsec. (e)(2). Pub. L. 102–83, § 5(c)(1), substituted “1311(b)” for “411(b)”.
Subsec. (g). Pub. L. 102–40, § 402(d)(1), substituted “5101” for “3001”.
Subsec. (j). Pub. L. 102–83, § 4(b)(4)(B), substituted “that Secretary” for “the Secretary” after “month fixed by”.
Subsec. (n). Pub. L. 102–83, § 4(a)(2)(A)(vi), substituted “Secretary” for “Veterans’ Administration”.
1986
Subsec. (b)(1). Pub. L. 99–576 substituted “the veteran’s” for “his”.
1984
Subsec. (b)(3)(A). Pub. L. 98–369, § 2501(a)(1), designated existing provisions as subpar. (A), inserted “described in subparagraph (B) of this paragraph” after “to a veteran”, substituted “the veteran applies for a retroactive award” for “an application therefor is received”, and added subpar. (B).
Subsec. (d). Pub. L. 98–369, § 2501(a)(2), designated existing provisions as par. (1), substituted “dependency and indemnity compensation for which application is received” for “, dependency and indemnity compensation, or death pension, where application is received”, and added par. (2).
Subsec. (m). Pub. L. 98–223 substituted “section” for “subsection”.
1983
Subsecs. (k) to (m). Pub. L. 98–160 substituted “surviving spouse” for “widow” wherever appearing.
1981
Subsec. (e). Pub. L. 97–66 designated existing provisions as par. (1), substituted “Except as provided in paragraph (2) of this subsection, the” for “The”, and added par. (2).
1975
Subsec. (b)(2), (3). Pub. L. 94–71 added par. (2) and redesignated former par. (2) as (3).
1974
Subsec. (l). Pub. L. 93–527 inserted provisions relating to an award or increase of benefits based on recognition of a child upon termination of the child’s marriage by death or divorce.
1973
Subsec. (b). Pub. L. 93–177 designated existing provisions as par. (1) and added par. (2).
1970
Subsecs. (l), (m). Pub. L. 91–376 added subsecs. (l) and (m).
Subsec. (n). Pub. L. 91–584 added subsec. (n).
1962
Subsec. (a). Pub. L. 87–825 inserted “based on an original claim, a claim reopened after final adjudication, or a claim for increase”.
Subsec. (c). Pub. L. 87–825 added subsec. (c). Former subsec. (c) redesignated (d).
Subsec. (d). Pub. L. 87–825 redesignated former subsec. (c) as (d) and substituted first day of month in which the death occurred, for the day after the day of death, as the effective date. Former subsec. (d) redesignated (e).
Subsec. (e). Pub. L. 87–825 redesignated former subsec. (d) as (e), substituted “first day of the month” for “date”, and struck out “the entitlement arose” after “from such date.” Former subsec. (e) redesignated (j).
Subsec. (f). Pub. L. 87–825 added subsec. (f). A prior subsec. (f) added by Pub. L. 87–674 was redesignated (k) by Pub. L. 87–825.
Subsecs. (g) to (i). Pub. L. 87–825 added subsecs. (g) to (i).
Subsec. (j). Pub. L. 87–825 redesignated former subsec. (e) as (j), and substituted “first day of the month” for “day after the date”, and “month of death” for “date of death”.
Subsec. (k). Pub. L. 87–825 redesignated former subsec. (f), added by Pub. L. 87–674, as (k).
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after , or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title, and bracketed note thereunder.
Effective Date of 1984 Amendment
Pub. L. 98–369, div. B, title V, § 2501(b), , 98 Stat. 1117, provided that: “The amendments made by subsection (a)(1) [amending this section] and the provisions of paragraph (2) of section 3010(d) [now 5110(d)] of title 38, United States Code, as added by subsection (a)(2), shall take effect with respect to applications that are first received after , for benefits under chapter 15 of title 38, United States Code.”
Effective Date of 1981 Amendment
Amendment by Pub. L. 97–66 effective , see section 701(a) of Pub. L. 97–66, set out as a note under section 1114 of this title.
Effective Date of 1975 Amendment
Amendment by Pub. L. 94–71 effective , see section 301 of Pub. L. 94–71, set out as a note under section 1114 of this title.
Effective Date of 1974 Amendment
Amendment by Pub. L. 93–527 effective , see section 10 of Pub. L. 93–527, set out as a note under section 1521 of this title.
Effective Date of 1973 Amendment
Pub. L. 93–177, § 6(b), , 87 Stat. 696, provided that: “Subsection (a) of this section [amending this section] shall apply to applications filed after its effective date [], but in no event shall an award made thereunder be effective prior to such effective date.”
Effective Date of 1970 Amendment
Amendment by Pub. L. 91–376 effective , see section 9 of Pub. L. 91–376, set out as a note under section 1114 of this title.
Effective Date of 1962 Amendment
Amendment by Pub. L. 87–825 effective first day of second calendar month which begins after , see section 7 of Pub. L. 87–825, set out as a note under section 110 of this title.
Credits
1958–2021 · 20 acts
- 1958Pub. L. 85–857, , 72 Stat. 1226, § 3010
- 1962Pub. L. 87–674, § 3, , 76 Stat. 558
- 1962Pub. L. 87–825, § 1, , 76 Stat. 948
- 1970Pub. L. 91–376, § 7, , 84 Stat. 790
- 1970Pub. L. 91–584, § 13, , 84 Stat. 1578
- 1973Pub. L. 93–177, § 6(a), , 87 Stat. 696
- 1974Pub. L. 93–527, § 9(b), , 88 Stat. 1705
- 1975Pub. L. 94–71, title I, § 104, , 89 Stat. 396
- 1981Pub. L. 97–66, title II, § 204(b), , 95 Stat. 1029
- 1983Pub. L. 98–160, title VII, § 703(1), , 97 Stat. 1010
- 1984Pub. L. 98–223, title II, § 213(3), , 98 Stat. 46
- 1984Pub. L. 98–369, div. B, title V, § 2501(a), , 98 Stat. 1116
- 1986Pub. L. 99–576, title VII, § 701(63), , 100 Stat. 3296
- 1991renumbered § 5110 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), , 105 Stat. 238, 239
- 1991Pub. L. 102–83, §§ 4(a)(2)(A)(vi), (b)(4)(B), 5(c)(1), , 105 Stat. 403, 405, 406
- 1994Pub. L. 103–446, title XII, § 1201(i)(8), , 108 Stat. 4688
- 2004Pub. L. 108–454, title III, § 305, , 118 Stat. 3611
- 2012Pub. L. 112–154, title V, § 506, , 126 Stat. 1193
- 2017Pub. L. 115–55, § 2(l), , 131 Stat. 1110
- 2021Pub. L. 116–283, div. A, title IX, § 926(a)(52), , 134 Stat. 3830.
Show as published
(Pub. L. 85–857, , 72 Stat. 1226, § 3010; Pub. L. 87–674, § 3, , 76 Stat. 558; Pub. L. 87–825, § 1, , 76 Stat. 948; Pub. L. 91–376, § 7, , 84 Stat. 790; Pub. L. 91–584, § 13, , 84 Stat. 1578; Pub. L. 93–177, § 6(a), , 87 Stat. 696; Pub. L. 93–527, § 9(b), , 88 Stat. 1705; Pub. L. 94–71, title I, § 104, , 89 Stat. 396; Pub. L. 97–66, title II, § 204(b), , 95 Stat. 1029; Pub. L. 98–160, title VII, § 703(1), , 97 Stat. 1010; Pub. L. 98–223, title II, § 213(3), , 98 Stat. 46; Pub. L. 98–369, div. B, title V, § 2501(a), , 98 Stat. 1116; Pub. L. 99–576, title VII, § 701(63), , 100 Stat. 3296; renumbered § 5110 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), , 105 Stat. 238, 239; Pub. L. 102–83, §§ 4(a)(2)(A)(vi), (b)(4)(B), 5(c)(1), , 105 Stat. 403, 405, 406; Pub. L. 103–446, title XII, § 1201(i)(8), , 108 Stat. 4688; Pub. L. 108–454, title III, § 305, , 118 Stat. 3611; Pub. L. 112–154, title V, § 506, , 126 Stat. 1193; Pub. L. 115–55, § 2(l), , 131 Stat. 1110; Pub. L. 116–283, div. A, title IX, § 926(a)(52), , 134 Stat. 3830.)