Saturday, March 14, 2009

Appeals Process M21-1, Part IV Chapter 8

The Appeals Process is covered mostly in Chapter 8 of M21-1, Part IV. So if you are trying to figure out anything regarding the appeal process this is a good place to start.

One item that caught our eye is the 'Certification Worksheet', this seems as though it could give a veteran a lot of information concerning their claim and what the RO did or did not do right, see EXHIBIT B APPEAL CERTIFICATION WORKSHEET




Appeal Certification Worksheet
++++++++++++++++++++++++++++++++++++++++++++

Veterans Benefits Administration M21-1, Part IV
Department of Veterans Affairs Change 192
Washington, DC 20420 February 26, 2004


Veterans Benefits Administration Manual, M21-1, Part IV, “Authorization Procedures,” is changed as follows:

Pages 8-i and 8-ii: Remove these pages and substitute pages 8-i and 8-ii attached.

Pages 8-X-1 and 8-X-3: Remove these pages and substitute pages 8-X-1 and 8-X-3 attached.

Paragraph 8.36 c(2)(b) is updated to show that the Fiduciary Program Staff is 216 not 211.

Paragraph 8.37 a (1) is revised to show that the worksheet in Exhibit B must be completed prior to certification of any appeal to BVA.

Pages 8-E-3 through 8-E-9: Remove these pages and substitute pages 8-E-3 through 8-E-7 attached.

Exhibit B is amended to include specific reference to Duty to Assist (VCAA) and make miscellaneous editorial changes.

Page 12-i: Remove this page and substitute page 12-i attached.

Pages 12-I-13 through Pages 12-I-17: Remove these pages and substitute pages 12-I-13 through 12-I-18 attached.

Paragraph 12.12(a) is revised to show retention of certain veterans’ survivor benefits for surviving spouses remarrying on or after age 57 (Public Law 108-183).

Pages 36-II-3 through 36-II-4: Remove these pages and substitute pages 36-II-3 through 36-II-4.

Paragraph 36.11b is revised to show additional offenses which are considered subversive activities for claims filed after December 16, 2003 (Public Law 108-183).

Paragraphs 36.11a and 36.12 are updated to replace the term District Counsel with Regional Counsel.

Paragraphs 36.11a and 36.14 are updated to replace references to Central Office (213B) and (211C) with Central Office (211B).

By Direction of the Under Secretary for Benefits




Ronald J. Henke, Director
Compensation and Pension Service


Distribution: RPC 2150
FD




February 26, 2004 M21-1, Part IV
Change 192
CHAPTER 8. APPEALS

CONTENTS

PARAGRAPH PAGE

SUBCHAPTER I. OVERVIEW OF APPELLATE PROCESSING

8.01 Jurisdiction 8-I-1
8.02 Review 8-I-1
8.03 Notice of Right to Appeal 8-I-1
8.04 Procedures 8-I-1

SUBCHAPTER II. NOTICE OF DISAGREEMENT (NOD)

8.05 General 8-II-1
8.06 Time Limits on Submission of NOD 8-II-2
8.07 Development or Review Action 8-II-2
8.08 Veterans Appeals Control and Locator System (VACOLS) 8-II-4

SUBCHAPTER III. STATEMENT OF THE CASE (SOC)

8.09 SOC Preparation 8-III-1
8.10 Furnishing SOC to Claimant and Representative 8-III-2
8.11 Matters Not to be Disclosed in the SOC 8-III-3

SUBCHAPTER IV. SUPPLEMENTAL STATEMENT OF THE CASE (SSOC)

8.12 When an SSOC is Prepared 8-IV-1
8.13 Transmitting the SSOC 8-IV-1
8.14 Response to SSOC 8-IV-1

SUBCHAPTER V. SUBSTANTIVE APPEAL

8.15 Furnishing VA Form 9 8-V-1
8.16 Requirement of Substantive Appeal 8-V-2
8.17 Substantive Appeal Procedure 8-V-2
8.18 New Issues Raised on Substantive Appeal 8-V-2
8.19 Hearings 8-V-3

SUBCHAPTER VI. DOCKETING OF APPEALS

8.20 General 8-VI-1
8.21 Receipt of Substantive Appeal 8-VI-1
8.22 The Substantive Appeal 8-VI-1
8.23 Control of Pending Appeals 8-VI-1
8.24 Notification by the BVA 8-VI-1
8.25 Review of the Substantive Appeal 8-VI-2
8.26 Advanced Motion in Emergent Situations 8-VI-2
8.27 Evidence Received Prior to Transfer to BVA 8-VI-2


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M21-1, Part IV February 26, 2004
Change 192

SUBCHAPTER VII. ADMINISTRATIVE APPEALS AND MERGED APPEALS

8.28 Authority 8-VII-1

SUBCHAPTER VIII. VA FORM 646, STATEMENT OF ACCREDITED
REPRESENTATIVE IN APPEALED CASE

8.29 General 8-VIII-1
8.30 Completion of VA Form 646 8-VIII-1
8.31 Action on Failure of Representative to Submit VA Form 646 8-VIII-1
8.32 Review of VA Form 646 8-VIII-1

SUBCHAPTER IX. WITHDRAWAL OF APPEALS

8.33 Appeals Considered Resolved on Basis of Grant of Benefits Sought 8-IX-1
8.34 Withdrawal of Appeal 8-IX-1
8.35 Reactivation of Appeals Subsequent to Withdrawal 8-IX-1

SUBCHAPTER X. CERTIFICATION OF APPEALS

8.36 Responsibility for Certification 8-X-1
8.37 Certification of Appellate Cases to BVA 8-X-2
8.38 Deferred Certification and Transfer of Case to BVA 8-X-3
8.39 Forwarding of Claims Folder to the BVA 8-X-3
8.40 Evidence, Request for Hearing, or Change of Representative Received after
Certification and Transfer 8-X-3

SUBCHAPTER XI. BVA DECISIONS

8.41 Appellate Decisions 8-XI-1
8.42 Effective Dates of BVA Grants of Benefits 8-XI-1

SUBCHAPTER XII. BVA REMANDS

8.43 Remands 8-XII-1
8.44 Special Procedures for BVA Remands 8-XII-1
8.45 Remanded Appeals Resolved at the Regional Office 8-XII-3

SUBCHAPTER XIII. APPEALS AFTER DEATH

8.46 Appeals Pending at Death or Initiated After Death 8-XIII-1

APPENDIX A

A.1 Acronyms and Forms Used in Chapter 8 8-A-1

EXHIBITS

A. Board of Veterans' Appeals Points of Contact 8-E-1
B. Appeal Certification Worksheet 8-E-3
C. BVA Docket Notification Letter 8-E-6
D. Appeal Case Returned to BVA After Remand Notification Letter 8-E-7
8-ii

February 26, 2004 M21-1, Part IV
Change 192

SUBCHAPTER X. CERTIFICATION OF APPEALS

8.36 RESPONSIBILITY FOR CERTIFICATION

a. Appeals From Authorization or Rating Decisions

(1) Authorization Decisions. Certification of substantive appeals from authorization decisions will be made to the BVA by the DRO or VSCM's designee. These include decisions made at the request of other activities or non-VA agencies. Appeals from authorization determinations made under 38 U.S.C. Chapter 35, Survivors and Dependents' Educational Assistance, such as relationship, will be certified by the DRO or VSCM's designee in the office having possession (permanent or temporary) of the claims folder.

(2) Rating Decisions. Certification of substantive appeals from rating decisions will be made to the BVA by the DRO or VSCM's designee. These include appeals made from adverse rating decisions under 38 U.S.C. Chapter 35, Survivors and Dependents' Educational Assistance.

Note: Appeals from determinations by a VA regional office or insurance center will be certified by that activity.

b. Appeals Based on Opinions of Regional Counsel or General Counsel

(1) New and Material Evidence Not Submitted. Except as provided in subparagraph c(2) below, when an appeal is initiated as a result of a determination based on an opinion of the Regional Counsel or General Counsel and no new and material evidence is submitted, the Veterans Service Center will prepare the SOC. The DRO or VSCM's designee will certify the appeal to the BVA.

(2) New and Material Evidence Submitted. If new and material evidence is received in connection with an NOD based on the Regional Counsel's opinion, refer the folder to the Regional Counsel for reconsideration and preparation of the SOC, where applicable. The Veterans Service Center will release the SOC and will also certify the substantive appeal. In any case in which a General Counsel opinion was the basis for the determination, transfer the case to Central Office (211C), citing this paragraph as the reason for transfer. The Compensation and Pension Service will refer the case to the General Counsel for reconsideration and preparation of an SOC, if necessary, and will then return the case to the regional office of jurisdiction. If an appeal is subsequently received, forward the claims folder to the Compensation and Pension Service (211C) for certification of the appeal to the BVA.

c. Incompetent Institutionalized Veterans-Estate Over $1,500

(1) Appeals Certified by the Veterans Service Center. The Veterans Service Center will be responsible for notifying claimants and representatives of determinations and certification of appeals involving the following issues:

(a) The amount of an award to a dependent parent based on recommendation of the Veterans Service Center Manager (VSCM) or designee.

(b) The amount specified by the VSCM or designee to a chief officer of a non-VA institution for the care and maintenance of the veteran.

(c) A disallowance to a parent because dependency is not shown or relationship to the veteran is not established.

Note: In appeals in cases under subparagraphs (a) and (b) above, an NOD with the determination of need of the parent or adequacy of the amount for care and maintenance will be forwarded to the VSCM. The VSCM or his/her designee will furnish the claimant an SOC. If a substantive appeal is filed, the VSCM or his/her designee will complete a memorandum for the file showing the appeal was reviewed and no change in the decision was warranted.
8-X-1

M21-1, Part IV February 26, 2004
Change 192

(2) Appeals Certified by VSCM. The VSCM or his/her designee will be responsible for processing (including preparing the SOC) and certifying appeals by:

(a) A parent determined not to be in need or whose needs are to be met from the veteran's estate or PFOP and no payments or partial payments will be made for support from appropriated funds.

(b) The veteran's fiduciary when it is determined that no amount for the care and maintenance of the veteran in a non-VA hospital is payable from appropriated funds. Note: If a parent is dissatisfied with the VSCM's or his/her designee’s determination as to the amount to be paid from PFOP, forward the case with a statement of all the facts to the Fiduciary Program Staff (216) for an administrative review. Cite this paragraph.

d. Administrative Appeals. No certification is necessary in an administrative appeal unless merged with an appeal by the claimant. See paragraph 8.28.

e. Forfeiture Decisions. See chapter 36.

f. Clothing Allowance. See chapter 25.

g. Automobiles and Adaptive Equipment. See chapter 23.

h. Specially Adapted Housing. See chapter 23.

i. CHAMPVA. See chapter 23

j. Special Allowance-Sec. 1312a. See chapter 33.

k. VAMC Appeals. The DRO or VSCM designee will certify the appeals.

8.37 CERTIFICATION OF APPELLATE CASES TO BVA

a. Completion of VA Form 8

(1) Certify appeals to the BVA on VA Form 8. The responsible official of the office having authority over the issue claimed (par. 8.37) will complete VA Form 8 in its entirety. In the Veterans Service Center this will be the DRO or the VSCM's designee of a senior official. Note: See Exhibit B for a sample certification worksheet to be completed at the time of certification. This worksheet must be completed prior to certification of any appeal to BVA.

(2) Prepare an extra copy of the VA Form 8 to be retained in the Veterans Service Center. Refer to this copy in the event additional evidence or information is received which necessitates a determination of disposition. In addition, retain a copy of the latest rating decision, the latest award letter, and any other pertinent documents which may be needed to adjudicate any new or supplemental claims while the claims folder is temporarily transferred to BVA.

(3) The certification should cite only the issue(s) on appeal. In cases in which service connection has been denied for a number of conditions and the claimant has only appealed service connection for one, certify only that issue.

4) After having been furnished an SOC or SSOC, if the claimant enlarges the appeal to include additional issues, certify all related issues on the appeal to the BVA. See paragraph 8.18.
8-X-2
February 26, 2004 M21-1, Part IV
Change 192

b. Notice to Appellant of Certification. Use FL 1-26 to advise the claimant that the appeal has been certified and transferred to the BVA. Do not use the letter generated by the Benefits Delivery Network (BDN). Prepare copies of the form letter for the representative and other interested persons, if any. Ensure that a copy of that letter is in the claims folder when it is forwarded to the BVA. If a hearing before the BVA in Washington, DC has been requested, add the statement: "You will be advised by the Board concerning your request for a hearing." Note: If the claimant's address is not known, the appeal must still be forwarded to the BVA as receipt of the VA Form 9 places it under BVA jurisdiction. Send the FL 1-26 to the last known address.

c. Processing Certification. After VA Form 8 has been signed by the DRO or VSCM's designee, all correspondence released and VACOLS updated, route the claims folder for transfer to BVA.

8.38 DEFERRED CERTIFICATION AND TRANSFER OF CASE TO BVA

In any case in which final action is delayed to permit the submission of additional evidence, do not certify an appeal until the expiration of the period for submission of the evidence. See paragraph 8.07.

8.39 FORWARDING OF CLAIMS FOLDER TO THE BVA

Consideration of appeals involves studying all evidence available relating to the issue presented. Forward to the BVA the claims folder and all other records relating to the issue on appeal in the custody of the originating office.

8.40 EVIDENCE, REQUEST FOR HEARING, OR CHANGE OF REPRESENTATIVE RECEIVED AFTER CERTIFICATION AND TRANSFER

a. Evidence Received After Transfer of Case to the BVA

(1) If additional evidence is received after the claims folder has been transferred, forward it to the BVA if it has a direct bearing on an issue before the BVA. Obtain a waiver of consideration by the regional office from the claimant. Review the copy of the VA Form 8 that has been retained in the Veterans Service Center to determine the relationship of the evidence to the issue under BVA review. While there is a time limit for submission of such evidence, the BVA will determine if it was timely received. See 38 CFR 20.1304.

(2) If the evidence does not relate to the issue before the BVA but action is required, information needed from the claims file may be obtained by calling or faxing the appropriate BVA team or by requesting temporary return of the claims folder as stated in paragraph 5. See exhibit A for BVA points of contact.

(3) If the return of the claims folder is essential for adjudication of a claim unrelated to the appeal issue, request return of the claims folder from BVA. Prepare a request which includes the appellant's name, claim number and reason for requesting the claims folder. The request should be directed to the Office of the Director of BVA Administrative Service (014). The request(s) can be sent by FAX or electronic mail (BVA RO MAIL). The FAX number is (202) 565-6364. The Director's office will determine whether the claims folder may be returned to the regional office. If the BVA cannot return the folder immediately, written notification will be sent with the anticipated date of return.

(4) Despite the fact the claimant's folder is before the BVA, any newly received unrelated claim must be placed under control and must be acted on as soon as possible. The Court of Appeals for Veterans Claims has stated that undue delay on new claims will not be tolerated. (See Ebert v. Brown, 4 Vet. App. 434 (1993).)

b. Change of Address Received After Certification or Transfer of Case to the BVA. If a change of address is received after certification or transfer to BVA, refer the claim for VACOLS input. 8-X-3


February 26, 2004 M21-1, Part IV
Change 192
Exhibits
EXHIBIT B
APPEAL CERTIFICATION WORKSHEET


Name of Veteran:__________________________________ Claim #: _________________
Name of Appellant (if other than veteran):________________________________________
Representative: _____________________________________________________________
Date of Decision on Appeal: ___________________Date of Notification: ______________
Issue(s) on Appeal: __________________________________________________________
__________________________________________________________________________

Notice of DisagreementNOTICE OF DISAGREEMENT Yes No N/A
Was the NOD submitted timely?
Were the issues clearly defined?
Were new issues raised?
Was the DRO election letter sent?
Was the DRO process elected?

Evidence/Duty to Assist and Inform Yes No N/A
Did we send the Duty to Assist/Inform (VCAA) letter? Did we inform appellant of the specific information/evidence needed to substantiate the claim? Did we inform appellant of the information/evidence we have and/or will obtain and the information/evidence s/he must submit?
Is all service verified?
Do we have complete SMRs?
Have we obtained all identified VA treatment records?
Have we obtained or received a negative response for ALL identified/pertinent records in our constructive custody?
Have we obtained all identified records not in our constructive custody or informed the appellant of our inability to obtain them and given him/her the appropriate time to submit this evidence?
Did we complete proper development for the specific benefit(s) claimed?
Was a nexus opinion requested if necessary?





8-E-3

M21-1, Part IV February 26, 2004
Change 192
Exhibits

Examination ReportsTICE OF DISAGREEMENT Yes No N/A
Were all issues addressed on examination report?
Did examiner(s) review claims folder?
Did the examination report provide information required by the Clinician’s Guide and Rating Schedule (ROM, x-rays, lab tests)?
Was a clear diagnosis for condition(s) provided?
If conflicting or multiple diagnoses exist, did examiner explain basis of current diagnosis?
Were all specific examination instructions/requests fulfilled?
Were all requested medical opinions (with rationale) provided?
Did the examiner address functional loss due to pain (if applicable)?
For psychiatric conditions, was a GAF score provided?
Did opinions regarding secondary service connection address causation and aggravation?
If the examination report was insufficient for rating purposes, was it returned for correction and satisfactory information provided?
If veteran failed to report for exam, is documentation of record?

SOC/SSOC/DecisionNOCE OF DISAGREEMENT Yes No N/A
Does the decision address all issues on appeal?
Does the decision clearly explain the basis for the denial of any benefit sought (i.e. are the reasons and bases adequate)?
Was all pertinent evidence discussed, to include the appellant’s contentions?
If applicable, was relevant testimony from a hearing discussed?
Did we apply the benefit of the doubt rule?
Was any alleged error addressed?
Did we apply all pertinent new legislation, regulations, and Court precedent decisions (e.g., VCAA, changes to Rating Schedule)?
Did we provide all pertinent laws/regulations?

NOTE: If an appeal is received on a new issue, the new appeal must be processed concurrently
with the pending appeal (an SOC must be sent prior to certification) to avoid a Manlincon remand.

Substantive Appeal (Form 9) Yes No N/A
Was VA Form 9 or equivalent filed timely and entered into VACOLS?
Was a BVA hearing requested and the case placed on the Travel Board or videoconference docket?
Was a DRO or other local hearing requested?
Was the DRO or other local hearing held (and transcript in file) or otherwise resolved through cancellation or failure to report?
Was additional evidence indicated or provided?
Was additional evidence properly developed and considered?
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February 26, 2004 M21-1, Part IV
Change 192
Exhibits
VA Form 646 (for VSOs, not Private Attorneys) Yes No N/A
Did appellant’s representative submit VA Form 646?
Were new issues raised?
Were new issues adequately addressed?
Was a subsequent 646 completed when necessary?

Decision NotificationNOCE OF DISAGREEMENT Yes No N/A
Did we comply with all due process requirements?
Was appellant notified of all decisions?
Was appellant notified of the 90-day rule? (38 CFR 20.1304)
Was appellant’s representative kept fully informed?
Was decision notification sent to the last address of record?

Were any deficiencies noted in this review process? If so, identify. ______________________________

__________________________________________________________________________________________

__________________________________________________________________________________________

What actions are needed to perfect appeal? ____________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

Were any issues on appeal withdrawn? If so, identify. _____________________________________________





Have all new issues (non-appeal) raised during the appeal process been properly adjudicated or
addressed (temporary file created with needed information)? Yes __________ No ___________


Comments: __________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________


Signature/Title of Reviewer: ________________________________ Date: ______________________


Approved by: ____________________________________________ Date: ______________________

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M21-1, Part IV February 26, 2004
Change 192
Exhibits

EXHIBIT C

BVA DOCKET NOTIFICATION LETTER

Board of Veterans' Appeals
Department of Veterans Affairs
Washington, DC 20420

In Reply Refer to: (0141E)



Dear Appellant:

The Board received notice of your appeal (VA Form 9). The law (38 U.S.C. 7107) requires that we consider appeals in the order in which we receive them. Right now, we are considering appeals received in [insert date].

The Board does not yet have claims folder or any other records having to do with your appeal. In view of the time it takes us to process an appeal, we believe it is better for you to have your claims folder kept at the local VA office where you filed your claim until we are ready to review it. That way, you have access to your records, and local VA officials will be able to act on any other claim you may have while your appeal is awaiting review by the Board.

When the Board is ready to review your appeal, we will request your records from the local VA office. At the time your records are forwarded to the Board, the local VA office will send you a letter notifying you of the transfer and informing you that you have 90 days to add evidence to your appeal, to request a hearing or to select or change a representative.

You have the right to appear in person for a hearing before a member of the Board, either at your local VA office or at the Board's office in Washington, DC. In addition to this "Board hearing," you also have the right to appear in person for a hearing before a local VA hearing officer. If you want a "local office hearing." you should contact your local VA office.

Until we receive your claims folder at our office in Washington, DC, the Board can only provide very general information about your appeal. Our telephone number is (202) 565-5436. Until then, your best source for information about the status of your appeal is your local VA office or your representative.

We have enclosed two pamphlets. The thin pamphlet contains the customer service standards we have pledged to meet. Please make a note that the phone number printed on the back of the thin pamphlet has been changed to (202) 565-5436. The other pamphlet provides answers to the most commonly asked questions about how the appeal system works. We hope you find these pamphlets informative and helpful.

Sincerely yours,




Director, Administrative Service
By Direction of the Chairman
Enclosures (2)
8-E-6
February 26, 2004 M21-1, Part IV
Change 192
Exhibits

EXHIBIT D

APPEAL CASE RETURNED TO BVA
AFTER REMAND NOTIFICATION LETTER

Department of Veterans Affairs [DATE] [File Number]
[Designation of VA Office [Veteran's Name]
and Location]



Dear Appellant:


Your appeal is being returned to the Board of Veterans' Appeals for disposition. This means that your records are being transferred to Washington, DC, so that the Board can reach a decision on your appeal.

Appeals are considered by the Board as promptly as possible, in docket order. Your appeal retains the docket number that it received when it was certified to the Board. Once an appeal has reached the Board, it usually takes several months to review it. The time it takes to complete the appellate review process will vary depending upon the current backlog at the Board.

Any new request for a hearing or to appoint or change representatives or any additional evidence should not be submitted to this office, but should be mailed directly to the Board of Veterans' Appeals (014), 810 Vermont Avenue, NW, Washington, DC 20420. The request or the additional evidence should be accompanied by a statement of the request or the evidence after the expiration of the 90-day period following the notice of the initial certification of your appeal to the Board. Please see 38 CFR 20.1304 for further details concerning this requirement.

As soon as the decision is made, the Board will notify you.


Sincerely yours,

















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M21-1, Part IV February 26, 2004
Change 192



CHAPTER 12. MARITAL AND CHILD RELATIONSHIPS

CONTENTS

PARAGRAPH PAGE

SUBCHAPTER I. MARITAL RELATIONSHIP

12.01 General 12-I-1
12.02 Jurisdiction Over Determinations 12-I-2
12.03 Marital Relationship 12-I-2
12.04 Common Law Marriages 12-I-5
12.05 Tribal Marriages 12-I-8
12.06 Proxy Marriages 12-I-9
12.07 Transsexual Marriages 12-I-9
12.08 Establishing a Valid Marriage in Death Cases 12-I-9
12.09 Continuous Cohabitation (38 CFR 3.53) 12-I-10
12.10 Deemed Valid Marriage (38 CFR 3.52) 12-I-10
12.11 Marriage Dates (38 CFR 3.54) 12-I-13
12.12 Effect of Surviving Spouse's Remarriage 12-I-14
12.13 Conduct Warranting Inference of Remarriage of Surviving Spouse (38 CFR 3.50) 12-I-15
12.14 Termination of Surviving Spouse's Remarriage 12-I-16

SUBCHAPTER II. CHILDREN

12.15 Child Relationship (38 CFR 3.57) 12-II-1
12.16 Adopted Child 12-II-2
12.17 Stepchild (38 CFR 3.57) 12-II-5
12.18 Effect of Child's Marriage 12-II-7
12.19 Termination of Child's Marriage 12-II-8

SUBCHAPTER III. VERIFICATION OF DEPENDENTS OF COMPENSATION
RECIPIENTS AND OF UNREMARRIED STATUS OF DIC RECIPIENTS

12.20 General 12-III-1
12.21 Initial Screening 12-III-1
12.22 Reported Decrease in Dependents or Remarriage 12-III-2
12.23 New or Additional Dependents Shown 12-III-2
12.24 Verification Request Not Returned 12-III-2
12.25 Returned Mail Erroneous Address 12-III-3
12.26 BDN Update 12-III-3
12.27 Cases Located in Another Jurisdiction or at RMC 12-III-4
12.28 End Product Credit 12-III-4
12.29 Reporting 12-III-4







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M21-1, Part IV February 26, 2004
Change 192

1993, to submit evidence showing that income was within the limit for the income year extending from July 1, 1990, to July 1, 1991.

h. Administrative Decisions. When the "deemed valid" question is resolved (favorably or unfavorably), prepare a two-signature administrative decision using the format in paragraph 11.30. The Veterans Service Center Manager may delegate authority to approve the decision to supervisors not lower than coaches.

12.11 MARRIAGE DATES (38 CFR 3.54)

a. General. The marriage dates requirement of 38 CFR 3.54 states that surviving spouse benefits cannot be paid unless the claimant was married to the veteran for at least 1 year immediately preceding the veteran's death, or a child was born of the marriage or the marriage occurred before a certain "delimiting date." The marriage dates requirement is like the continuous cohabitation requirement of 38 CFR 3.53 in that it might cause VA to disallow a claim from a veteran's legal widow under state law. The marriage dates requirement varies with the benefit involved and is a consideration only when the marriage occurred after the veteran’s separation from service. Marriage dates are not an issue if the marriage occurred before or during the veteran’s service.

b. Pension Claimants. Death pension may be paid to a surviving spouse who was married to the veteran:

(1) One year or more before the veteran's death or

(2) For any period of time if a child was born of the marriage or was born to them before the marriage or

(3) Before the following delimiting dates:

(a) January 1, 1957, if pension eligibility is based on WW II service of the veteran.

(b) February 1, 1965, if pension eligibility is based on the veteran's Korean conflict service.

(c) May 8, 1985, if pension eligibility is based on the veteran's Vietnam era service.

(d) January 1, 2001, if pension eligibility is based on the veteran's Persian Gulf War service.

(e) See 38 CFR 3.54 if pension eligibility is based on periods prior to WW II.

NOTE: If the surviving spouse claimant can qualify in any one of three ways (marriage for 1 year, child born or marriage before applicable delimiting date), the marriage dates requirement of 38 CFR 3.54 is satisfied.

EXAMPLE: A surviving spouse files a claim for pension on October 28, 1990. The veteran had honorable service during the period June 3, 1969, to June 2, 1973 (Vietnam era). The claimant married the veteran on August 7, 1973. The veteran died on June 13, 1974. There were no children born of the marriage. Since the claimant and the veteran were not married for a year and they had no children, the claim would be disallowed were it not for the fact that the marriage occurred before May 8, 1985. Since the veteran had Vietnam era service and the marriage occurred before the applicable delimiting date for Vietnam era service (May 8, 1985), the claimant meets the marriage dates requirement of 38 CFR 3.54.

c. DIC Claimants. The marriage dates requirement for a DIC claimant differs depending on whether the claimant is entitled to DIC under 38 U.S.C. 1310(a) (service-connected death) or 38 U.S.C. 1318 (veteran rated totally disabled for 10 years prior to death).





12-I-13


February 26, 2004 M21-1, Part IV
Change 192

(1) DIC entitlement under 38 U.S.C. 1310(a) may be paid to the surviving spouse who was married to the veteran:

(a) For 1 year or more or

b) For any period of time if a child was born of the marriage or was born to them before the marriage or

(c) Before the expiration of 15 years after the termination of the period of service during which the injury or disease causing the death of the veteran was incurred or aggravated.

(2) DIC entitlement under 38 U.S.C. 1318 may be paid to the surviving spouse who was married to the veteran:

(a) For 1 year or more or

(b) For any period of time if a child was born of the marriage or was born to them before the marriage.

NOTE: The only difference in terms of the marriage dates requirement between DIC claims based on service-connected death and those based on the veteran having been totally disabled for 10 years prior to death is that only the former can qualify based on the veteran's death having occurred before the expiration of 15 years after the termination of the period of service during which the injury or disease causing the death of the veteran was incurred or aggravated.

d. Child Born of the Marriage. The term "child born of the marriage" for purposes of the 38 CFR 3.54 marriage dates requirement includes a fetus advanced to the point of gestation required to constitute a birth under the law of the jurisdiction in which the fetus was delivered. If this issue arises, it may be necessary to request a legal opinion. See paragraph 12.02.

e. More than One Marriage to Veteran. The effect of multiple marriages is different for the 1-year duration of marriage requirement and the date of marriage requirement.

(1) Multiple periods of marriage cannot be added together to meet the 1-year marriage requirement. In order to satisfy the 1-year marriage requirement, the veteran and spouse must have been married for a year immediately prior to the veteran's death.

(2) If a surviving spouse has been married to a veteran more than once, use the date of the original marriage in determining if the date of marriage requirement (delimiting date in pension cases and 15 years after qualifying service in DIC cases) was met. See 38 U.S.C. 103(b).

EXAMPLE: The veteran had Vietnam-era service. The claimant married the veteran on March 14, 1985, and was divorced from the veteran on February 13, 1986. They remarried on September 29, 1989, and the veteran died on August 5, 1990. The surviving spouse files for pension. The 1-year marriage requirement is not met because the two periods of less than a year cannot be added together. However, the claimant does satisfy the marriage dates requirement of 38 CFR 3.54 because the original marriage occurred before the delimiting date for Vietnam-era service (May 8, 1985).

12.12 EFFECT OF SURVIVING SPOUSE'S REMARRIAGE

a. General. In order to qualify as a surviving spouse for VA purposes, a person must be unmarried. See 38 CFR 3.50. Therefore, a surviving spouse who remarries is no longer eligible to receive VA benefits.

12-I-14


M21-1, Part IV February 26, 2004
Change 192

Exceptions: Under Public Law 107-330, effective February 4, 2003, a surviving spouse who remarries after age 55 retains CHAMPVA eligibility. (See 23.14a.)

Under Public Law 108-183, effective January 1, 2004, a surviving spouse who remarries on or after his or her 57th birthday remains eligible for DIC, home loan, and educational benefits. Surviving spouses who remarried after turning age 57 prior to the enactment of the Act have until December 16, 2004 to apply for reinstatement of benefits. Survivors who remarried after reaching the age of 57 and whose claims for restored benefits are received on or after December 16, 2004, are not entitled to restoration of benefits. Section 101(d) prohibits retroactive benefits; no benefit may be paid to any person by reason of the amendment for any period prior to the effective date, January 1, 2004.

For those survivors whose benefits were previously terminated due to remarriage on or after the age of 57, a claim for restored benefits must be submitted in writing. When such a claim is received, provide the survivor with VA Form 21-686c for completion. Also ask the survivor if his or her spouse is a veteran. If the spouse is a veteran, request that the survivor indicate the spouse’s social security number or claim number and identify whether the spouse is receiving VA benefits. Cross reference folders as appropriate.

When a current DIC recipient notifies VA of his or her remarriage, again provide the beneficiary with VA Form 21-686c for completion. Also ask the survivor if his or her spouse is a veteran. If the spouse is a veteran, request that the survivor indicate the spouse’s social security number or claim number and identify whether the spouse is receiving VA benefits. Cross reference folders as appropriate.

b. Effective date to stop award -- 38 CFR 3.500(n). If a surviving spouse remarries, discontinue payments effective the first of the month during which the marriage occurred.

c. Award Procedures when Surviving Spouse Remarries. See paragraph 26.07.

12.13 CONDUCT WARRANTING INFERENCE OF REMARRIAGE OF SURVIVING SPOUSE (38 CFR 3.50)

a. General. In order to receive death benefits as the surviving spouse of a deceased veteran, the claimant generally must be unmarried (38 CFR 3.50(b)(2)) (See exceptions under paragraph 12.12a). However, 38 CFR 3.50 imposes the additional requirement that the claimant not be living with a person of the opposite sex and holding himself or herself out publicly as the spouse of that person. If the claimant is living with a person of the opposite sex and is holding himself or herself out as the spouse of that person, there is held to be an inference of remarriage. Payment of death benefits is then barred under 38 CFR 3.50(b). (But see paragraph f below.)

b. Reputation in General Community Not Required. It is not necessary to establish that the claimant and the claimant's roommate were known generally throughout the community as husband and wife in order to invoke an inference of remarriage under 38 CFR 3.50(b). It is sufficient to establish that there was a single instance of holding out as husband and wife.

c. Common Law Marriage Distinguished. In a state which recognizes common law marriages (paragraph 12.04), conduct which would warrant an inference of remarriage under 38 CFR 3.50(b) will probably also suffice to establish a common law marriage under state law. The inference of remarriage concept in 38 CFR 3.50(b) enables VA to deny payment of surviving spouse benefits in states where the claimant is living as the spouse of another person but is not legally married because the state does not recognize common law marriages. Also, it is possible to infer remarriage

12-I-15


February 26, 2004 M21-1, Part IV
Change 192

for VA purposes even though a legal marriage (common law or otherwise) might be impossible because of the existence of an impediment to marriage. For example, a claimant might be living with a married person and holding himself or herself out as the spouse of that person. A common law marriage cannot be established because the other party is already married. Benefits could still be barred under 38 CFR 3.50(b).

d. Holding Out Requirement. Before benefits can be denied based on an inference of remarriage, it must be established that the claimant lived with another person AND held himself or herself out openly to the public as the spouse of the other person. This means that the claimant and a person of the opposite sex can live together openly without jeopardizing the claimant's entitlement to VA benefits as long as they make no representations to the effect that they are married.

e. Conduct Terminated before Entitlement Date. Conduct warranting an inference of remarriage does not constitute a bar to benefits if the conduct terminated before the date of entitlement to VA benefits. However, if the conduct caused a common law marriage to come into existence, VA benefits cannot be paid until the marriage is dissolved. See paragraph 12.04a(2).

f. DIC Cases On or After October 1, 1998. The Veterans Benefits Act of 1998 provides that effective October 1, 1998, the bar to granting DIC benefits does not apply if the surviving spouse ceases living with another person and holding himself or herself out openly to the public as that person’s spouse. Resumption of benefits can only be made from October 1, 1998, even if the cessation of the relationship occurred prior to this date. The provisions of 38 CFR 3.31 apply to the commencement of the period of payment and 38 CFR 3.114(a) applies as the Veterans Benefits Act of 1998 is considered liberalizing legislation.

g. Inference of Remarriage Development See part III, paragraph 6.14f.

h. Administrative Decisions. If it is determined that a surviving spouse has engaged in conduct warranting an inference of remarriage, prepare a three-signature administrative decision using the format in paragraph 11.30. The Veterans Service Center Manager may delegate authority to approve the decision to supervisors not lower than section chiefs.

i. Award Adjustment. If the surviving spouse is in receipt of death pension or DIC, terminate the award under reason code 15 effective the first day of the month in which the relationship began. See 38 CFR 3.500(n)(3).

12.14 TERMINATION OF SURVIVING SPOUSE'S REMARRIAGE

a. Termination before November 1, 1990. Before November 1, 1990, and the passage of Public Law 101-508, a surviving spouse who remarried or engaged in conduct warranting an inference of remarriage (paragraph 12.13) could establish surviving spouse status if the subsequent marriage was terminated, declared void or, in the case of an inferred marriage, the parties stopped living together.

b. Termination after October 31, 1990

(1) Public Law 101-508 provided that a surviving spouse claimant whose remarriage has been terminated by divorce, death or termination of conduct warranting an inference of remarriage can be recognized as the veteran's surviving spouse ONLY IF the termination of the remarriage took place before November 1, 1990. (But see paragraph f below.)

(2) Public Law 102-86 amended the provision to prohibit reinstatement based upon date of remarriage

12-I-16


February 26, 2004 M21-1, Part IV
Change 192

or inference of remarriage instead of date of claim. Generally, reinstatement is barred if the remarriage or inference of remarriage occurs after October 31, 1990. Public Law 102-568 amended this provision to exclude its application to any formerly remarried surviving spouse for whom a legal proceeding to terminate an existing marital relationship was started before November 1, 1990, if that proceeding directly resulted in the termination of the marriage. Supporting evidence must be submitted showing that the surviving spouse actually filed for divorce with a court prior to November 1, 1990.

(3) A remarried surviving spouse whose subsequent marriage is annulled or declared void can reestablish entitlement as a surviving spouse.

c. Development for Termination of Marital Relationship. See part III, paragraph 6.15.

d. Remarriage Alleged to Be Void

(1) If the claimant alleges that a marriage barring entitlement to VA benefits is void, fully develop the facts surrounding the alleged void marriage. After complete development (including, if possible, the certified statements of the parties to the "marriage"), submit the case to District Counsel for a legal opinion as to whether or not the marriage is void. See paragraph 12.02c. The District Counsel opinion determines the issue. No administrative decision is required.

(2) If the District Counsel determines that the remarriage is void, entitlement can be established effective the date cohabitation ceased or the date of claim, whichever is later. See 38 CFR 3.400(v)(1).

e. Annulment Decree Issued

(1) If the surviving spouse alleges that the remarriage has been annulled, request a copy of the court decree of annulment. An annulment decree which appears regular on its face will be accepted as evidence of termination of the remarriage in the absence of any indication of fraud in obtaining the annulment. An administrative decision is not required.

(2) If there is evidence of fraud, initiate full development. As part of this development, request copies of the petition to the court for annulment and the answer. Also, request a transcript of the testimony.

(3) Questions as to whether or not the decree was obtained through fraud are mixed questions of fact and law and, after development, must be submitted to District Counsel for an opinion as to the legal effect.

(4) If the District Counsel opinion indicates that fraud was involved in obtaining an annulment, prepare a three-signature administrative decision using the format in paragraph 11.30. The issue is "marital status of claimant." The Veterans Service Center Manager may delegate authority to approve the decision to supervisors not lower than section chiefs. A finding that an annulment was fraudulently obtained renders it invalid for VA purposes.

(5) When a judicial decree of annulment is accepted as proof of termination of remarriage, the effective date of an award of benefits is the date the decree became final if the claim is filed within 1 year of that date. In all other cases, entitlement is based on date of claim. See 38 CFR 3.400(v)(2).

f. Reinstatement of DIC Eligibility after September 30, 1998

(1) The Veterans Benefits Act of 1998 (section 8207 of Pub. L. 105-178) made it possible for a surviving spouse to re-establish DIC entitlement after termination of remarriage. Therefore, eligibility for DIC (but not pension) is established in any case in which the remarriage of the surviving spouse is terminated by death, divorce, or annulment.

12-I-17


February 26, 2004 M21-1, Part IV
Change 192

(2) The effective date of section 8207 is the date of enactment, June 9, 1998. However, taking into consideration 38 CFR 3.31 and 38 CFR 3.114(a), awards for restored DIC entitlement may be resumed with an effective payment date as early as October 1, 1998. However, in no case can restored DIC be paid with an effective payment date earlier than October 1, 1998. The term “effective payment date,” means the date shown on the BDN award screen as the date benefits resume.

(3) If a claim is filed within 1 year after the date of death, or within 1 year of the date the divorce became final, the effective payment date is the first day of the month following the occurrence of the event which ended the remarriage but not earlier than October 1, 1998.

(4) The provisions of 38 CFR 3.114(a) apply if the surviving spouse is otherwise eligible for DIC and the remarriage had already terminated as of the effective date of the liberalizing provision of law, June 9, 1998. This means a surviving spouse can have benefits restored with an effective payment date of October 1, 1998, or an effective date 1 year prior to the date of reopened claim (subject to 38 CFR 3.31), whichever is later.

EXAMPLE 1: DIC is terminated February 1, 1992, for a surviving spouse based on her remarriage. The second spouse dies May 7, 1997. Surviving spouse files a claim received by RO on November 15, 1998. Effective payment date of restored DIC award is October 1, 1998. (38 CFR 3.114(a) applies here because the surviving spouse met the requirements of the liberalizing legislation on the date of enactment-June 9, 1998.)

EXAMPLE 2: DIC is terminated July 1, 1993, based on the surviving spouse’s remarriage. The remarriage ends in a divorce which becomes final November 5, 1998. A claim for restored DIC entitlement is received January 15, 1999. Effective payment date of restored DIC award is December 1, 1998. (The effective date would be November 5, 1998, in accordance with 38 U.S.C. 5110(l) and subject to 38 CFR 3.31. Therefore, payment would be made from the first day of the month following the date the divorce became final, i.e., December 1, 1998.)

EXAMPLE 3: DIC ends August 1, 1994, due to the surviving spouse’s remarriage. Remarriage ends due to the second spouse’s death on July 17, 1998. Claim for restored DIC received November 27, 1998. Effective payment date of restored DIC benefits is October 1, 1998 (in accordance with 38 U.S.C. 5110(l) and the earliest date permitted under section 8207(b) of Pub. L. 105-178).

g. Reinstatement of Eligibility for CHAMPVA, Chapter 35 and Loan Guaranty Benefits after November 30, 1999. Public Law 106-117, effective November 30, 1999, now permits entitlement to the following benefits for a surviving spouse whose remarriage has been terminated by death, divorce, or annulment, or cessation of an inferred remarriage:

· medical care under the VA Civilian Health and Medical Program (CHAMPVA),
· Dependents’ Educational Assistance under 38 U.S.C. Chapter 35, and
· loan guaranty benefits under 38 U.S.C. Chapter 37.


Prior to this date, VAOPGCPREC 13-98 held that a surviving spouse who regained DIC eligibility under section 8207 of Public Law 105-178, effective October 1, 1998, did not regain eligibility for any of the above. See M21-1, Part III, 6.15 for evidentiary requirements. If a claim is filed within 1 year of the date of death or within 1 year of the date the termination of remarriage became final, the date of entitlement is the first day of the month following the occurrence of the event which ended the remarriage, but no earlier than December 1, 1999.

12-I-18
February 26, 2004 M21-1, Part IV
Change 192

36.11 FORFEITURE BASED ON SUBVERSIVE ACTIVITIES

a. The Attorney General, Secretary of Defense or Secretary of Treasury will notify VA when a person is indicted or convicted of subversive activity. After notification of an indictment, suspend payments pending disposition of the criminal proceedings. After notification of a conviction, the Regional Counsel will forward the case to the Compensation and Pension Service (211B) for automatic forfeiture.

b. No other person will be entitled to receive any benefits on account of the individual convicted of subversive activities. The following offenses are added to the offenses listed in 38 CFR 3.903:

· prohibited activities with respect to biological weapons;
· prohibited activities with respect to chemical weapons;
· prohibited transactions involving nuclear materials;
· genocide;
· use of certain weapons of mass destruction; and,
· acts of terrorism transcending national boundaries.

The above supplemental list of offenses applies to claims filed after December 16, 2003 (Public Law 108-183).

36.12 NONFORFEITURE DETERMINATIONS

If a case is returned from Central Office and information is received from the Regional Counsel that no forfeiture was declared or notice is received from the Regional Counsel that the claimant was acquitted of subversive activities, resume payments from the date of last payment, if otherwise in order, under the provisions of 38 CFR 3.669.

36.13 JURISDICTION OF CLAIMS FOLDER IN FORFEITURE CASES

When forfeiture is invoked, the Compensation and Pension Service will refer those cases which are not in a terminated status to WRO for termination under 38 CFR 3.669. The Manila regional office will terminate cases under its jurisdiction. Once terminated, return the claims folder to Central Office. Central Office will maintain all folders until expiration of the appeal period or until an appellate decision is rendered. At the end of the appeal period or after an appellate decision is rendered, Central Office will forward the claims folder to the regional office of jurisdiction. Maintain the folder in locked files.

36.14 APPEALS FROM FORFEITURE DECISIONS

When notice of disagreement is timely filed, forward the notice of disagreement and any material submitted with it to Central Office, Compensation and Pension Service (211B), for preparation of the statement of the case.

36.15 APPORTIONMENTS

a. Forfeiture Invoked Before September 2, 1959. Apportionments may continue in these cases as long as the dependents remain entitled. The amount payable to the dependents is the lesser of the applicable death benefit payable (DIC if the veteran was receiving compensation, or death pension if the veteran was receiving nonservice-connected disability pension) or the amount of compensation or pension being paid the veteran at the time of the forfeiture.


36-II-3

M21-1, Part IV February 26, 2004
Change 192

NOTE: No benefits are payable to or for any person who participated in the treasonable act causing the forfeiture.

b. Forfeiture Invoked After September 1, 1959. If forfeiture was declared after September 1, 1959, do not make an apportionment to any dependents.

36.16 SUBSEQUENT SERVICE

Forfeiture of benefits based on one period of service does not affect entitlement to benefits based on a period of service beginning after the offense causing the forfeiture. Process a claim of this type based on the nonforfeiture period of service only (38 CFR 3.900(a)).

36.17 PRESIDENTIAL PARDON

The Department of Justice no longer accepts and processes petitions for pardon from applicants whose benefits have been forfeited administratively.























36-II-4

Athletic Concussions Produce Brain Damage

Concussion, whatever incurred, either in combat or on an athletic field, brain injury or damage results. It is with this comparison that I post this article on concussion sustained by athletes.


http://www.cnn.com/2009/HEALTH/01/26/athlete.brains/index.html
Dead athletes' brains show damage from concussions

By Stephanie Smith
CNN Medical Producer

(CNN) -- For years after his NFL career ended, Ted Johnson could barely muster the energy to leave his house.
The brain of a 45-year-old football player with chronic traumatic encephalopathy shows more brown tangles.

In healthy brain tissue, virtually no protein tangles, which show up as brown spots, are visible.

"I'd [leave to] go see my kids for maybe 15 minutes," said Johnson. "Then I would go back home and close the curtains, turn the lights off and I'd stay in bed. That was my routine for two years.

"Those were bad days."

These days, the former linebacker is less likely to recount the hundreds of tackles, scores of quarterback sacks or the three Super Bowl rings he earned as a linebacker for the New England Patriots. He is more likely to talk about suffering more than 100 concussions.

"I can definitely point to 2002 when I got back-to-back concussions. That's where the problems started," said Johnson, who retired after those two concussions. "The depression, the sleep disorders and the mental fatigue."

Until recently, the best medical definition for concussion was a jarring blow to the head that temporarily stunned the senses, occasionally leading to unconsciousness. It has been considered an invisible injury, impossible to test -- no MRI, no CT scan can detect it.

But today, using tissue from retired NFL athletes culled posthumously, the Center for the Study of Traumatic Encephalopathy (CSTE), at the Boston University School of Medicine, is shedding light on what concussions look like in the brain. The findings are stunning. Far from innocuous, invisible injuries, concussions confer tremendous brain damage. That damage has a name: chronic traumatic encephalopathy (CTE).
CNN American Morning
Watch more on concussions and the brain Wednesday
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On Tuesday afternoon, researchers at the CSTE released a study about the sixth documented case of CTE in former NFL player Tom McHale, who died in 2008 at the age of 45, and the youngest case to date, an 18-year-old multi-sport athlete who suffered multiple concussions.

While CTE in an ex-NFL player's brain may have been expected, the beginnings of brain damage in an 18-year-old brain was a "shocking" finding, according to Dr. Ann McKee, a neuropathologist at the Veterans Administration Hospital in Bedford, Massachusetts, and co-director of the CSTE.

"We think this is how chronic traumatic encephalopathy starts," said McKee. "This is speculation, but I think we can assume that this would have continued to expand."

CTE has thus far been found in the brains of six out of six former NFL players.

"What's been surprising is that it's so extensive," said McKee. "It's throughout the brain, not just on the superficial aspects of the brain, but it's deep inside."

CSTE studies reveal brown tangles flecked throughout the brain tissue of former NFL players who died young -- some as early as their 30s or 40s.

McKee, who also studies Alzheimer's disease, says the tangles closely resemble what might be found in the brain of an 80-year-old with dementia.

"I knew what traumatic brain disease looked like in the very end stages, in the most severe cases," said McKee. "To see the kind of changes we're seeing in 45-year-olds is basically unheard of."

The damage affects the parts of the brain that control emotion, rage, hypersexuality, even breathing, and recent studies find that CTE is a progressive disease that eventually kills brain cells.

Chris Nowinski knows well the impact of concussions. He was a football star at Harvard before wrestling professionally with World Wrestling Entertainment.
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In one moment, his dreams of a long career wrestling were dashed by a kick to his chin. That kick, which caused Nowinski to black out and effectively ended his career, capped a career riddled with concussions.

"My world changed," said Nowinski. "I had depression. I had memory problems. My head hurt for five years."

Nowinski began searching for studies, and what he found startled him.

"I realized when I was visiting a lot of doctors, they weren't giving me very good answers about what was wrong with my head," said Nowinski. "I read [every study I could find] and I realized there was a ton of evidence showing concussions lead to depression, and multiple concussion can lead to Alzheimer's."

Nowinski decided further study was needed, so he founded the Sports Legacy Institute along with Dr. Robert Cantu, a neurosurgeon and the co-director of the CSTE. The project solicits for study the brains of ex-athletes who suffered multiple concussions.

Once a family agrees to donate the brain, it is delivered to scientists at the CSTE to look for signs of damage.

So far, the evidence of CTE is compelling.

The Center for the Study of Traumatic Encephalopathy, along with other research institutions, has now identified traumatic encephalopathy in the brains of late NFL football players John Grimsley, Mike Webster, Andre Waters, Justin Strzelczyk and Terry Long, in addition to McHale.

Grimsley died of an accidental gunshot wound to the chest. Webster, Long and Strzelczyk all died after long bouts of depression, while Waters committed suicide in 2006 at age 44. McHale was found dead last year of an apparent drug overdose.

"Guys were dying," said Nowinski. "The fact of the matter was guys were dying because they played sports 10 or 20 years before."

So far, around 100 athletes have consented to have their brains studied after they die.

Ted Johnson was one of the first to sign up. He said he believes that concussions he suffered while playing football explain the anger, depression and throbbing headaches that occasionally still plague him.

Johnson said he played through concussions because he, like many other NFL athletes, did not understand the consequences. He has publicly criticized the NFL for not protecting players like him.

"They don't want you to know," said Johnson. "It's not like when you get into the NFL there's a handout that says 'These are the effects of multiple concussions so beware.' "
Health Library

* MayoClinic.com: Concussion
* MayoClinic.com: Post-concussion syndrome

In a statement, the NFL indicated that their staffs take a cautious, conservative approach to managing concussions.

While they support research into the impact of concussions, they maintain that, "Hundreds of thousands of people have played football and other sports without experiencing any problem of this type and there continues to be considerable debate within the medical community on the precise long-term effects of concussions and how they relate to other risk factors."

The NFL is planning its own independent medical study of retired NFL players on the long-term effects of concussion.

"Really my main reason even for talking about this is to help the guys who are already retired," said Johnson. "[They] are getting divorced, going bankrupt, can't work, are depressed, and don't know what's wrong with them. [It is] to give them a name for it so they can go get help."

"The idea that you can whack your head hundreds of times in your life and knock yourself out and get up and be fine is gone," said Nowinski. "We know we can't do that anymore. This causes long-term damage."

Tinnitus is No. 1 disabilty among veterans of Iraq and Afghanistan

Tinnitus or ringing in the ears is now "the No. 1 cause of disability among veterans that served in Afghanistan and Iraq", according to Theresa Schulz, a 21-year veteran of military audiology. Was the failure to issue combat soldiers the reason for these disabilities?

Political Affairs.net
http://www.politicalaffairs.net/article/articleview/8125/

"What? What?" Failure To Supply Earplugs Cost GIs Their Hearing

By Sherwood Ross

Thousands of GIs have suffered preventable hearing loss because they were not supplied with earplugs to reduce the din of battle. Many have a permanent ringing in their ears they will suffer throughout their lives.

The condition is widespread. In 2006, the Veterans Administration paid out more than a half billion dollars to veterans with tinnitus, a condition which affects nearly half of those troops exposed to blasts.

The US Army Center for Health Promotion and Preventive Medicine conducted a study 141,000 GIs between April, 2003, and March, 2004, that showed tinnitus – ringing in the ears – accounted for more than 30 per cent of post-deployment-related diagnoses.

“There were not adequate supplies of earplugs to fit all deploying soldiers,” the Center found. “There was also failure of an Army medical readiness automation system…to provide unit commanders with information regarding troops having adequate hearing protection…Finally, there is evidence…that soldiers having blast injuries may not have been referred to audiology for adequate evaluation and treatment,” the Center said.

In part as a result of this malfeasance, of the 1.3 million soldiers that have been deployed in the two current wars, 70,000 are collecting disability pay for tinnitus and 58,000 more are collecting for hearing loss. That adds up to 128,000 GIs, or one in 10 deployed.

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According to an article in the February 9th issue of The New Yorker, from which the data for this article is taken, author Jerome Groopman writes, “the Pentagon had failed to anticipate the kind of hearing-protection devices that were needed. Even soldiers who were provided with earplugs were given insufficient instruction in their use; mistakenly believing that the earplugs could interfere with low-frequency sounds, like whispered commands during search-and-destroy operations, many chose not to use them.”

Groopman quotes Theresa Schulz, a 21-year veteran of military audiology, as saying hearing loss accompanying tinnitus is now the No. 1 cause of disability among veterans” that served in Afghanistan and Iraq.

Schulz earlier penned an article for Hearing Health titled, “Troops Return with Alarming Rates of Hearing Loss.” It lamented: “Unfortunately, the resources required to accomplish the hearing conservation mission throughout the armed forces are diminishing just as the problem worsens.” Positions for active-duty audiologists, she noted, were being scaled back. “In the Army,” she wrote, “only forty-six per cent of those soldiers who require an annual hearing evaluation – because they are exposed to hazardous noise as a part of their routine duties – received one last year.”

Perry Jefferies, a retired 48-year-old Army first sergeant that served in Iraq said that while hearing trauma was loudest during combat, he had been exposed to it at other times during his military career. On the weapons range in basic training, he said, “we only wore one earplug, so you could hear the instructor when he yelled at you.” And while learning how to fire a machine gun “we had no hearing protection. Afterwards, blood was coming out of one of my ears.” Jefferies, the magazine said, had ruptured his right eardrum. In battle, Jefferies heard explosions as US helicopters fired missiles into enemy ammunition bunkers; on another occasion, he heard a massive explosion at a nearby Iraqi fort so powerful it rocked his Humvee. “I felt like I was under water for a few minutes,” he said. Since then Jefferies suffers from tinnitus, which he describes as “a high, steady electronic tone. And my ears feel heavy and blocked.”

Jefferies, who is receiving 10 percent disability compensation for tinnitus, told Groopman, “It is hard to hear in a bar or restaurant, hard to discern certain words, and I have to turn up the TV.” At time, the ringing in his ears wakes him out of his sleep.

Of late, the military has attempted to make improved hearing protection more widely available, Groopman writes. Schulz says it is using a device akin to an earplug with a filter that admits most sounds but blocks gunfire. A more sophisticated device called QuietPro that blocks the sound of explosions has been adopted by the Marines.

Col. Kathy Gates, director of the Army Audiology and Speech Center, of Washington, DC, told the magazine all soldiers must be instructed in the use of the combat-arms earplugs, noting “A soldier with hearing loss is impaired in battle.”

One wounded veteran told Groopman it was easy to tell which soldiers weren’t wearing their earplugs: “They were the ones saying, ‘What? What?’”

When governments want their citizens to fight their wars they appeal to their patriotism. How little some regimes truly care about their people as human beings, though, is shown by the many troops they send into battle with insufficient protection for their bodies and their vehicles, and also if they deny them their deserved care and compensation upon their return home.

VBIA 2008 and Secretary's power to grant temporary disability ratings

One of the provision of VBIA 2008 that seems to be of import is the ability of the Secretary to grant temporary disability ratings.


+++++++++++++++++++++++++++++
ASSIGNMENT OF TEMPORARY RATINGS
.-(1) For the purpose of providing disability compensation under this chapter to veterans, the Secretary shall assign a temporary disability rating to a veteran as follows:
‘‘(A) To a veteran who-
‘‘(i) was discharged or released from active duty not
more than 365 days before the date such veteran submits
a claim for disability compensation under this chapter;
‘‘(ii) has one or more disabilities for which a rating
of total is not immediately assignable-
Page 6
S.3023-6
‘‘(I) under the regular provisions of the schedule
of ratings; or
‘‘(II) on the basis of individual unemployability;
and
‘‘(iii) has one or more-
‘‘(I) severe disabilities that result in substantially
gainful employment not being feasible or advisable;
or
‘‘(II) healed, unhealed, or incompletely healed wounds or injuries that make material impairment of employability likely.
‘‘(B) To a veteran who, as a result of a highly stressful
in-service event, has a mental disorder that is severe enough
to bring about the veteran’s discharge or release from active
duty.
‘‘(C) To a veteran who has a service-connected disability
that requires hospital treatment or observation in a Department
of Veterans Affairs or approved hospital for a period in excess
of 21 days.
‘‘(D) To a veteran who has a service-connected disability
that has required convalescent care or treatment at hospital
discharge (regular discharge or release to non-bed care) or
outpatient release that meets the requirements of regulations
prescribed by the Secretary.
‘‘(2) With respect to a veteran described in paragraph (1)(A),
the Secretary may assign a temporary disability rating to such
veteran regardless of whether such veteran has obtained a medical
examination or a medical opinion concerning such veteran’s dis-
ability.
‘‘(3) With respect to a veteran described in paragraph (1)(B),
the Secretary shall schedule a medical examination for such veteran
not later than six months after the separation or discharge of
such veteran from active duty.
‘‘(b) TERMINATION OF TEMPORARY DISABILITY RATINGS
.-(1)
Except as provided in paragraph (2), a temporary disability rating
assigned to a veteran under this section shall remain in effect
as follows:
‘‘(A) For a veteran who is assigned a temporary disability
rating under subsection (a)(1)(A), until the later of the date
that is-
‘‘(i) 12 months after the date of discharge or release
from active duty; or
‘‘(ii) provided in regulations prescribed by the Sec-
retary.
‘‘(B) For a veteran who is assigned a temporary disability
rating under subsection (a)(1)(B), until the date on which a
rating decision is issued to such veteran following the medical
examination scheduled under subsection (a)(3).
‘‘(C) For a veteran who is assigned a temporary disability
rating under subsection (a)(1)(C), until the later of the date
that is-
‘‘(i) the last day of the month in which the veteran
is discharged from the hospital as described in such sub-
section (a)(1)(C); or
‘‘(ii) provided in regulations prescribed by the Sec-
retary.
Page 7
S.3023-7
‘‘(D) For a veteran who is assigned a temporary disability
rating under subsection (a)(1)(D), until the date that is provided
in regulations prescribed by the Secretary.
‘‘(2) The Secretary may extend a temporary disability rating
assigned to a veteran under subsection (a) beyond the applicable
termination date under paragraph (1) if the Secretary determines
that such an extension is appropriate.
‘‘(c) REGULATIONS
.-The Secretary shall prescribe regulations
to carry out the provisions of this section.
‘‘(d) CONSTRUCTION
.-Nothing in this section shall be construed
to preclude the Secretary from providing a temporary disability
rating under an authority other than this section.’’.

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Page 1
S.3023
One Hundred Tenth Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Thursday,
the third day of January, two thousand and eight
An Act To amend title 38, United States Code, to improve and enhance compensation and pension, housing, labor and education, and insurance benefits for veterans, and for other purposes.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE
.—This Act may be cited as the ‘‘Veterans’ Benefits Improvement Act of 2008’’.
(b) TABLE OF CONTENTS
.—The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Reference to title 38, United States Code.
TITLE I—COMPENSATION AND PENSION MATTERS
Sec. 101. Regulations on contents of notice to be provided claimants by the Department of Veterans Affairs regarding the substantiation of claims.
Sec. 102. Judicial review of adoption and revision by the Secretary of Veterans Affairs of the schedule of ratings for disabilities of veterans.
Sec. 103. Conforming amendment relating to non-deductibility from veterans’ disability compensation of disability severance pay for disabilities incurred by members of the Armed Forces in combat zones.
Sec. 104. Report on progress of the Secretary of Veterans Affairs in addressing causes for variances in compensation payments for veterans for service-connected disabilities.
Sec. 105. Extension of temporary authority for the performance of medical disability examinations by contract physicians.
Sec. 106. Addition of osteoporosis to disabilities presumed to be service-connected in former prisoners of war with post-traumatic stress disorder.

TITLE II—MODERNIZATION OF DEPARTMENT OF VETERANS AFFAIRS DISABILITY COMPENSATION SYSTEM
Subtitle A—Benefits Matters
Sec. 211. Authority for temporary disability ratings.
Sec. 212. Substitution upon death of claimant.
Sec. 213. Report on compensation of veterans for loss of earning capacity and quality of life and on long-term transition payments to veterans undergoing rehabilitation for service-connected disabilities.
Sec. 214. Advisory Committee on Disability Compensation.
Subtitle B—Assistance and Processing Matters
Sec. 221. Pilot programs on expedited treatment of fully developed claims and provision of checklists to individuals submitting claims.
Sec. 222. Office of Survivors Assistance.
Sec. 223. Comptroller General report on adequacy of dependency and indemnity compensation to maintain survivors of veterans who die from service-connected disabilities.
Sec. 224. Independent assessment of quality assurance program.
Sec. 225. Certification and training of employees of the Veterans Benefits Administration responsible for processing claims.

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S.3023—2

Sec. 226. Study of performance measures for claims adjudications of the Veterans Benefits Administration.
Sec. 227. Review and enhancement of use of information technology in Veterans Benefits Administration.
Sec. 228. Study and report on improving access to medical advice.
TITLE III—LABOR AND EDUCATION MATTERS
Subtitle A—Labor and Employment Matters
Sec. 311. Reform of USERRA complaint process.
Sec. 312. Modification and expansion of reporting requirements with respect to enforcement of USERRA.
Sec. 313. Training for executive branch human resources personnel on employment and reemployment rights of members of the uniformed services.
Sec. 314. Report on the employment needs of Native American veterans living on tribal lands.
Sec. 315. Equity powers.
Sec. 316. Waiver of residency requirement for Directors for Veterans’ Employment
and Training.
Sec. 317. Modification of special unemployment study to cover veterans of Post 9/
11 Global Operations.
Subtitle B—Education Matters
Sec. 321. Modification of period of eligibility for Survivors’ and Dependents’ Educational Assistance of certain spouses of individuals with service-connected disabilities total and permanent in nature.
Sec. 322. Repeal of requirement for report to the Secretary of Veterans Affairs on prior training.
Sec. 323. Modification of waiting period before affirmation of enrollment in a correspondence course.
Sec. 324. Change of programs of education at the same educational institution.
Sec. 325. Repeal of certification requirement with respect to applications for approval of self-employment on-job training.
Sec. 326. Coordination of approval activities in the administration of education benefits.

Subtitle C—Vocational Rehabilitation Matters
Sec. 331. Waiver of 24-month limitation on program of independent living services and assistance for veterans with a severe disability incurred in the Post-9/11 Global Operations period.
Sec. 332. Increase in cap of number of veterans participating in independent living program.
Sec. 333. Report on measures to assist and encourage veterans in completing vocational rehabilitation.
Sec. 334. Longitudinal study of Department of Veterans Affairs vocational rehabilitation programs.

TITLE IV—INSURANCE MATTERS
Sec. 401. Report on inclusion of severe and acute post-traumatic stress disorder among conditions covered by traumatic injury protection coverage under Servicemembers’ Group Life Insurance.
Sec. 402. Treatment of stillborn children as insurable dependents under Servicemembers’ Group Life Insurance.
Sec. 403. Other enhancements of Servicemembers’ Group Life Insurance coverage.
Sec. 404. Administrative costs of service disabled veterans’ insurance.

TITLE V—HOUSING MATTERS
Sec. 501. Temporary increase in maximum loan guaranty amount for certain housing loans guaranteed by Secretary of Veterans Affairs.
Sec. 502. Report on impact of mortgage foreclosures on veterans.
Sec. 503. Requirement for regular updates to handbook for design furnished to veterans eligible for specially adapted housing assistance by Secretary of Veterans Affairs.
Sec. 504. Enhancement of refinancing of home loans by veterans.
Sec. 505. Extension of certain veterans home loan guaranty programs.

TITLE VI—COURT MATTERS
Sec. 601. Temporary increase in number of authorized judges of the United States Court of Appeals for Veterans Claims.
Sec. 602. Protection of privacy and security concerns in court records.

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S.3023—3

Sec. 603. Recall of retired judges of the United States Court of Appeals for Veterans Claims.
Sec. 604. Annual reports on workload of the United States Court of Appeals for Veterans Claims.
Sec. 605. Additional discretion in imposition of practice and registration fees.

TITLE VII—ASSISTANCE TO UNITED STATES PARALYMPIC INTEGRATED
ADAPTIVE SPORTS PROGRAM
Sec. 701. Findings and purpose.
Sec. 702. Department of Veterans Affairs provision of assistance to United States Paralympics, Inc.
Sec. 703. Department of Veterans Affairs Office of National Veterans Sports Programs and Special Events.
Sec. 704. Comptroller General report.

TITLE VIII—OTHER MATTERS
Sec. 801. Authority for suspension or termination of claims of the United States against individuals who died while serving on active duty in the Armed Forces.
Sec. 802. Three-year extension of authority to carry out income verification.
Sec. 803. Maintenance, management, and availability for research of assets of Air Force Health Study.
Sec. 804. National Academies study on risk of developing multiple sclerosis as a result of certain service in the Persian Gulf War and Post 9/11 Global Operations theaters.
Sec. 805. Termination or suspension of contracts for cellular telephone service for certain servicemembers.
Sec. 806. Contracting goals and preferences for veteran-owned small business concerns.
Sec. 807. Penalties for violation of interest rate limitation under Servicemembers Civil Relief Act.
Sec. 808. Five-year extension of sunset provision for Advisory Committee on Minority Veterans.
Sec. 809. Authority of Secretary of Veterans Affairs to advertise to promote awareness of benefits under laws administered by the Secretary.
Sec. 810. Memorial headstones and markers for deceased remarried surviving spouses of veterans.

SEC. 2. REFERENCE TO TITLE 38, UNITED STATES CODE.
Except as otherwise expressly provided, whenever in this Act
an amendment or repeal is expressed in terms of an amendment
to, or repeal of, a section or other provision, the reference shall
be considered to be made to a section or other provision of title
38, United States Code.

TITLE I—COMPENSATION AND PENSION
MATTERS
SEC. 101. REGULATIONS ON CONTENTS OF NOTICE TO BE PROVIDED CLAIMANTS BY THE DEPARTMENT OF VETERANS AFFAIRS REGARDING THE SUBSTANTIATION OF CLAIMS.
(a) IN GENERAL
.—Section 5103(a) is amended—
(1) by inserting ‘‘(1)’’ before ‘‘Upon receipt’’; and
(2) by adding at the end the following new paragraph:
‘‘(2)(A) The Secretary shall prescribe in regulations require-
ments relating to the contents of notice to be provided under this
subsection.
‘‘(B) The regulations required by this paragraph—
‘‘(i) shall specify different contents for notice based on
whether the claim concerned is an original claim, a claim
for reopening a prior decision on a claim, or a claim for an
increase in benefits;

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S.3023—4

‘‘(ii) shall provide that the contents for such notice be
appropriate to the type of benefits or services sought under
the claim;
‘‘(iii) shall specify for each type of claim for benefits the
general information and evidence required to substantiate the
basic elements of such type of claim; and
‘‘(iv) shall specify the time period limitations required
pursuant to subsection (b).’’.
(b) APPLICABILITY
.—The regulations required by paragraph (2)
of section 5103(a) of title 38, United States Code (as amended
by subsection (a) of this section), shall apply with respect to notices
provided to claimants on or after the effective date of such regula-
tions.

SEC. 102. JUDICIAL REVIEW OF ADOPTION AND REVISION BY THE SECRETARY OF VETERANS AFFAIRS OF THE SCHEDULE
OF RATINGS FOR DISABILITIES OF VETERANS.
Section 502 is amended by striking ‘‘(other than an action
relating to the adoption or revision of the schedule of ratings for
disabilities adopted under section 1155 of this title)’’.
SEC. 103. CONFORMING AMENDMENT RELATING TO NON-DEDUCTIBILITY FROM VETERANS’ DISABILITY COMPENSATION OF DISABILITY SEVERANCE PAY FOR DISABILITIES INCURRED
BY MEMBERS OF THE ARMED FORCES IN COMBAT ZONES.
(a) CONFORMING AMENDMENT
.—Section 1646 of the Wounded
Warrior Act (title XVI of Public Law 110–181; 122 Stat. 472) is
amended—
(1) by redesignating subsection (c) as subsection (d); and
(2) by inserting after subsection (b) the following new sub-
section (c):
‘‘(c) CONFORMING AMENDMENT
.—Section 1161 of title 38, United
States Code, is amended by striking ‘as required by section 1212(c)
of title 10’ and inserting ‘to the extent required by section 1212(d)
of title 10’.’’.
(b) EFFECTIVE DATE
.—The amendments made by subsection
(a) shall take effect on January 28, 2008 (the date of the enactment
of the Wounded Warrior Act), as if included in that Act, to which
they relate.

SEC. 104. REPORT ON PROGRESS OF THE SECRETARY OF VETERANS AFFAIRS IN ADDRESSING CAUSES FOR VARIANCES IN COMPENSATION PAYMENTS FOR VETERANS FOR SERVICE-CONNECTED DISABILITIES.
(a) REPORT REQUIRED
.—Not later than one year after the date
of the enactment of this Act, the Secretary of Veterans Affairs
shall submit to the Committee on Veterans’ Affairs of the Senate
and the Committee on Veterans’ Affairs of the House of Representa-
tives a report describing the progress of the Secretary in addressing
the causes of unacceptable variances in compensation payments
for veterans for service-connected disabilities.
(b) ELEMENTS
.—The report required under subsection (a) shall
include the following:
(1) A description of the efforts of the Veterans Benefits
Administration to coordinate with the Veterans Health
Administration to improve the quality of examinations of vet-
erans with service-connected disabilities that are performed
by the Veterans Health Administration and contract clinicians,

Page 5
S.3023—5

including efforts relating to the use of approved templates
for such examinations and of reports on such examinations
that are based on such templates prepared in an easily-readable
format.
(2) An assessment of the current personnel requirements
of the Veterans Benefits Administration, including an assess-
ment of the adequacy of the number of personnel assigned
to each regional office of the Administration for each type
of claim adjudication position.
(3) A description of the differences, if any, in current pat-
terns of claims submitted to the Secretary of Veterans Affairs
regarding ratings for service-connected disabilities among var-
ious populations of veterans, including veterans living in rural
and highly rural areas, minority veterans, veterans who served
in the National Guard or Reserve, and veterans who are retired
from the Armed Forces, and a description and assessment
of efforts undertaken to reduce such differences.

SEC. 105. EXTENSION OF TEMPORARY AUTHORITY FOR THE PERFORMANCE OF MEDICAL DISABILITY EXAMINATIONS BY CONTRACT PHYSICIANS.
Section 704(c) of the Veterans Benefits Act of 2003 (Public
Law 108–183; 117 Stat. 2651; 38 U.S.C. 5101 note) is amended
by striking ‘‘December 31, 2009’’ and inserting ‘‘December 31, 2010’’.

SEC. 106. ADDITION OF OSTEOPOROSIS TO DISABILITIES PRESUMED TO BE SERVICE-CONNECTED IN FORMER PRISONERS OF WAR WITH POST-TRAUMATIC STRESS DISORDER.
Section 1112(b)(2) is amended by adding at the end the fol-
lowing new subparagraph:
‘‘(F) Osteoporosis, if the Secretary determines that the vet-
eran has post-traumatic stress disorder (PTSD).’’.

TITLE II—MODERNIZATION OF DEPARTMENT OF VETERANS AFFAIRS DISABILITY COMPENSATION SYSTEM
Subtitle A—Benefits Matters

SEC. 211. AUTHORITY FOR TEMPORARY DISABILITY RATINGS.
(a) IN GENERAL
.—Chapter 11 is amended by inserting after
section 1155 the following new section:
‘‘§1156. Temporary disability ratings
‘‘(a) ASSIGNMENT OF TEMPORARY RATINGS
.—(1) For the purpose of providing disability compensation under this chapter to veterans, the Secretary shall assign a temporary disability rating to a veteran as follows:
‘‘(A) To a veteran who—
‘‘(i) was discharged or released from active duty not
more than 365 days before the date such veteran submits
a claim for disability compensation under this chapter;
‘‘(ii) has one or more disabilities for which a rating
of total is not immediately assignable—

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S.3023—6

‘‘(I) under the regular provisions of the schedule
of ratings; or
‘‘(II) on the basis of individual unemployability;
and
‘‘(iii) has one or more—
‘‘(I) severe disabilities that result in substantially
gainful employment not being feasible or advisable;
or
‘‘(II) healed, unhealed, or incompletely healed
wounds or injuries that make material impairment
of employability likely.
‘‘(B) To a veteran who, as a result of a highly stressful
in-service event, has a mental disorder that is severe enough
to bring about the veteran’s discharge or release from active
duty.
‘‘(C) To a veteran who has a service-connected disability
that requires hospital treatment or observation in a Department
of Veterans Affairs or approved hospital for a period in excess
of 21 days.
‘‘(D) To a veteran who has a service-connected disability
that has required convalescent care or treatment at hospital
discharge (regular discharge or release to non-bed care) or
outpatient release that meets the requirements of regulations
prescribed by the Secretary.
‘‘(2) With respect to a veteran described in paragraph (1)(A),
the Secretary may assign a temporary disability rating to such
veteran regardless of whether such veteran has obtained a medical
examination or a medical opinion concerning such veteran’s dis-
ability.
‘‘(3) With respect to a veteran described in paragraph (1)(B),
the Secretary shall schedule a medical examination for such veteran
not later than six months after the separation or discharge of
such veteran from active duty.
‘‘(b) TERMINATION OF TEMPORARY DISABILITY RATINGS
.—(1)
Except as provided in paragraph (2), a temporary disability rating
assigned to a veteran under this section shall remain in effect
as follows:
‘‘(A) For a veteran who is assigned a temporary disability
rating under subsection (a)(1)(A), until the later of the date
that is—
‘‘(i) 12 months after the date of discharge or release
from active duty; or
‘‘(ii) provided in regulations prescribed by the Sec-
retary.
‘‘(B) For a veteran who is assigned a temporary disability
rating under subsection (a)(1)(B), until the date on which a
rating decision is issued to such veteran following the medical
examination scheduled under subsection (a)(3).
‘‘(C) For a veteran who is assigned a temporary disability
rating under subsection (a)(1)(C), until the later of the date
that is—
‘‘(i) the last day of the month in which the veteran
is discharged from the hospital as described in such sub-
section (a)(1)(C); or
‘‘(ii) provided in regulations prescribed by the Secretary.

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S.3023—7

‘‘(D) For a veteran who is assigned a temporary disability
rating under subsection (a)(1)(D), until the date that is provided
in regulations prescribed by the Secretary.
‘‘(2) The Secretary may extend a temporary disability rating
assigned to a veteran under subsection (a) beyond the applicable
termination date under paragraph (1) if the Secretary determines
that such an extension is appropriate.
‘‘(c) REGULATIONS
.—The Secretary shall prescribe regulations
to carry out the provisions of this section.
‘‘(d) CONSTRUCTION
.—Nothing in this section shall be construed
to preclude the Secretary from providing a temporary disability
rating under an authority other than this section.’’.
(b) APPLICATION
.—Section 1156(a)(1) of title 38, United States
Code, as added by subsection (a), shall apply with respect to a
veteran who is discharged or released from active duty (as defined
in section 101 of title 38, United States Code) on or after the
date of the enactment of this Act.
(c) CLERICAL AMENDMENT
.—The table of sections at the beginning of chapter 11 is amended by inserting after the item relating to section 1155 the following new item:
‘‘1156. Temporary disability ratings.’’.

SEC. 212. SUBSTITUTION UPON DEATH OF CLAIMANT.
(a) IN GENERAL
.—Chapter 51 is amended by inserting after
section 5121 the following new section:
‘‘§5121A. Substitution in case of death of claimant
‘‘(a) SUBSTITUTION
.—(1) If a claimant dies while a claim for
any benefit under a law administered by the Secretary, or an
appeal of a decision with respect to such a claim, is pending,
a living person who would be eligible to receive accrued benefits
due to the claimant under section 5121(a) of this title may, not
later than one year after the date of the death of such claimant,
file a request to be substituted as the claimant for the purposes
of processing the claim to completion.
‘‘(2) Any person seeking to be substituted for the claimant
shall present evidence of the right to claim such status within
such time as prescribed by the Secretary in regulations.
‘‘(3) Substitution under this subsection shall be in accordance
with such regulations as the Secretary may prescribe.
‘‘(b) LIMITATION
.—Those who are eligible to make a claim under
this section shall be determined in accordance with section 5121
of this title.’’.
(b) CLERICAL AMENDMENT
.—The table of sections at the beginning of chapter 51 is amended by inserting after the item relating to section 5121 the following new item:
‘‘5121A. Substitution in case of death of claimant.’’.
(c) EFFECTIVE DATE
.—Section 5121A of title 38, United States
Code, as added by subsection (a), shall apply with respect to the
claim of any claimant who dies on or after the date of the enactment
of this Act.

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S.3023—8

SEC. 213. REPORT ON COMPENSATION OF VETERANS FOR LOSS OF EARNING CAPACITY AND QUALITY OF LIFE AND ON LONG-TERM TRANSITION PAYMENTS TO VETERANS UNDER-
GOING REHABILITATION FOR SERVICE-CONNECTED DISABILITIES.
(a) REPORT REQUIRED
.—Not later than 210 days after the date
of the enactment of this Act, the Secretary of Veterans Affairs
shall submit to Congress a report on the findings of the Secretary
as a result of the following studies:
(1) The most recent study of the Secretary on the appro-
priate levels of disability compensation to be paid to veterans
to compensate for loss of earning capacity and quality of life
as a result of service-related disabilities.
(2) The most recent study of the Secretary on the feasability
and appropriate level of long-term transition payments to vet-
erans who are separated from the Armed Forces due to dis-
ability while such veterans are undergoing rehabilitation for
such disability.
(b) ELEMENTS
.—The report required by subsection (a) shall
include the following:
(1) A comprehensive description of the findings and rec-
ommendations of the Secretary as a result of the studies
described in subsection (a).
(2) A description of the actions proposed to be taken by
the Secretary in light of such findings and recommendations,
including a description of any modification of the schedule
for rating disabilities of veterans under section 1155 of title
38, United States Code, proposed to be undertaken by the
Secretary and of any other modification of policy or regulations
proposed to be undertaken by the Secretary.
(3) For each action proposed to be taken as described
in paragraph (2), a proposed schedule for the taking of such
action, including a schedule for the commencement and comple-
tion of such action.
(4) A description of any legislative action required in order
to authorize, facilitate, or enhance the taking of any action
proposed to be taken as described in paragraph (2).
SEC. 214. ADVISORY COMMITTEE ON DISABILITY COMPENSATION.
(a) IN GENERAL
.—Subchapter III of chapter 5 is amended by
adding at the end the following new section:
‘‘§546. Advisory Committee on Disability Compensation
‘‘(a) ESTABLISHMENT
.—(1) There is in the Department the
Advisory Committee on Disability Compensation (in this section
referred to as the ‘Committee’).
‘‘(2) The Committee shall consist of not more than 18 members
appointed by the Secretary from among individuals who—
‘‘(A) have experience with the provision of disability com-
pensation by the Department; or
‘‘(B) are leading medical or scientific experts in relevant
fields.
‘‘(3)(A) Except as provided in subparagraph (B), the Secretary
shall determine the terms of service and pay and allowances of
the members of the Committee.

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S.3023—9

‘‘(B) A term of service may not exceed four years and shall
be staggered to ensure that the dates for the termination of the
members’ terms are not all the same.
‘‘(C) The Secretary may reappoint any member for one or more
additional terms of service.
‘‘(4) The Secretary shall select a Chair from among the members
of the Committee.
‘‘(b) RESPONSIBILITIES OF COMMITTEE
.—(1) The Secretary shall,
on a regular basis, consult with and seek the advice of the Com-
mittee with respect to the maintenance and periodic readjustment
of the schedule for rating disabilities under section 1155 of this
title.
‘‘(2)(A) In providing advice to the Secretary under this sub-
section, the Committee shall—
‘‘(i) assemble and review relevant information relating to
the needs of veterans with disabilities;
‘‘(ii) provide information relating to the nature and char-
acter of disabilities arising from service in the Armed Forces;
‘‘(iii) provide an on-going assessment of the effectiveness
of the schedule for rating disabilities; and
‘‘(iv) provide on-going advice on the most appropriate means
of responding to the needs of veterans relating to disability
compensation in the future.
‘‘(B) In carrying out its duties under subparagraph (A), the
Committee shall take into special account the needs of veterans
who have served in a theater of combat operations.
‘‘(c) RESOURCES
.—The Secretary shall ensure that appropriate
personnel, funding, and other resources are provided to the Com-
mittee to carry out its responsibilities.
‘‘(d) BIENNIAL REPORTS TO THE SECRETARY
.—(1) Not later than
October 31, 2010, and not less frequently than every two years
thereafter, the Committee shall submit to the Secretary a report
on the programs and activities of the Department that relate to
the payment of disability compensation. Each such report shall
include—
‘‘(A) an assessment of the needs of veterans with respect
to disability compensation; and
‘‘(B) such recommendations (including recommendations for
administrative or legislative action) as the Committee considers
appropriate.
‘‘(2) The Committee may submit to the Secretary such other
reports and recommendations as the Committee considers appro-
priate.
‘‘(e) BIENNIAL REPORTS TO CONGRESS
.—(1) Not later than 90
days after the receipt of a report required under subsection (d)(1),
the Secretary shall transmit to the Committee on Veterans’ Affairs
of the Senate and the Committee on Veterans’ Affairs of the House
of Representatives a copy of such report, together with such com-
ments and recommendations concerning such report as the Sec-
retary considers appropriate.
‘‘(2) The Secretary shall submit with each report required under
paragraph (1) a summary of all reports and recommendations of
the Committee submitted to the Secretary under subsection (d)(2)
since the previous report transmitted by the Secretary under para-
graph (1) of this subsection.
‘‘(f) APPLICABILITY OF FEDERAL ADVISORY COMMITTEE
ACT
.—
(1) Except as provided in paragraph (2), the provisions of the
(2)
Page 10
S.3023—10

Federal Advisory Committee Act (5 U.S.C. App.) shall apply to
the activities of the Committee under this section.
‘‘(2) Section 14 of such Act shall not apply to the Committee.’’.
(b) CLERICAL AMENDMENT
.—The table of sections at the begin-
ning of such chapter is amended by adding at the end of the
items relating to subchapter III the following new item:
‘‘546. Advisory Committee on Disability Compensation.’’.
Subtitle B—Assistance and Processing
Matters

SEC. 221. PILOT PROGRAMS ON EXPEDITED TREATMENT OF FULLY DEVELOPED CLAIMS AND PROVISION OF CHECKLISTS TO INDIVIDUALS SUBMITTING CLAIMS.
(a) PILOT PROGRAM ON EXPEDITED TREATMENT OF
FULLY DEVELOPED CLAIMS
.—
(1) I
N GENERAL
.—The Secretary of Veterans Affairs shall
carry out a pilot program to assess the feasibility and advis-
ability of providing expeditious treatment of fully developed
compensation or pension claims to ensure that such claims
are adjudicated not later than 90 days after the date on which
such claim is submitted as fully developed.
(2) DURATION OF PILOT PROGRAM
.—The pilot program under
this subsection shall be carried out during the one-year period
beginning on the date that is 60 days after the date of the
enactment of this Act.
(3) PROGRAM LOCATIONS
.—The pilot program under this
subsection shall be carried out at 10 regional offices of the
Department of Veterans Affairs selected by the Secretary for
purposes of such pilot program.
(4) FULLY DEVELOPED CLAIM DEFINED
.—For purposes of
this subsection, the term ‘‘fully developed claim’’ means a claim
for a benefit under a law administered by the Secretary—
(A) for which the claimant—
(i) received assistance from a veterans service
officer, a State or country veterans service officer, an
agent, or an attorney; or
(ii) submits along with the claim an appropriate
indication that the claimant does not intend to submit
any additional information or evidence in support of
the claim and does not require additional assistance
with respect to the claim; and
(B) for which the claimant—
(i) submits a certification in writing that is signed
and dated by the claimant stating that, as of such
date, no additional information or evidence is available
or needs to be submitted in order for the claim to
be adjudicated; and
(ii) for which the claimant’s representative, if any,
submits a certification in writing that is signed and
dated by the representative stating that, as of such
date, no additional information or evidence is available
or needs to be submitted in order for the claim to
be adjudicated.

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S.3023—11

(b) PILOT PROGRAM ON PROVISION OF CHECKLISTS TO INDIVIDUALS SUBMITTING CLAIMS
.—
(1) IN GENERAL
.—The Secretary shall carry out a pilot
program to assess the feasibility and advisability of providing
to a claimant for whom the Secretary is required under section
5103(a) of title 38, United States Code, to provide notice of
required information and evidence to such claimant and such
claimant’s representative, if any, a checklist that includes
information or evidence required to be submitted by the claim-
ant to substantiate the claim.
(2) DURATION OF PILOT PROGRAM
.—The pilot program under
this subsection shall be carried out—
(A) for original claims filed after the date of the enact-
ment of this Act, during the one-year period beginning
on the date that is 60 days after the date of the enactment
of this Act; and
(B) for claims to reopen and for claims for increased
ratings that were filed after the date of the enactment
of this Act, during the three-year period beginning on the
date that is 60 days after the date of the enactment of
this Act.
(3) PROGRAM LOCATIONS
.—The pilot program under this
subsection shall be carried out at four regional offices of the
Department selected by the Secretary for purposes of such
pilot program.
(4) CONSTRUCTION
.—A checklist provided under the pilot
program under this subsection—
(A) shall be construed to be an addendum to a notice
provided under section 5103(a) of title 38, United Sates
Code; and
(B) shall not be considered as part of such notice for
purposes of reversal or remand of a decision of the Sec-
retary.
(c) REPORTS
.—
(1) FIRST INITIAL REPORT
.—Not later than 335 days after
the date of the enactment of this Act, the Secretary shall
submit to Congress a report on the pilot program under sub-
section (a) and the pilot program under subsection (b) with
respect to claims described in subsection (b)(2)(A).
(2) SECOND INTERIM REPORT
.—Not later than 1,065 days
after the date of the enactment of this Act, the Secretary
shall submit to Congress a report on the pilot program under
subsection (b) with respect to claims described in subsection
(b)(2)(B).
(3) ELEMENTS OF INTERIM REPORTS
.—The reports required
by paragraphs (1) and (2) shall include the following:
(A) Data concerning the number and type of claims
covered by the respective pilot program.
(B) The findings of the Secretary with respect to the
respective pilot program.
(C) The recommendations of the Secretary on the feasi-
bility and advisability of continuing or expanding the
respective pilot program and any necessary modifications
to such pilot program for continuation or expansion.
(D) Such other information as the Secretary considers
appropriate.

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(4) FINAL REPORT
.—Not later than 180 days after the
completion of each pilot program carried out under this section,
the Secretary shall submit to Congress a final report on the
feasibility and advisability of continuing or expanding the
respective pilot program.
SEC. 222. OFFICE OF SURVIVORS ASSISTANCE.
(a) IN GENERAL
.—Chapter 3 is amended by adding at the
end the following new section:
‘‘§321. Office of Survivors Assistance
‘‘(a) ESTABLISHMENT
.—The Secretary shall establish in the
Department an Office of Survivors Assistance (in this section
referred to as the ‘Office’) to serve as a resource regarding all
benefits and services furnished by the Department—
‘‘(1) to survivors and dependents of deceased veterans; and
‘‘(2) to survivors and dependents of deceased members of
the Armed Forces.
‘‘(b) ADVISORY DUTIES
.—The Office shall serve as a primary
advisor to the Secretary on all matters related to the policies,
programs, legislative issues, and other initiatives affecting the sur-
vivors and dependents described in subsection (a).
‘‘(c) GUIDANCE FROM STAKEHOLDERS
.—In establishing the
Office, the Secretary shall seek guidance from interested stake-
holders.
‘‘(d) RESOURCES
.—The Secretary shall ensure that appropriate
personnel, funding, and other resources are provided to the Office
to carry out its responsibilities.
‘‘(e) INCLUSION OF INFORMATION ON OFFICE IN ANNUAL REPORT ON DEPARTMENT ACTIVITIES
.—The Secretary shall include in each
annual Performance and Accountability report submitted by the
Secretary to Congress a description of the activities of the Office
during the fiscal year covered by such report.’’.
(b) CLERICAL AMENDMENT
.—The table of sections at the begin-
ning of such chapter is amended by adding at the end the following
new item:
‘‘321. Office of Survivors Assistance.’’.

SEC. 223. COMPTROLLER GENERAL REPORT ON ADEQUACY OF DEPENDENCY AND INDEMNITY COMPENSATION TO MAIN-
TAIN SURVIVORS OF VETERANS WHO DIE FROM SERVICE-
CONNECTED DISABILITIES.
(a) REPORT REQUIRED
.—Not later than 10 months after the
date of the enactment of this Act, the Comptroller General of
the United States shall submit to the Committees on Veterans’
Affairs and Appropriations of the Senate and the Committees on
Veterans’ Affairs and Appropriations of the House of Representa-
tives a report on the adequacy of dependency and indemnity com-
pensation payable under chapter 13 of title 38, United States Code,
to surviving spouses and dependents of veterans who die as a
result of a service-connected disability in replacing the deceased
veteran’s income.
(b) ELEMENTS
.—The report required by subsection (a) shall
include—
(1) a description of the current system for the payment
of dependency and indemnity compensation to surviving

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spouses and dependents described in subsection (a), including
a statement of the rates of such compensation so payable;
(2) an assessment of the adequacy of such payments in
replacing the deceased veteran’s income; and
(3) such recommendations as the Comptroller General con-
siders appropriate in order to improve or enhance the effects
of such payments in replacing the deceased veteran’s income.

SEC. 224. INDEPENDENT ASSESSMENT OF QUALITY ASSURANCE PROGRAM.
(a) IN GENERAL
.—Section 7731 is amended by adding at the
end the following new subsection:
‘‘(c)(1) The Secretary shall enter into a contract with an inde-
pendent third-party entity to conduct, during the three-year period
beginning on the date of the enactment of the Veterans’ Benefits
Improvement Act of 2008, an assessment of the quality assurance
program carried out under subsection (a).
‘‘(2) The assessment conducted under paragraph (1) shall
evaluate the following:
‘‘(A) The quality and accuracy of the work of employees
of the Veterans Benefits Administration, using a statistically
valid sample of such employees and a statistically valid sample
of such work.
‘‘(B) The performance of each regional office of the Veterans
Benefits Administration.
‘‘(C) The accuracy of the disability ratings assigned under
the schedule for rating disabilities under section 1155 of this
title.
‘‘(D) The consistency of disability ratings among regional
offices of the Veterans Benefits Administration, based on a
sample of specific disabilities.
‘‘(E) The performance of employees and managers of the
Veterans Benefits Administration.
‘‘(3) The Secretary shall develop a mechanism for the automated
gathering and producing of data that can be used to monitor and
assess trends relating to the items described in paragraph (2).
‘‘(4)(A) Beginning on the date that is six months after the
date of the enactment of the Veterans’ Benefits Improvement Act
of 2008, the Secretary shall—
‘‘(i) for each claim for disability compensation under laws
administered by the Secretary submitted to the Secretary on
or after such date, retain, monitor, and store in an accessible
format the data described in subparagraph (B); and
‘‘(ii) develop a demographic baseline for the data retained,
monitored, and stored under subparagraph (A).
‘‘(B) The data described in this subparagraph includes the
following:
‘‘(i) For each claim for disability compensation under laws
administered by the Secretary submitted by a claimant—
‘‘(I) the State in which the claimant resided when
the claim was submitted;
‘‘(II) the decision of the Secretary with respect to the
claim and each issue claimed; and
‘‘(III) the regional office and individual employee of
the Department responsible for rating the claim.
‘‘(ii) The State in which the claimant currently resides.

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‘‘(iii) Such other data as the Secretary determines is appro-
priate for monitoring the accuracy and consistency of decisions
with respect to such claims.
‘‘(5) Nothing in this subsection shall be construed to require
the Secretary to replace the quality assurance program under sub-
section (a) that was in effect on the day before the date of the
enactment of this subsection.’’.
(b) REPORT TO CONGRESS
.—Not later than the end of the three-
year period beginning on the date of the enactment of this Act,
the Secretary of Veterans Affairs shall submit to Congress a report
containing the results and findings of the independent third-party
entity described in section 7731(c)(1) of title 38, United States
Code, as added by subsection (a), with respect to the assessment
conducted under such section 7731(c)(1).

SEC. 225. CERTIFICATION AND TRAINING OF EMPLOYEES OF THE VETERANS BENEFITS ADMINISTRATION RESPONSIBLE FOR PROCESSING CLAIMS.
(a) EMPLOYEE CERTIFICATION REQUIRED
.—
(1) IN GENERAL
.—Subchapter II of chapter 77 is amended
by inserting after section 7732 the following new section:
‘‘§7732A. Employee certification
‘‘(a) DEVELOPMENT OF CERTIFICATION EXAMINATION
.—(1) The Secretary shall provide for an examination of appropriate employees and managers of the Veterans Benefits Administration who are responsible for processing claims for compensation and pension benefits under the laws administered by the Secretary.
‘‘(2) In developing the examination required by paragraph (1),
the Secretary shall—
‘‘(A) consult with appropriate individuals or entities,
including examination development experts, interested stake-
holders, and employee representatives; and
‘‘(B) consider the data gathered and produced under section
7731(c)(3) of this title.
‘‘(b) EMPLOYEE AND MANAGER REQUIREMENT
.—The Secretary
shall require appropriate employees and managers of the Veterans
Benefits Administration who are responsible for processing claims
for compensation and pension benefits under the laws administered
by the Secretary to take the examination provided under subsection
(a).’’.
(2) CLERICAL AMENDMENT
.—The table of sections at the
beginning of such chapter 77 is amended by inserting after
the item relating to section 7732 the following new item:
‘‘7732A. Employee certification.’’.
(3) DEADLINES FOR IMPLEMENTATION
.—The Secretary of
Veterans Affairs shall—
(A) develop an updated certification examination
required under section 7732A of title 38, United States
Code, as added by subsection (a), not later than one year
after the date of the enactment of this Act; and
(B) begin administering such certification examination
required under such section not later than 90 days after
the date on which the development of such certification
examination is complete.
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S.3023—15
(b) EVALUATION OF TRAINING
.—Not later than one year after
the date of the enactment of this Act, the Comptroller General
of the United States shall—
(1) evaluate the training programs administered for
employees of the Veterans Benefits Administration of the
Department of Veterans Affairs; and
(2) submit to the Committee on Veterans’ Affairs of the
Senate and the Committee on Veterans’ Affairs of the House
of Representatives a report on the findings of the Comptroller
General with respect to the evaluation described in paragraph
(1).

SEC. 226. STUDY OF PERFORMANCE MEASURES FOR CLAIMS ADJUDICATIONS OF THE VETERANS BENEFITS ADMINISTRA-
TION.
(a) STUDY OF WORK CREDIT SYSTEM AND WORK MANAGEMENT SYSTEM REQUIRED
.—The Secretary of Veterans Affairs shall conduct
a study on the effectiveness of the current employee work credit
system and work management system of the Veterans Benefits
Administration of the Department of Veterans Affairs, which is
used—
(1) to measure and manage the work production of
employees of the Veterans Benefits Administration who handle
claims for compensation and pension benefits; and
(2) to evaluate more effective means of improving perform-
ance.
(b) CONTENTS OF STUDY
.—In carrying out the study under
subsection (a), the Secretary shall consider—
(1) measures to improve the accountability, quality, and
accuracy for processing claims for compensation and pension
benefits under laws administered by the Secretary that are
adjudicated by the Veterans Benefits Administration;
(2) accountability for claims adjudication outcomes;
(3) the quality of claims adjudicated;
(4) a simplified process to adjudicate claims;
(5) the maximum use of information technology applica-
tions;
(6) rules-based applications and tools for processing and
adjudicating claims efficiently and effectively;
(7) methods of reducing the time required to obtain
information from outside sources; and
(8) the elements needed to implement—
(A) performance standards and accountability meas-
ures, intended to ensure that—
(i) claims for benefits under the laws administered
by the Secretary are processed in an objective,
accurate, consistent, and efficient manner; and
(ii) final decisions with respect to such claims are
consistent and issued within the target identified in
the most recent annual Performance and Account-
ability report submitted by the Secretary to Congress
for the most recent fiscal year;
(B) guidelines and procedures for the identification
and prompt processing of such claims that are ready to
rate upon submittal;
(C) guidelines and procedures for the identification
and prompt processing of such claims submitted by severely

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injured and very severely injured veterans, as determined
by the Secretary; and
(D) requirements for assessments of claims processing
at each regional office for the purpose of producing lessons
learned and best practices.
(c) REPORT TO CONGRESS
.—Not later than October 31, 2009,
the Secretary shall submit to Congress a report on—
(1) the study conducted under subsection (a); and
(2) the components required to implement the updated
system for evaluating employees of the Veterans Benefits
Administration required under subsection (d).
(d) EVALUATION OF CERTAIN VETERANS BENEFITS ADMINISTRATION EMPLOYEES RESPONSIBLE FOR PROCESSING CLAIMS FOR COMPENSATION AND PENSION BENEFITS
.—Not later than 210 days after
the date on which the Secretary submits to Congress the report
required under subsection (c), the Secretary shall establish an
updated system for evaluating the performance and accountability
of employees of the Veterans Benefits Administration who are
responsible for processing claims for compensation or pension bene-
fits. Such system shall be based on the findings of the study
conducted by the Secretary under subsection (a).

SEC. 227. REVIEW AND ENHANCEMENT OF USE OF INFORMATION TECHNOLOGY IN VETERANS BENEFITS ADMINISTRATION.
(a) REVIEW AND COMPREHENSIVE PLAN
.—Not later than one
year after the date of the enactment of this Act, the Secretary
of Veterans Affairs shall—
(1) conduct a review of the use of information technology
in the Veterans Benefits Administration with respect to the
processing of claims for compensation and pension benefits;
and
(2) develop a comprehensive plan for the use of such tech-
nology in processing such claims so as to reduce subjectivity,
avoidable remands, and regional office variances in disability
ratings for specific disabilities.
(b) INFORMATION TECHNOLOGY
.—The plan developed under sub-
section (a)(2) shall include the following:
(1) The use of rules-based processing or information tech-
nology systems utilizing automated decision support software
at all levels of processing such claims.
(2) The enhancement of the use of information technology
for all aspects of the claims process.
(3) Development of a technological platform that—
(A) allows for the use of information that members
of the Armed Forces, veterans, and dependents have sub-
mitted electronically, including uploaded military records,
medical evidence, and other appropriate documentation;
and
(B) to the extent practicable—
(i) provides the capability to such members, vet-
erans, and dependents to view applications for benefits
submitted online; and
(ii) complies with the provisions of subchapter III
of chapter 35 of title 44, United States Code, section
552a of title 5, United States Code, and other relevant
security policies and guidelines.

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(4) The use of electronic examination templates in conjunc-
tion with the schedule for rating disabilities under section
1155 of title 38, United States Code.
(5) Such changes as may be required to the electronic
health record system of the Department of Veterans Affairs
and the Department of Defense to ensure that Veterans Bene-
fits Administration claims examiners can access the available
electronic medical information of the Department of Veterans
Affairs and the Department of Defense.
(6) The provision of bi-directional access to medical records
and service records between the Department of Veterans Affairs
and the Department of Defense.
(7) The availability, on a secure Internet website of the
Department of Veterans Affairs, of a portal that can be used
by a claimant to check on the status of any claim submitted
by that claimant and that provides information, if applicable,
on—
(A) whether a decision has been reached with respect
to such a claim and notice of the decision; or
(B) if no such decision has been reached, notice of—
(i) whether the application submitted by the claim-
ant is complete;
(ii) whether the Secretary requires additional
information or evidence to substantiate the claim;
(iii) the estimated date on which a decision with
respect to the claim is expected to be made; and
(iv) the stage at which the claim is being processed
as of the date on which such status is checked.
(c) REVIEW OF BEST PRACTICES AND LESSONS LEARNED
.—In
carrying out this section, the Secretary shall review—
(1) best practices and lessons learned within the Depart-
ment of Veterans Affairs; and
(2) the use of the technology known as ‘‘VistA’’ by other
Government entities and private sector organizations who
employ information technology and automated decision support
software.
(d) REDUCTION OF CLAIMS PROCESSING TIME
.—In carrying out
this section, the Secretary shall ensure that a plan is developed
that, not later than three years after implementation, includes
information technology to the extent possible to reduce the proc-
essing time for each compensation and pension claim processed
by the Veterans Benefits Administration. The performance for
claims processing under this plan shall be adjusted for changes
to the numbers of claims filed in a given period, the complexity
of those claims, and any changes to the basic claims processing
rules which occur during the assessment period.
(e) CONSULTATION
.—In carrying out this section, the Secretary
of Veterans Affairs shall consult with information technology
designers at the Veterans Benefits Administration, the Veterans
Health Administration, VistA managers, the Secretary of Defense,
appropriate officials of other Government agencies, appropriate
individuals in the private and public sectors, veterans service
organizations, and other relevant service organizations.
(f) REPORT TO CONGRESS
.—Not later than April 1, 2010, the
Secretary shall submit to Congress a report on the review and
comprehensive plan required under this section.

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SEC. 228. STUDY AND REPORT ON IMPROVING ACCESS TO MEDICAL ADVICE.
(a) STUDY
.—The Secretary of Veterans Affairs shall conduct
a study—
(1) to assess the feasibility and advisability of various
mechanisms to improve communication between the Veterans
Benefits Administration and the Veterans Health Administra-
tion to provide Veterans Benefits Administration employees
with access to medical advice from the Veterans Health
Administration when needed by such employees to carry out
their duties; and
(2) to evaluate whether additional medical professionals
are necessary to provide the access described in paragraph
(1).
(b) REPORT TO CONGRESS
.—Not later than 180 days after the
date of the enactment of this Act, the Secretary shall submit to
Congress a report on the study conducted under subsection (a).
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