[USC03] 38 USC PART V: BOARDS, ADMINISTRATIONS, AND SERVICES
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38 USC PART V: BOARDS, ADMINISTRATIONS, AND SERVICES
From Title 38—VETERANS' BENEFITS

PART V—BOARDS, ADMINISTRATIONS, AND SERVICES

Chap.
Sec.
71.
Board of Veterans' Appeals
7101
72.
United States Court of Appeals for Veterans Claims
7251
73.
Veterans Health Administration—Organization and Functions
7301
74.
Veterans Health Administration—Personnel
7401
75.
Visual Impairment and Orientation and Mobility Professionals Educational Assistance Program
7501
76.
Health Professionals Educational Assistance Program
7601
77.
Veterans Benefits Administration
7701
78.
Veterans' Canteen Service
7801
79.
Information Security Education Assistance Program
7901

        

Amendments

2010Pub. L. 111–163, title III, §302(b), May 5, 2010, 124 Stat. 1149, added item for chapter 75.

2006Pub. L. 109–461, title IX, §903(a)(2), Dec. 22, 2006, 120 Stat. 3464, added item for chapter 79.

1998Pub. L. 105–368, title V, §512(a)(4)(B), Nov. 11, 1998, 112 Stat. 3341, substituted "Appeals for Veterans Claims" for "Veterans Appeals" in item for chapter 72.

1991Pub. L. 102–83, §2(d)(3), Aug. 6, 1991, 105 Stat. 402, added item for chapter 77.

Pub. L. 102–54, §14(e)(1), June 13, 1991, 105 Stat. 287, inserted "United States" before "Court of Veterans Appeals" in item for chapter 72.

Pub. L. 102–40, title IV, §§402(c)(2), 403(e)(1), (f)(2), May 7, 1991, 105 Stat. 239–241, substituted "BOARDS, ADMINISTRATIONS, AND SERVICES" for "BOARDS AND DEPARTMENTS" in part heading, renumbered section numbers by substituting "7101" for "4001" in item for chapter 71, "7251" for "4051" in item for chapter 72, and "7601" for "4301" in item for chapter 76, substituted "Veterans Health Administration—Organization and Functions" for "Department of Medicine and Surgery" and "7301" for "4101" in item for chapter 73, added item for chapter 74, struck out item for chapter 75 "Veterans' Canteen Service", and added item for chapter 78.

1988Pub. L. 100–687, div. A, title III, §301(b), Nov. 18, 1988, 102 Stat. 4121, added item for chapter 72.

Pub. L. 100–322, title II, §216(e)(2), May 20, 1988, 102 Stat. 530, added item for chapter 76.

CHAPTER 71—BOARD OF VETERANS' APPEALS

Sec.
7101.
Composition of Board of Veterans' Appeals.
7101A.
Members of Board: appointment; pay; performance review.
7102.
Assignment of members of Board.
7103.
Reconsideration; correction of obvious errors.
7104.
Jurisdiction of the Board.
7105.
Filing of appeal.
7105A.
Simultaneously contested claims.
[7106.
Repealed.]
7107.
Appeals: dockets; hearings.
7108.
Rejection of applications.
[7109.
Repealed.]
[7110.
Repealed.]
7111.
Revision of decisions on grounds of clear and unmistakable error.
7112.
Expedited treatment of remanded claims.
7113.
Evidentiary record before the Board of Veterans' Appeals.

        

Applicability of Amendment

Amendment of analysis by section 2(q)(2), (s)(2), (u)(3), (w)(3) of Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims. See 2017 Amendment note below.

Amendments

2017Pub. L. 115–55, §2(q)(2), (s)(2), (u)(3), (w)(3), Aug. 23, 2017, 131 Stat. 1112, 1113, 1115, substituted "Filing of appeal" for "Filing of notice of disagreement and appeal" in item 7105, struck out items 7106 "Administrative appeals" and 7109 "Independent medical opinions", and added item 7113.

2003Pub. L. 108–183, title VII, §707(b)(2), Dec. 16, 2003, 117 Stat. 2673, added item 7112.

1997Pub. L. 105–111, §1(b)(2), Nov. 21, 1997, 111 Stat. 2272, added item 7111.

1994Pub. L. 103–446, title II, §201(a)(2), Nov. 2, 1994, 108 Stat. 4656, added item 7101A.

Pub. L. 103–271, §§6(b), 7(a)(2), (b)(3), July 1, 1994, 108 Stat. 742, 743, substituted "Reconsideration; correction of obvious errors" for "Determinations by the Board" in item 7103, substituted "Appeals: dockets; hearings" for "Docketing of appeals" in item 7107, and struck out item 7110 "Traveling sections".

1991Pub. L. 102–40, title IV, §402(c)(1), May 7, 1991, 105 Stat. 239, renumbered items 4001 to 4010 as 7101 to 7110, respectively.

1988Pub. L. 100–687, div. A, title II, §207(b), Nov. 18, 1988, 102 Stat. 4112, added item 4010.

1962Pub. L. 87–671, §3, Sept. 19, 1962, 76 Stat. 557, added item 4009.

Pub. L. 87–666, §2, Sept. 19, 1962, 76 Stat. 554, added item 4005A, and substituted "Filing of notice of disagreement and appeal" for "Applications for review on appeal" in item 4005, "Administrative appeals" for "Docketing of appeals" in item 4006, and "Docketing of appeals" for "Simultaneously contested claims" in item 4007.

§7101. Composition of Board of Veterans' Appeals

(a) There is in the Department a Board of Veterans' Appeals (hereinafter in this chapter referred to as the "Board"). The Board is under the administrative control and supervision of a chairman directly responsible to the Secretary. The Board shall consist of a Chairman, a Vice Chairman, and such number of members as may be found necessary in order to conduct hearings and dispose of appeals properly before the Board in a timely manner. The Board shall have such other professional, administrative, clerical, and stenographic personnel as are necessary in conducting hearings and considering and disposing of appeals properly before the Board. The Board shall have sufficient personnel under the preceding sentence to enable the Board to conduct hearings and consider and dispose of appeals properly before the Board in a timely manner.

(b)(1) The Chairman shall be appointed by the President, by and with the advice and consent of the Senate, for a term of six years. The Chairman shall be subject to the same ethical and legal limitations and restrictions concerning involvement in political activities as apply to judges of the United States Court of Appeals for Veterans Claims.

(2) The Chairman may be removed by the President for misconduct, inefficiency, neglect of duty, or engaging in the practice of law or for physical or mental disability which, in the opinion of the President, prevents the proper execution of the Chairman's duties. The Chairman may not be removed from office by the President on any other grounds. Any such removal may only be made after notice and opportunity for hearing.

(3) The Chairman may be appointed under this subsection to more than one term. If, upon the expiration of the term of office for which the Chairman was appointed, the position of Chairman would become vacant, the individual serving as Chairman may, with the approval of the Secretary, continue to serve as Chairman until either appointed to another term or a successor is appointed, but not beyond the end of the Congress during which the term of office expired.

(4) The Secretary shall designate one member of the Board as Vice Chairman. The Vice Chairman shall perform such functions as the Chairman may specify. Such member shall serve as Vice Chairman at the pleasure of the Secretary.

(c)(1)(A) The Chairman may from time to time designate one or more employees of the Department to serve as acting members of the Board. Except as provided in subparagraph (B), any such designation shall be for a period not to exceed 90 days, as determined by the Chairman.

(B) An individual designated as an acting member of the Board may continue to serve as an acting member of the Board in the making of any determination on a proceeding for which the individual was designated as an acting member of the Board, notwithstanding the termination of the period of designation of the individual as an acting member of the Board under subparagraph (A) or (C).

(C) An individual may not serve as an acting member of the Board for more than 270 days during any one-year period.

(D) At no time may the number of acting members exceed 20 percent of the total of the number of Board members and acting Board members combined.

(2) In each annual report to the Congress under section 529 of this title, the Secretary shall provide detailed descriptions of the activities undertaken and plans made in the fiscal year for which the report is made with respect to the authority provided by paragraph (1) of this subsection. In each such report, the Secretary shall indicate, in terms of full-time employee equivalents, the number of acting members of the Board designated under such paragraph (1) during the year for which the report is made.

(d)(1) After the end of each fiscal year, the Chairman shall prepare a report on the activities of the Board during that fiscal year and the projected activities of the Board for the fiscal year during which the report is prepared and the next fiscal year. Such report shall be included in the documents providing detailed information on the budget for the Department that the Secretary submits to the Congress in conjunction with the President's budget submission for any fiscal year pursuant to section 1105 of title 31.

(2) Each such report shall include, with respect to the preceding fiscal year, information specifying—

(A) the number of cases appealed to the Board during that year;

(B) the number of cases pending before the Board at the beginning and at the end of that year;

(C) the number of such cases which were filed during each of the 36 months preceding the current fiscal year;

(D) the average length of time a case was before the Board between the time of the filing of an appeal and the disposition during the preceding fiscal year;

(E) the number of members of the Board at the end of the year and the number of professional, administrative, clerical, stenographic, and other personnel employed by the Board at the end of the preceding fiscal year; and

(F) the number of employees of the Department designated under subsection (c)(1) to serve as acting members of the Board during that year and the number of cases in which each such member participated during that year.


(3) The projections in each such report for the current fiscal year and for the next fiscal year shall include (for each such year)—

(A) an estimate of the number of cases to be appealed to the Board; and

(B) an evaluation of the ability of the Board (based on existing and projected personnel levels) to ensure timely disposition of such appeals as required by section 7101(a) of this title.


(e) A performance incentive that is authorized by law for officers and employees of the Federal Government may be awarded to a member of the Board (including an acting member) by reason of that member's service on the Board only if the Chairman of the Board determines that such member should be awarded that incentive. A determination by the Chairman for such purpose shall be made taking into consideration the quality of performance of the Board member.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1240, §4001; Pub. L. 98–223, title II, §208(a)–(c), Mar. 2, 1984, 98 Stat. 43, 44; Pub. L. 100–687, div. A, title II, §§201(a), 202(b), 208, 209, Nov. 18, 1988, 102 Stat. 4109, 4110, 4112; renumbered §7101 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, §14(e)(2), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, §§2(c)(3), 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 402, 404, 405; Pub. L. 103–271, §§2–5, July 1, 1994, 108 Stat. 740, 741; Pub. L. 103–446, title II, §§201(d), 203, Nov. 2, 1994, 108 Stat. 4657; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–14, §8(a)(16), June 5, 2001, 115 Stat. 35.)

Amendments

2001—Subsec. (a). Pub. L. 107–14 substituted "hereinafter" for "hereafter".

1998—Subsec. (b)(1). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1994—Subsec. (a). Pub. L. 103–271, §2, struck out "(not more than 65)" after "such number".

Subsec. (b). Pub. L. 103–446, §201(d)(1), (2), designated as par. (2) the text in par. (1) beginning "The Chairman may be removed" and struck out former par. (2) which read as follows:

"(2)(A) The other members of the Board (including the Vice Chairman) shall be appointed by the Secretary, with the approval of the President, based upon recommendations of the Chairman. Each such member shall be appointed for a term of nine years.

"(B) A member of the Board (other than the Chairman) may be removed by the Secretary upon the recommendation of the Chairman. In the case of a removal that would be covered by section 7521 of title 5 in the case of an administrative law judge, a removal of a member of the Board under this paragraph shall be carried out subject to the same requirements as apply to removal of an administrative law judge under that section. Section 554(a)(2) of title 5 shall not apply to a removal action under this subparagraph. In such a removal action, a member shall have the rights set out in section 7513(b) of such title."

Subsec. (b)(1). Pub. L. 103–271, §3, inserted after first sentence "The Chairman shall be subject to the same ethical and legal limitations and restrictions concerning involvement in political activities as apply to judges of the United States Court of Veterans Appeals."

Subsec. (b)(3). Pub. L. 103–446, §§201(d)(3), 203, substituted "The Chairman" for "Members (including the Chairman)" and inserted at end "If, upon the expiration of the term of office for which the Chairman was appointed, the position of Chairman would become vacant, the individual serving as Chairman may, with the approval of the Secretary, continue to serve as Chairman until either appointed to another term or a successor is appointed, but not beyond the end of the Congress during which the term of office expired."

Subsec. (c)(1). Pub. L. 103–271, §4(a)(1), added par. (1) and struck out former par. (1) which read as follows: "Subject to paragraph (2) of this subsection, the Chairman may from time to time designate employees of the Department to serve as temporary members of the Board. Any such designation shall be for a period of not to exceed one year, as determined by the Chairman. An individual may not serve as a temporary member of the Board for more than 24 months during any 48-month period."

Subsec. (c)(2), (3). Pub. L. 103–271, §4(a)(2)–(4), redesignated par. (3) as (2), substituted "the number of acting members of the Board designated under such paragraph (1) during the year for which the report is made." for "the number of temporary Board members designated under this subsection and the number of acting Board members designated under section 7102(a)(2)(A)(ii) of this title during the year for which the report is made.", and struck out former par. (2) which read as follows: "Designation under paragraph (1) of this subsection of an individual as a temporary member of the Board may not be made when there are fewer than 65 members of the Board."

Subsec. (d)(2)(F). Pub. L. 103–271, §5, added subpar. (F).

Subsec. (d)(3)(B). Pub. L. 103–271, §4(b)(2), substituted "section 7101(a)" for "section 7103(d)".

Subsec. (e). Pub. L. 103–271, §4(b)(1), substituted "an acting member" for "a temporary or acting member".

1991Pub. L. 102–40, §402(b)(1), renumbered section 4001 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Pub. L. 102–54 amended subsec. (a) as in effect immediately before the enactment of Pub. L. 102–40 by substituting "There is" for "There shall be" and ". The Board is under the administrative" for "under the administrative".

Subsec. (b)(2), (4). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" wherever appearing.

Subsec. (c)(1). Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Subsec. (c)(3). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places.

Pub. L. 102–83, §2(c)(3), substituted "section 529" for "section 214".

Pub. L. 102–40, §402(d)(1), substituted "7102(a)(2)(A)(ii)" for "4002(a)(2)(A)(ii)".

Subsec. (d)(1). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Subsec. (d)(3)(B). Pub. L. 102–40, §402(d)(1), substituted "7103(d)" for "4003(d)".

1988—Subsec. (a). Pub. L. 100–687, §202(b), inserted "and" after "Vice Chairman," substituted "necessary in order to conduct hearings and dispose of appeals properly before the Board in a timely manner. The Board shall have" for "necessary, and", and inserted provisions which required that Board have sufficient personnel to conduct hearings and consider and dispose of appeals.

Subsec. (b). Pub. L. 100–687, §201(a), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "Members of the Board (including the Chairman and Vice Chairman) shall be appointed by the Administrator with the approval of the President."

Subsec. (d). Pub. L. 100–687, §208, added subsec. (d).

Subsec. (e). Pub. L. 100–687, §209, added subsec. (e).

1984—Subsec. (a). Pub. L. 98–223, §208(a), (c), substituted "65" for "fifty" and struck out "associate" before "members".

Subsec. (c). Pub. L. 98–223, §208(b), added subsec. (c).

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Effective Date of 1988 Amendment

Amendment by section 201(a) of Pub. L. 100–687 effective Feb. 1, 1989, amendment by section 202(b) of Pub. L. 100–687 effective Jan. 1, 1989, and amendment by sections 208 and 209 of Pub. L. 100–687 effective Nov. 18, 1988, see section 401(b)–(d) of Pub. L. 100–687, set out as an Effective Date note under section 7251 of this title.

Board of Veterans' Appeals

Pub. L. 100–687, div. A, title II, §201(c), (d), Nov. 18, 1988, 102 Stat. 4109, 4110, provided that:

"(c) Transition to New Board.—(1) Appointments of members of the Board of Veterans' Appeals under subsection (b)(2) of section 4001 [now 7101] of title 38, United States Code (as amended by subsection (a)), may not be made until a Chairman is appointed under subsection (b)(1) of that section.

"(2) An individual who is serving as a member of the Board on the date of the enactment of this Act [Nov. 18, 1988] may continue to serve as a member until the earlier of—

"(A) the date on which the individual's successor (as designated by the Administrator) is appointed under subsection (b)(2) of that section, or

"(B) the end of the 180-day period beginning on the day after the date on which the Chairman is appointed under subsection (b)(1) of such section.

"(d) Initial Terms of Office.—Notwithstanding the second sentence of section 4001(b)(2) [now 7101(b)(2)] of title 38, United States Code (as amended by subsection (a)), specifying the term for which members of the Board of Veterans' Appeals shall be appointed, of the members first appointed under that section—

"(A) 22 shall be appointed for a term of three years;

"(B) 22 shall be appointed for a term of six years; and

"(C) 22 shall be appointed for a term of nine years,

as determined by the Administrator [now Secretary] at the time of the initial appointments."

§7101A. Members of Board: appointment; pay; performance review

(a)(1) The members of the Board of Veterans' Appeals other than the Chairman (and including the Vice Chairman) shall be appointed by the Secretary, with the approval of the President, based upon recommendations of the Chairman.

(2) Each member of the Board shall be a member in good standing of the bar of a State.

(b) Members of the Board (other than the Chairman and any member of the Board who is a member of the Senior Executive Service) shall, in accordance with regulations prescribed by the Secretary, be paid basic pay at rates equivalent to the rates payable under section 5372 of title 5.

(c)(1)(A) The Chairman shall establish a panel to review the performance of members of the Board. The panel shall be comprised of the Chairman and two other members of the Board (other than the Vice Chairman). The Chairman shall periodically rotate membership on the panel so as to ensure that each member of the Board (other than the Vice Chairman) serves as a member of the panel for and within a reasonable period.

(B) Not less than one year after the job performance standards under subsection (f) are initially established, and not less often than once every three years thereafter, the performance review panel shall determine, with respect to each member of the Board (other than the Chairman or a member who is a member of the Senior Executive Service), whether that member's job performance as a member of the Board meets the performance standards for a member of the Board established under subsection (f). Each such determination shall be in writing.

(2) If the determination of the performance review panel in any case is that the member's job performance as a member of the Board meets the performance standards for a member of the Board established under subsection (f), the Chairman shall recertify the member's appointment as a member of the Board.

(3) If the determination of the performance review panel in any case is that the member's job performance does not meet the performance standards for a member of the Board established under subsection (f), the Chairman shall, based upon the individual circumstances, either—

(A) grant the member a conditional recertification; or

(B) recommend to the Secretary that the member be noncertified.


(4) In the case of a member of the Board who is granted a conditional recertification under paragraph (3)(A) or (5)(A), the performance review panel shall review the member's job performance record and make a further determination under paragraph (1) concerning that member not later than one year after the date of the conditional recertification. If the determination of the performance review panel at that time is that the member's job performance as a member of the Board still does not meet the performance standards for a member of the Board established under subsection (f), the Chairman shall recommend to the Secretary that the member be noncertified.

(5) In a case in which the Chairman recommends to the Secretary under paragraph (3) or (4) that a member be noncertified, the Secretary, after considering the recommendation of the Chairman, may either—

(A) grant the member a conditional recertification; or

(B) determine that the member should be noncertified.


(d)(1) If the Secretary, based upon the recommendation of the Chairman, determines that a member of the Board should be noncertified, that member's appointment as a member of the Board shall be terminated and that member shall be removed from the Board.

(2)(A) Upon removal from the Board under paragraph (1) of a member of the Board who before appointment to the Board served as an attorney in the civil service, the Secretary shall appoint that member to an attorney position at the Board, if the removed member so requests. If the removed member served in an attorney position at the Board immediately before appointment to the Board, appointment to an attorney position under this paragraph shall be in the grade and step held by the removed member immediately before such appointment to the Board.

(B) The Secretary is not required to make an appointment to an attorney position under this paragraph if the Secretary determines that the member of the Board removed under paragraph (1) is not qualified for the position.

(e)(1) A member of the Board (other than the Chairman or a member of the Senior Executive Service) may be removed as a member of the Board by reason of job performance only as provided in subsections (c) and (d). Such a member may be removed by the Secretary, upon the recommendation of the Chairman, for any other reason as determined by the Secretary.

(2) In the case of a removal of a member under this section for a reason other than job performance that would be covered by section 7521 of title 5 in the case of an administrative law judge, the removal of the member of the Board shall be carried out subject to the same requirements as apply to removal of an administrative law judge under that section. Section 554(a)(2) of title 5 shall not apply to a removal action under this subsection. In such a removal action, a member shall have the rights set out in section 7513(b) of that title.

(f) The Chairman, subject to the approval of the Secretary, shall establish standards for the performance of the job of a member of the Board (other than the Chairman or a member of the Senior Executive Service). Those standards shall establish objective and fair criteria for evaluation of the job performance of a member of the Board.

(g) The Secretary shall prescribe procedures for the administration of this section, including deadlines and time schedules for different actions under this section.

(Added Pub. L. 103–446, title II, §201(a)(1), Nov. 2, 1994, 108 Stat. 4655; amended Pub. L. 105–368, title X, §1002, Nov. 11, 1998, 112 Stat. 3363.)

Amendments

1998—Subsec. (a). Pub. L. 105–368, §1002(a), designated existing provisions as par. (1) and added par. (2).

Subsec. (d)(2). Pub. L. 105–368, §1002(b), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Upon removal from the Board under paragraph (1), a member of the Board (other than the Chairman) who was a career or career-conditional employee in the civil service before commencement of service as a member of the Board shall revert to the civil service grade and series held by the member immediately before the appointment of the member to the Board."

Effective Date

Pub. L. 103–446, title II, §201(c), Nov. 2, 1994, 108 Stat. 4657, provided that: "Section 7101A(b) of title 38, United States Code, as added by subsection (a), shall take effect on the first day of the first pay period beginning after December 31, 1994."

Save Pay Provision

Pub. L. 103–446, title II, §201(b), Nov. 2, 1994, 108 Stat. 4656, provided that: "The rate of basic pay payable to an individual who is a member of the Board of Veterans' Appeals on the date of the enactment of this Act [Nov. 2, 1994] may not be reduced by reason of the amendments made by this section [enacting this section and amending section 7101 of this title] to a rate below the rate payable to such individual on the day before such date."

Deadline for Establishment of Performance Evaluation Criteria for Board Members

Pub. L. 103–446, title II, §202, Nov. 2, 1994, 108 Stat. 4657, provided that:

"(a) Deadline.—The job performance standards required to be established by section 7101A(f) of title 38, United States Code, as added by section 201(a), shall be established not later than 90 days after the date of the enactment of this Act [Nov. 2, 1994].

"(b) Submission to Congressional Committees.—Not later than the date on which the standards referred to in subsection (a) take effect, the Secretary of Veterans Affairs shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives a report describing the standards established by the Chairman of the Board of Veterans' Appeals."

§7102. Assignment of members of Board

(a) A proceeding instituted before the Board may be assigned to an individual member of the Board or to a panel of not less than three members of the Board. A member or panel assigned a proceeding shall make a determination thereon, including any motion filed in connection therewith. The member or panel, as the case may be, shall make a report under section 7104(d) of this title on any such determination, which report shall constitute the final disposition of the proceeding by the member or panel.

(b) A proceeding may not be assigned to the Chairman as an individual member. The Chairman may participate in a proceeding assigned to a panel or in a reconsideration assigned to a panel of members.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1241, §4002; Pub. L. 98–223, title II, §208(c), (d), Mar. 2, 1984, 98 Stat. 44; renumbered §7102 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(a)(3), (4), Aug. 6, 1991, 105 Stat. 404; Pub. L. 103–271, §6(a), July 1, 1994, 108 Stat. 741.)

Amendments

1994Pub. L. 103–271 amended section generally, substituting present provisions for provisions authorizing Chairman to divide Board into sections of three members and to assign proceedings thereto, and provisions relating to assignment where section is composed of fewer than three members, limiting annual period of service, prohibiting more than one member to be a temporary or acting member, and relating to hearing docket and report of determination.

1991Pub. L. 102–40, §402(b)(1), renumbered section 4002 of this title as this section.

Subsec. (a)(2)(A)(ii). Pub. L. 102–83 substituted "Department" for "Veterans' Administration".

Subsec. (a)(3). Pub. L. 102–40, §402(d)(1), substituted "7101(c)" for "4001(c)".

1984—Subsec. (a)(1). Pub. L. 98–223, §208(d)(1), designated provision authorizing the Chairman from time to time to divide the Board into sections of three members, assign members to the Board thereto, and designated the chief thereof, as par. (1).

Subsec. (a)(2). Pub. L. 98–223, §208(d)(2), designated provision relating to authority of the Chairman in the case where a section is composed of fewer than three members as a result of absence, vacancy, or inability of a member to serve as subpar. (A), and in subpar. (A) as so designated, inserted provision authorizing the Chairman to designate an employee of the Veterans' Administration to serve as an acting member of the Board on such section for a period of not to exceed 90 days, and added subpar. (B).

Subsec. (a)(3). Pub. L. 98–223, §208(d)(2), added par. (3).

Subsec. (b). Pub. L. 98–223, §208(d)(3), designated provision relating to the maintenance of a hearing docket and the holding of formal recorded hearings upon which a final determination will be made as subsec. (b).

Pub. L. 98–223, §208(c), struck out "associate" before "member" in two places.

Subsec. (c). Pub. L. 98–223, §208(d)(4), designated provision relating to the section making a determination on any proceeding or motion in connection therewith assigned to the section by the Board and making a report on such determination, which report constitutes its final disposition of the proceeding, as subsec. (c).

§7103. Reconsideration; correction of obvious errors

(a) The decision of the Board determining a matter under section 7102 of this title is final unless the Chairman orders reconsideration of the decision in accordance with subsection (b). Such an order may be made on the Chairman's initiative or upon motion of the claimant.

(b)(1) Upon the order of the Chairman for reconsideration of the decision in a case, the case shall be referred—

(A) in the case of a matter originally decided by a single member of the Board, to a panel of not less than three members of the Board; or

(B) in the case of a matter originally decided by a panel of members of the Board, to an enlarged panel of the Board.


(2) A panel referred to in paragraph (1) may not include the member, or any member of the panel, that made the decision subject to reconsideration.

(3) A panel reconsidering a case under this subsection shall render its decision after reviewing the entire record before the Board. The decision of the panel shall be made by a majority vote of the members of the panel. The decision of the panel shall constitute the final decision of the Board.

(c) The Board on its own motion may correct an obvious error in the record, without regard to whether there has been a motion or order for reconsideration.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1241, §4003; Pub. L. 100–687, div. A, title II, §202(a), Nov. 18, 1988, 102 Stat. 4110; renumbered §7103, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 103–271, §6(a), July 1, 1994, 108 Stat. 741; Pub. L. 115–55, §2(o), Aug. 23, 2017, 131 Stat. 1111.)

Applicability of Amendment

Amendment of section by section 2(o) of Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims. See 2017 Amendment below.

Amendments

2017—Subsec. (b)(1). Pub. L. 115–55 substituted "decided" for "heard" in subpars. (A) and (B).

1994Pub. L. 103–271 amended section generally. Prior to amendment, text read as follows:

"(a) Decisions by a section of the Board shall be made by a majority of the members of the section. The decision of the section is final unless the Chairman orders reconsideration of the case.

"(b) If the Chairman orders reconsideration in a case, the case shall upon reconsideration be heard by an expanded section of the Board. When a case is heard by an expanded section of the Board after such a motion for reconsideration, the decision of a majority of the members of the expanded section shall constitute the final decision of the Board.

"(c) Notwithstanding subsections (a) and (b) of this section, the Board on its own motion may correct an obvious error in the record."

1991Pub. L. 102–40 renumbered section 4003 of this title as this section.

1988Pub. L. 100–687, in amending section generally, added subsec. (a), struck out former subsec. (a) which provided that determination of section, when unanimous, be final determination of Board, added subsec. (b), struck out former subsec. (b) which provided that when there is disagreement among members of section, concurrence of Chairman with majority of members of section shall constitute final determination of Board, and added subsec. (c).

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title.

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–687 effective Jan. 1, 1989, see section 401(d) of Pub. L. 100–687, set out as an Effective Date note under section 7251 of this title.

§7104. Jurisdiction of the Board

(a) All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.

(b) Except as provided in section 5108 of this title, when a claim is disallowed by the Board, the claim may not thereafter be readjudicated and allowed and a claim based upon the same factual basis may not be considered.

(c) The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department.

(d) Each decision of the Board shall include—

(1) a written statement of the Board's findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record;

(2) a general statement—

(A) reflecting whether evidence was not considered in making the decision because the evidence was received at a time when not permitted under section 7113 of this title; and

(B) noting such options as may be available for having the evidence considered by the Department; and


(3) an order granting appropriate relief or denying relief.


(e)(1) After reaching a decision on a case, the Board shall promptly mail a copy of its written decision to the claimant at the last known address of the claimant.

(2) If the claimant has an authorized representative, the Board shall—

(A) mail a copy of its written decision to the authorized representative at the last known address of the authorized representative; or

(B) send a copy of its written decision to the authorized representative by any means reasonably likely to provide the authorized representative with a copy of the decision within the same time a copy would be expected to reach the authorized representative if sent by first-class mail.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1241, §4004; Pub. L. 87–97, §1, July 20, 1961, 75 Stat. 215; Pub. L. 100–687, div. A, title I, §101(b), title II, §§203(a), 204, 205, Nov. 18, 1988, 102 Stat. 4106, 4110, 4111; renumbered §7104 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, §14(g)(2), June 13, 1991, 105 Stat. 288; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), (c), Aug. 6, 1991, 105 Stat. 404–406; Pub. L. 103–271, §§7(b)(1), 8, July 1, 1994, 108 Stat. 743; Pub. L. 104–275, title V, §509, Oct. 9, 1996, 110 Stat. 3344; Pub. L. 115–55, §2(p), (w)(2), Aug. 23, 2017, 131 Stat. 1111, 1114.)

Applicability of Amendment

Amendment of section by section 2(p), (w)(2) of Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims. See 2017 Amendment notes below.

Amendments

2017—Subsec. (b). Pub. L. 115–55, §2(p), substituted "readjudicated" for "reopened".

Subsec. (d)(2), (3). Pub. L. 115–55, §2(w)(2), added par. (2) and redesignated former par. (2) as (3).

1996—Subsec. (e). Pub. L. 104–275 amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: "After reaching a decision in a case, the Board shall promptly mail a copy of its written decision to the claimant and the claimant's authorized representative (if any) at the last known address of the claimant and at the last known address of such representative (if any)."

1994—Subsec. (a). Pub. L. 103–271, §8, substituted "511(a)" for "211(a)".

Pub. L. 103–271, §7(b)(1), struck out after second sentence "The Board shall decide any such appeal only after affording the claimant an opportunity for a hearing."

1991Pub. L. 102–40, §402(b)(1), renumbered section 4004 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places.

Pub. L. 102–54 made a technical correction to Pub. L. 100–687, §101(b). See 1988 Amendment note below.

Subsec. (b). Pub. L. 102–40, §402(d)(1), substituted "5108" for "3008".

Subsec. (c). Pub. L. 102–83, §4(c), substituted "chief legal officer of the Department" for "chief law officer".

Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

1988—Subsec. (a). Pub. L. 100–687, §101(b), as amended by Pub. L. 102–54, substituted "All questions in a matter which under section 211(a) of this title is subject to decision by the Administrator" for "All questions on claims involving benefits under the laws administered by the Veterans' Administration".

Pub. L. 100–687, §203(a), inserted at end "The Board shall decide any such appeal only after affording the claimant an opportunity for a hearing. Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation."

Subsec. (b). Pub. L. 100–687, §204, amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "When a claim is disallowed by the Board, it may not thereafter be reopened and allowed, and no claim based upon the same factual basis shall be considered; however, where subsequent to disallowance of a claim, new and material evidence in the form of official reports from the proper service department is secured, the Board may authorize the reopening of the claim and review of the former decision."

Subsecs. (d), (e). Pub. L. 100–687, §205, added subsecs. (d) and (e) and struck out former subsec. (d) which read as follows: "The decisions of the Board shall be in writing and shall contain findings of fact and conclusions of law separately stated."

1961—Subsec. (d). Pub. L. 87–97 added subsec. (d).

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title.

Effective Date of 1991 Amendment

Pub. L. 102–54, §14(g)(2), June 13, 1991, 105 Stat. 288, provided that the amendment made by that section is effective Nov. 18, 1988.

Effective Date of 1988 Amendment

Amendment by sections 101(b) and 204 of Pub. L. 100–687 effective Sept. 1, 1989, and amendment by sections 203(a) and 205 of Pub. L. 100–687 effective Jan. 1, 1989, see section 401(a), (d) of Pub. L. 100–687, as amended, set out as an Effective Date note under section 7251 of this title.

Effective Date of 1961 Amendment

Pub. L. 87–97, §2, July 20, 1961, 75 Stat. 215, provided that: "The amendment made by this Act [amending this section] shall take effect as of January 1, 1962."

§7105. Filing of appeal

(a) Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary. Each appellant will be accorded hearing and representation rights pursuant to the provisions of this chapter and regulations of the Secretary.

(b)(1)(A) Except in the case of simultaneously contested claims, a notice of disagreement shall be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction pursuant to section 5104, 5104B, or 5108 of this title.

(B) A notice of disagreement postmarked before the expiration of the one-year period shall be accepted as timely filed.

(C) A question as to timeliness or adequacy of the notice of disagreement shall be decided by the Board.

(2)(A) Notices of disagreement shall be in writing, shall identify the specific determination with which the claimant disagrees, and may be filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian.

(B) Not more than one recognized organization, attorney, or agent may be recognized at any one time in the prosecution of a claim.

(C) Notices of disagreement shall be filed with the Board.

(3) The notice of disagreement shall indicate whether the claimant requests—

(A) a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(b) of this title;

(B) an opportunity to submit additional evidence without a hearing before the Board, which shall include an opportunity to submit evidence in accordance with section 7113(c) of this title; or

(C) a review by the Board without a hearing or the submittal of additional evidence.


(4) The Secretary shall develop a policy to permit a claimant to modify the information identified in the notice of disagreement after the notice of disagreement has been filed under this section pursuant to such requirements as the Secretary may prescribe.

(c) If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or decision of the agency of original jurisdiction shall become final and the claim shall not thereafter be readjudicated or allowed, except—

(1) in the case of a readjudication or allowance pursuant to a higher-level review that was requested in accordance with section 5104B of this title;

(2) as may otherwise be provided by section 5108 of this title; or

(3) as may otherwise be provided in such regulations as are consistent with this title.


(d) The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.

(Added Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 553, §4005; amended Pub. L. 99–576, title VII, §701(85), Oct. 28, 1986, 100 Stat. 3298; Pub. L. 100–687, div. A, title II, §§203(b), 206, Nov. 18, 1988, 102 Stat. 4111; renumbered §7105 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 107–14, §8(a)(16), June 5, 2001, 115 Stat. 35; Pub. L. 112–154, title V, §501(a), Aug. 6, 2012, 126 Stat. 1190; Pub. L. 115–55, §2(q)(1), Aug. 23, 2017, 131 Stat. 1111.)

Applicability of Amendment

Amendment of section by section 2(q)(1) of Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims. See 2017 Amendment notes below.

Amendments

2017Pub. L. 115–55, §2(q)(1)(F), struck out "notice of disagreement and" before "appeal" in section catchline.

Subsec. (a). Pub. L. 115–55, §2(q)(1)(A), substituted "Appellate review shall be initiated by the filing of a notice of disagreement in the form prescribed by the Secretary." for "Appellate review will be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case is furnished as prescribed in this section."

Subsec. (b). Pub. L. 115–55, §2(q)(1)(B), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows:

"(1) Except in the case of simultaneously contested claims, notice of disagreement shall be filed within one year from the date of mailing of notice of the result of initial review or determination. Such notice, and appeals, must be in writing and be filed with the activity which entered the determination with which disagreement is expressed (hereinafter referred to as the "agency of original jurisdiction"). A notice of disagreement postmarked before the expiration of the one-year period will be accepted as timely filed.

"(2) Notices of disagreement, and appeals, must be in writing and may be filed by the claimant, the claimant's legal guardian, or such accredited representative, attorney, or authorized agent as may be selected by the claimant or legal guardian. Not more than one recognized organization, attorney, or agent will be recognized at any one time in the prosecution of a claim."

Subsec. (c). Pub. L. 115–55, §2(q)(1)(C), amended subsec. (c) generally. Prior to amendment, subsec. (c) read as follows: "If no notice of disagreement is filed in accordance with this chapter within the prescribed period, the action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title."

Subsec. (d). Pub. L. 115–55, §2(q)(1)(D), added subsec. (d) and struck out former subsec. (d) which related to development and review actions, statement of the case, and dismissal of appeal.

Subsec. (e). Pub. L. 115–55, §2(q)(1)(E), struck out subsec. (e) which read as follows:

"(1) If, either at the time or after the agency of original jurisdiction receives a substantive appeal, the claimant or the claimant's representative, if any, submits evidence to either the agency of original jurisdiction or the Board of Veterans' Appeals for consideration in connection with the issue or issues with which disagreement has been expressed, such evidence shall be subject to initial review by the Board unless the claimant or the claimant's representative, as the case may be, requests in writing that the agency of original jurisdiction initially review such evidence.

"(2) A request for review of evidence under paragraph (1) shall accompany the submittal of the evidence."

2012—Subsec. (e). Pub. L. 112–154 added subsec. (e).

2001—Subsec. (b)(1). Pub. L. 107–14 substituted "hereinafter" for "hereafter".

1991Pub. L. 102–40, §402(b)(1), renumbered section 4005 of this title as this section.

Subsec. (a). Pub. L. 102–83 substituted "Secretary" for "Administrator".

Subsec. (d)(2). Pub. L. 102–40, §402(d)(1), substituted "5701" for "3301".

1988—Subsec. (d)(1). Pub. L. 100–687, §206(a), substituted "shall prepare a statement of the case. A statement of the case shall include the following:" for "will prepare a statement of the case consisting of—", added subpars. (A) to (C), and struck out former subpars. (A) to (C) which read as follows:

"(A) A summary of the evidence in the case pertinent to the issue or issues with which disagreement has been expressed;

"(B) A citation or discussion of the pertinent law, regulations, and, where applicable, the provisions of the Schedule for Rating Disabilities;

"(C) The decision on such issue or issues and a summary of the reasons therefor."

Subsec. (d)(4). Pub. L. 100–687, §206(b), amended par. (4) generally. Prior to amendment, par. (4) read as follows: "The appellant will be presumed to be in agreement with any statement of fact contained in the statement of the case to which no exception is taken."

Subsec. (d)(5). Pub. L. 100–687, §203(b), struck out "will base its decision on the entire record and" after "of Veterans' Appeals".

1986—Subsec. (b)(2). Pub. L. 99–576, §701(85), substituted "the claimant's" for "his" and "the claimant or legal guardian" for "him".

Subsec. (d)(1), (3). Pub. L. 99–576, §701(85)(A), substituted "the claimant's" for "his".

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title.

Effective Date of 2012 Amendment

Pub. L. 112–154, title V, §501(b), Aug. 6, 2012, 126 Stat. 1190, provided that: "Subsection (e) of such section [38 U.S.C. 7105(e)], as added by subsection (a), shall take effect on the date that is 180 days after the date of the enactment of this Act [Aug. 6, 2012], and shall apply with respect to claims for which a substantive appeal is filed on or after the date that is 180 days after the date of the enactment of this Act."

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–687 effective Jan. 1, 1989, see section 401(d) of Pub. L. 100–687 set out as an Effective Date note under section 7251 of this title.

Effective Date

Pub. L. 87–666, §3, Sept. 19, 1962, 76 Stat. 554, provided that: "The amendments made by this Act [enacting sections 4005, 4005A, and 4006 [now 7105, 7105A, and 7106] of this title, redesignating former section 4006 as 4007 [now 7107] of this title, and repealing former sections 4005 and 4007 of this title] shall be effective January 1, 1963."

§7105A. Simultaneously contested claims

(a) In simultaneously contested claims where one is allowed and one rejected, the time allowed for the filing of a notice of disagreement shall be sixty days from the date notice of the adverse action is mailed. In such cases the agency of original jurisdiction shall promptly notify all parties in interest at the last known address of the action taken, expressly inviting attention to the fact that notice of disagreement will not be entertained unless filed within the sixty-day period prescribed by this subsection.

(b)(1) The substance of the notice of disagreement shall be communicated to the other party or parties in interest and a period of thirty days shall be allowed for filing a brief or argument in response thereto.

(2) Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice.

(Added Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 554, §4005A; renumbered §7105A and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 115–55, §2(r), Aug. 23, 2017, 131 Stat. 1112.)

Applicability of Amendment

Amendment of section by section 2(r) of Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims. See 2017 Amendment note below.

Prior Provisions

Provisions similar to those comprising this section were contained in former section 4007 of this title, prior to the general amendment of sections 4005 to 4007 by Pub. L. 87–666.

Amendments

2017—Subsec. (b). Pub. L. 115–55 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "Upon the filing of a notice of disagreement, all parties in interest will be furnished with a statement of the case in the same manner as is prescribed in section 7105. The party in interest who filed a notice of disagreement will be allowed thirty days from the date of mailing of such statement of the case in which to file a formal appeal. Extension of time may be granted for good cause shown but with consideration to the interests of the other parties involved. The substance of the appeal will be communicated to the other party or parties in interest and a period of thirty days will be allowed for filing a brief or argument in answer thereto. Such notice shall be forwarded to the last known address of record of the parties concerned, and such action shall constitute sufficient evidence of notice."

1991Pub. L. 102–40 renumbered section 4005A of this title as this section and substituted "7105" for "4005" in subsec. (b).

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title.

Effective Date

Section effective Jan. 1, 1963, see section 3 of Pub. L. 87–666, set out as a note under section 7105 of this title.

[§7106. Repealed. Pub. L. 115–55, §2(s)(1), Aug. 23, 2017, 131 Stat. 1112]

Section, added Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 554, §4006; renumbered §7106 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405, related to application for administrative appeals.

Provisions similar to those comprising this section were contained in subsec. (c)(2) of former section 4005 of this title, prior to the general amendment of sections 4005 to 4007 by Pub. L. 87–666.

Effective Date of Repeal

Repeal applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as an Effective Date of 2017 Amendment note under section 101 of this title.

§7107. Appeals: dockets; hearings

(a) Dockets.—(1) Subject to paragraph (2), the Board shall maintain at least two separate dockets.

(2) The Board may not maintain more than two separate dockets unless the Board notifies the Committee on Veterans' Affairs of the Senate and the Committee on Veterans' Affairs of the House of Representatives of any additional docket, including a justification for maintaining such additional docket.

(3)(A) The Board may assign to each docket maintained under paragraph (1) such cases as the Board considers appropriate, except that cases described in clause (i) of subparagraph (B) may not be assigned to any docket to which cases described in clause (ii) of such paragraph are assigned.

(B) Cases described in this paragraph are the following:

(i) Cases in which no Board hearing is requested.

(ii) Cases in which a Board hearing is requested in the notice of disagreement.


(4) Except as provided in subsection (b), each case before the Board will be decided in regular order according to its respective place on the docket to which it is assigned by the Board.

(b) Advancement on the Docket.—(1) A case on one of the dockets of the Board maintained under subsection (a) may, for cause shown, be advanced on motion for earlier consideration and determination.

(2) Any such motion shall set forth succinctly the grounds upon which the motion is based.

(3) Such a motion may be granted only—

(A) if the case involves interpretation of law of general application affecting other claims;

(B) if the appellant is seriously ill or is under severe financial hardship; or

(C) for other sufficient cause shown.


(c) Manner and Scheduling of Hearings for Cases on a Docket That May Include a Hearing.—(1) For cases on a docket maintained by the Board under subsection (a) that may include a hearing, in which a hearing is requested in the notice of disagreement, the Board shall notify the appellant whether a Board hearing will be held—

(A) at its principal location; or

(B) by picture and voice transmission at a facility of the Department where the Secretary has provided suitable facilities and equipment to conduct such hearings.


(2)(A) Upon notification of a Board hearing at the Board's principal location as described in subparagraph (A) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (B) of such paragraph. If so requested, the Board shall grant such request.

(B) Upon notification of a Board hearing by picture and voice transmission as described in subparagraph (B) of paragraph (1), the appellant may alternatively request a hearing as described in subparagraph (A) of such paragraph. If so requested, the Board shall grant such request.

(d) Screening of Cases.—Nothing in this section shall be construed to preclude the screening of cases for purposes of—

(1) determining the adequacy of the record for decisional purposes; or

(2) the development, or attempted development, of a record found to be inadequate for decisional purposes.


(e) Policy on Changing Dockets.—The Secretary shall develop and implement a policy allowing an appellant to move the appellant's case from one docket to another docket.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1242, §4006; renumbered §4007, Pub. L. 87–666, §1, Sept. 19, 1962, 76 Stat. 553; renumbered §7107, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 103–271, §7(a)(1), July 1, 1994, 108 Stat. 742; Pub. L. 103–446, title III, §303, Nov. 2, 1994, 108 Stat. 4658; Pub. L. 105–368, title X, §1003, Nov. 11, 1998, 112 Stat. 3363; Pub. L. 114–315, title I, §102, Dec. 16, 2016, 130 Stat. 1540; Pub. L. 115–55, §2(t), Aug. 23, 2017, 131 Stat. 1112.)

Applicability of Amendment

Amendment of section by section 2(t) of Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims. See 2017 Amendment note below.

Amendments

2017Pub. L. 115–55 amended section generally. Prior to amendment, section consisted of subsecs. (a) to (f) relating to order of cases, opportunity for hearing, maintenance of hearing docket and holding of hearings by the Board, location and type of hearings, hearings conducted by electronic or other means, and screening of cases, respectively.

2016—Subsec. (d)(1). Pub. L. 114–315, §102(1), amended par. (1) generally. Prior to amendment, par. (1) read as follows: "An appellant may request that a hearing before the Board be held at its principal location or at a facility of the Department located within the area served by a regional office of the Department."

Subsec. (e)(2). Pub. L. 114–315, §102(2), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "When such facilities and equipment are available, the Chairman may afford the appellant an opportunity to participate in a hearing before the Board through the use of such facilities and equipment in lieu of a hearing held by personally appearing before a Board member or panel as provided in subsection (d). Any such hearing shall be conducted in the same manner as, and shall be considered the equivalent of, a personal hearing. If the appellant declines to participate in a hearing through the use of such facilities and equipment, the opportunity of the appellant to a hearing as provided in such subsection (d) shall not be affected."

1998—Subsec. (a)(1). Pub. L. 105–368, §1003(a)(1), inserted "in paragraphs (2) and (3) and" after "Except as provided".

Subsec. (a)(2). Pub. L. 105–368, §1003(a)(2), added second and third sentences and struck out former second sentence which read as follows: "Any such motion shall set forth succinctly the grounds upon which it is based and may not be granted unless the case involves interpretation of law of general application affecting other claims or for other sufficient cause shown."

Subsec. (a)(3). Pub. L. 105–368, §1003(a)(3), added par. (3).

Subsec. (d)(2). Pub. L. 105–368, §1003(b)(1), substituted "in accordance with the place of the case on the docket under subsection (a) relative to other cases on the docket for which hearings are scheduled to be held within that area." for "in the order in which requests for hearings within that area are received by the Department."

Subsec. (d)(3). Pub. L. 105–368, §1003(b)(2), added par. (3) and struck out former par. (3) which read as follows: "In a case in which the Secretary is aware that the appellant is seriously ill or is under severe financial hardship, a hearing may be scheduled at a time earlier than would be provided for under paragraph (2)."

1994Pub. L. 103–446 substituted "Except as provided in subsection (f), each case" for "Each case" in subsec. (a)(1) and added subsec. (f).

Pub. L. 103–271 amended section generally. Prior to amendment, text read as follows: "All cases received pursuant to application for review on appeal shall be considered and decided in regular order according to their places upon the docket; however, for cause shown a case may be advanced on motion for earlier consideration and determination. Every such motion shall set forth succinctly the grounds upon which it is based. No such motion shall be granted except in cases involving interpretation of law of general application affecting other claims, or for other sufficient cause shown."

1991Pub. L. 102–40 renumbered section 4007 of this title as this section.

1962Pub. L. 87–666 renumbered section 4006 of this title as this section.

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title.

§7108. Rejection of applications

An application for review on appeal shall not be entertained unless it is in conformity with this chapter.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1243, §4008; renumbered §7108, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238.)

Amendments

1991Pub. L. 102–40 renumbered section 4008 of this title as this section.

[§7109. Repealed. Pub. L. 115–55, §2(u)(1), Aug. 23, 2017, 131 Stat. 1113]

Section, added Pub. L. 87–671, §1, Sept. 19, 1962, 76 Stat. 557, §4009; amended Pub. L. 100–687, div. A, title I, §103(b), Nov. 18, 1988, 102 Stat. 4107; renumbered §7109, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405, related to advisory medical opinions from one or more independent medical experts who are not employees of the Department.

Effective Date of Repeal

Repeal applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as an Effective Date of 2017 Amendment note under section 101 of this title.

[§7110. Repealed. Pub. L. 103–271, §7(b)(2), July 1, 1994, 108 Stat. 743]

Section, added Pub. L. 100–687, div. A, title II, §207(a), Nov. 18, 1988, 102 Stat. 4111, §4010; renumbered §7110, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–83, §4(a)(3), (4), Aug. 6, 1991, 105 Stat. 404, authorized hearing before traveling sections of the Board.

§7111. Revision of decisions on grounds of clear and unmistakable error

(a) A decision by the Board is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.

(b) For the purposes of authorizing benefits, a rating or other adjudicative decision of the Board that constitutes a reversal or revision of a prior decision of the Board on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.

(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Board on the Board's own motion or upon request of the claimant.

(d) A request for revision of a decision of the Board based on clear and unmistakable error may be made at any time after that decision is made.

(e) Such a request shall be submitted directly to the Board and shall be decided by the Board on the merits.

(f) A claim filed with the Secretary that requests reversal or revision of a previous Board decision due to clear and unmistakable error shall be considered to be a request to the Board under this section, and the Secretary shall promptly transmit any such request to the Board for its consideration under this section.

(Added Pub. L. 105–111, §1(b)(1), Nov. 21, 1997, 111 Stat. 2271; amended Pub. L. 115–55, §2(v), Aug. 23, 2017, 131 Stat. 1113.)

Applicability of Amendment

Amendment of section by section 2(v) of Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims. See 2017 Amendment note below.

Amendments

2017—Subsec. (e). Pub. L. 115–55 struck out ", without referral to any adjudicative or hearing official acting on behalf of the Secretary" after "merits".

Effective Date of 2017 Amendment

Amendment by Pub. L. 115–55 applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as a note under section 101 of this title.

Effective Date

Section applicable to any determination made before, on, or after Nov. 21, 1997, see section 1(c)(1) of Pub. L. 105–111, set out as a note under section 5109A of this title.

§7112. Expedited treatment of remanded claims

The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Board of any claim that is remanded to the Secretary by the Court of Appeals for Veterans Claims.

(Added Pub. L. 108–183, title VII, §707(b)(1), Dec. 16, 2003, 117 Stat. 2673.)

§7113. Evidentiary record before the Board of Veterans' Appeals

(a) Cases With No Request for a Hearing or Additional Evidence.—For cases in which a hearing before the Board of Veterans' Appeals is not requested in the notice of disagreement and no request was made to submit evidence, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal.

(b) Cases With a Request for a Hearing.—(1) Except as provided in paragraph (2), for cases in which a hearing is requested in the notice of disagreement, the evidentiary record before the Board shall be limited to the evidence of record at the time of the decision of the agency of original jurisdiction on appeal.

(2) The evidentiary record before the Board for cases described in paragraph (1) shall include each of the following, which the Board shall consider in the first instance:

(A) Evidence submitted by the appellant and his or her representative, if any, at the Board hearing.

(B) Evidence submitted by the appellant and his or her representative, if any, within 90 days following the Board hearing.


(c) Cases With No Request for a Hearing and With a Request for Additional Evidence.—(1) Except as provided in paragraph (2), for cases in which a hearing is not requested in the notice of disagreement but an opportunity to submit evidence is requested, the evidentiary record before the Board shall be limited to the evidence considered by the agency of original jurisdiction in the decision on appeal.

(2) The evidentiary record before the Board for cases described in paragraph (1) shall include each of the following, which the Board shall consider in the first instance:

(A) Evidence submitted by the appellant and his or her representative, if any, with the notice of disagreement.

(B) Evidence submitted by the appellant and his or her representative, if any, within 90 days following receipt of the notice of disagreement.

(Added Pub. L. 115–55, §2(w)(1), Aug. 23, 2017, 131 Stat. 1114.)

Effective Date

Section applicable to all claims for which the Secretary of Veterans Affairs provides notice of a decision under section 5104 of this title on or after the later of 540 days after Aug. 23, 2017, or 30 days after the date on which the Secretary submits to Congress a certification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early applicability of the new appeals system to certain claims, see section 2(x) of Pub. L. 115–55, set out as an Effective Date of 2017 Amendment note under section 101 of this title.

CHAPTER 72—UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

SUBCHAPTER I—ORGANIZATION AND JURISDICTION

Sec.
7251.
Status.
7252.
Jurisdiction; finality of decisions.
7253.
Composition.
7254.
Organization.
7255.
Offices, duty stations, and residences.
7256.
Times and places of sessions.
7257.
Recall of retired judges.

        

SUBCHAPTER II—PROCEDURE

7261.
Scope of review.
7262.
Fee for filing appeals.
7263.
Representation of parties; fee agreements.
7264.
Rules of practice and procedure.
7265.
Contempt authority; assistance to the Court.
7266.
Notice of appeal.
7267.
Decisions.
7268.
Availability of proceedings.
7269.
Publication of decisions.

        

SUBCHAPTER III—MISCELLANEOUS PROVISIONS

7281.
Employees.
7282.
Budget and expenditures.
7283.
Disposition of fees.
7284.
Fee for transcript of record.
7285.
Practice and registration fees.
7286.
Judicial Conference of the Court.
7287.
Administration.
7288.
Annual report.

        

SUBCHAPTER IV—DECISIONS AND REVIEW

7291.
Date when Court decision becomes final.
7292.
Review by United States Court of Appeals for the Federal Circuit.

        

SUBCHAPTER V—RETIREMENT AND SURVIVORS ANNUITIES

7296.
Retirement of judges.
7297.
Survivor annuities.
7298.
Retirement Fund.
7299.
Limitation on activities of retired judges.

        

Amendments

2013Pub. L. 112–260, title III, §302(a)(2), Jan. 10, 2013, 126 Stat. 2425, which directed amendment of the table of sections for chapter 72 by adding item 7255 and striking out former item 7255 "Offices", without specifying the Code title to be amended, was executed to the table of sections for this chapter, to reflect the probable intent of Congress.

2008Pub. L. 110–389, title VI, §604(b), Oct. 10, 2008, 122 Stat. 4179, added item 7288.

2001Pub. L. 107–103, title VI, §§604(c)(2), 605(b), Dec. 27, 2001, 115 Stat. 1000, substituted "Practice and registration fees" for "Practice fee" in item 7285 and added item 7287.

1999Pub. L. 106–117, title X, §§1021(b), 1024(b), Nov. 30, 1999, 113 Stat. 1592, 1594, added items 7257 and 7299.

1998Pub. L. 105–368, title V, §512(a)(3), (4)(A), Nov. 11, 1998, 112 Stat. 3341, substituted "APPEALS FOR VETERANS CLAIMS" for "VETERANS APPEALS" in chapter heading, struck out "of Veterans Appeals" after "Court" in item 7286, substituted "Court decision" for "United States Court of Veterans Appeals decision" in item 7291, and struck out "Court of Veterans Appeals" before "Retirement Fund" in item 7298.

1991Pub. L. 102–82, §2(b), Aug. 6, 1991, 105 Stat. 375, added item 7286.

Pub. L. 102–40, title IV, §402(c)(1), May 7, 1991, 105 Stat. 239, renumbered items 4051 to 4098 as 7251 to 7298, respectively.

1989Pub. L. 101–94, title I, §101(b), Aug. 16, 1989, 103 Stat. 625, added subchapter V heading and items 4096 to 4098.

SUBCHAPTER I—ORGANIZATION AND JURISDICTION

§7251. Status

There is hereby established, under Article I of the Constitution of the United States, a court of record to be known as the United States Court of Appeals for Veterans Claims.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4113, §4051; renumbered §7251, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 105–368, title V, §511(b), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4051 of this title as this section.

Change of Name

Pub. L. 105–368, title V, §511(a), Nov. 11, 1998, 112 Stat. 3341, provided that: "The United States Court of Veterans Appeals is hereby renamed as, and shall hereafter be known and designated as, the United States Court of Appeals for Veterans Claims."

Pub. L. 105–368, title V, §512(c), Nov. 11, 1998, 112 Stat. 3342, provided that: "Any reference in a law, regulation, document, paper, or other record of the United States to the United States Court of Veterans Appeals shall be deemed to be a reference to the United States Court of Appeals for Veterans Claims."

Effective Date of 2001 Amendment; Construction

Pub. L. 107–103, title VI, §603(c), (d), Dec. 27, 2001, 115 Stat. 999, provided that:

"(c) Construction.—The repeal in subsection (a) [repealing section 402 of Pub. L. 100–687, formerly set out as a note below] may not be construed to confer upon the United States Court of Appeals for Veterans Claims jurisdiction over any appeal or other matter not within the jurisdiction of the Court as provided in section 7266(a) of title 38, United States Code.

"(d) Applicability.—The repeals made by subsections (a) and (b) [repealing section 402 of Pub. L. 100–687, formerly set out as a note below, and section 403 of Pub. L. 100–687, formerly set out as a note under section 5904 of this title] shall apply to any appeal filed with the United States Court of Appeals for Veterans Claims—

"(1) on or after the date of the enactment of this Act [Dec. 27, 2001]; or

"(2) before the date of the enactment of this Act but in which a final decision has not been made under section 7291 of title 38, United States Code, as of that date."

Effective Date of 1998 Amendment

Pub. L. 105–368, title V, §513, Nov. 11, 1998, 112 Stat. 3342, provided that: "This subtitle [subtitle B (§§511–513) of title V of Pub. L. 105–368, see Tables for classification], and the amendments made by this subtitle, shall take effect on the first day of the first month beginning more than 90 days after the date of the enactment of this Act [Nov. 11, 1998]."

Effective Date

Pub. L. 100–687, div. A, title IV, §401, Nov. 18, 1988, 102 Stat. 4122, as amended by Pub. L. 101–94, title III, §301, Aug. 16, 1989, 103 Stat. 628, provided that:

"(a) General Effective Date.—Except as otherwise provided in this section, this division (and the amendments made by this Act) [div. A (§§1–403) of Pub. L. 100–687, known as the 'Veterans' Judicial Review Act', see Tables for classification] shall take effect on September 1, 1989.

"(b) Effective Date for Certain Transition Provisions.—The amendment made by section 201(a) [amending section 4001 [now 7101] of this title] shall take effect on February 1, 1989.

"(c) Date of Enactment.—Sections 201 (other than subsection (a)), 208, 209, 302, and 303, and the amendments made by those sections [see Tables for classification], shall take effect on the date of the enactment of this Act [Nov. 18, 1988].

"(d) Board of Veterans' Appeals.—Sections 202, 203, 205, 206, and 207 [see Tables for classification] shall take effect as of January 1, 1989. Section 204 [amending section 4004 [now 7104] of this title] shall take effect on September 1, 1989.

"(e) Commencement of Operation of Court of Veterans Appeals.—Notwithstanding subsection (a), the United States Court of Veterans Appeals [now United States Court of Appeals for Veterans Claims] established pursuant to chapter 72 of title 38, United States Code (as added by section 301) shall not begin to operate until at least three judges have been appointed to the court."

Chapter Applicable to Claims Alleging Previous Determination the Product of Clear and Unmistakable Error

Pub. L. 105–111, §1(c)(2), Nov. 21, 1997, 111 Stat. 2272, provided that: "Notwithstanding section 402 of the Veterans Judicial Review Act (38 U.S.C. 7251 note), chapter 72 of title 38, United States Code, shall apply with respect to any decision of the Board of Veterans' Appeals on a claim alleging that a previous determination of the Board was the product of clear and unmistakable error if that claim is filed after, or was pending before the Department of Veterans Affairs, the Court of Veterans Appeals [now Court of Appeals for Veterans Claims], the Court of Appeals for the Federal Circuit, or the Supreme Court on the date of the enactment of this Act [Nov. 21, 1997]."

Chapter Applicable to Cases Filed On or After November 18, 1988

Pub. L. 100–687, div. A, title IV, §402, Nov. 18, 1988, 102 Stat. 4122, as amended by Pub. L. 102–40, title IV, §402(d)(2), May 7, 1991, 105 Stat. 239, which provided that this chapter applied to any case in which a notice of disagreement was filed under section 7105 of this title on or after Nov. 18, 1988, was repealed by Pub. L. 107–103, title VI, §603(a), Dec. 27, 2001, 115 Stat. 999.

§7252. Jurisdiction; finality of decisions

(a) The Court of Appeals for Veterans Claims shall have exclusive jurisdiction to review decisions of the Board of Veterans' Appeals. The Secretary may not seek review of any such decision. The Court shall have power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.

(b) Review in the Court shall be on the record of proceedings before the Secretary and the Board. The extent of the review shall be limited to the scope provided in section 7261 of this title. The Court may not review the schedule of ratings for disabilities adopted under section 1155 of this title or any action of the Secretary in adopting or revising that schedule.

(c) Decisions by the Court are subject to review as provided in section 7292 of this title.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4113, §4052; renumbered §7252 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, §14(e)(3), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, §§4(b)(1), (2)(E), 5(c)(1), Aug. 6, 1991, 105 Stat. 404–406; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40, §402(b)(1), renumbered section 4052 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–54 amended subsec. (a) as in effect immediately before the enactment of Pub. L. 102–40 by substituting "Court" for "court" in last sentence.

Subsec. (b). Pub. L. 102–83, §5(c)(1), substituted "1155" for "355".

Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" in two places.

Pub. L. 102–40, §402(d)(1), substituted "7261" for "4061".

Subsec. (c). Pub. L. 102–40, §402(d)(1), substituted "7292" for "4092".

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7253. Composition

(a) Composition.—The Court of Appeals for Veterans Claims is composed of at least three and not more than seven judges, one of whom shall serve as chief judge in accordance with subsection (d).

(b) Appointment.—The judges of the Court shall be appointed by the President, by and with the advice and consent of the Senate, solely on the grounds of fitness to perform the duties of the office. A person may not be appointed to the Court who is not a member in good standing of the bar of a Federal court or of the highest court of a State. Not more than the number equal to the next whole number greater than one-half of the number of judges of the Court may be members of the same political party.

(c) Term of Office.—The term of office of the judges of the Court of Appeals for Veterans Claims shall be 15 years. A judge who is nominated by the President for appointment to an additional term on the Court without a break in service and whose term of office expires while that nomination is pending before the Senate may continue in office for up to 1 year while that nomination is pending.

(d) Chief Judge.—(1) The chief judge of the Court is the head of the Court. The chief judge of the Court shall be the judge of the Court in regular active service who is senior in commission among the judges of the Court who—

(A) have served for one or more years as judges of the Court;

(B) have at least 3 years remaining in term of office; and

(C) have not previously served as chief judge.


(2)(A) In any case in which there is no judge of the Court in regular active service who meets the requirements under paragraph (1), the judge of the Court in regular active service who is senior in commission and meets subparagraph (A) or (B) and subparagraph (C) of paragraph (1) shall act as the chief judge.

(B) In any case under subparagraph (A) of this paragraph in which there is no judge of the Court in regular active service who meets subparagraph (A) or (B) and subparagraph (C) of paragraph (1), the judge of the Court in regular active service who is senior in commission and meets subparagraph (C) shall act as the chief judge.

(3) Except as provided in paragraph (4), a judge of the Court shall serve as the chief judge under paragraph (1) for a term of five years or until the judge becomes age 70, whichever occurs first. If no other judge is eligible under paragraph (1) to serve as chief judge upon the expiration of that term, that judge shall continue to serve as chief judge until another judge becomes eligible under that paragraph to serve as chief judge.

(4)(A) The term of a chief judge shall be terminated before the end of the term prescribed by paragraph (3) if—

(i) the chief judge leaves regular active service as a judge of the Court; or

(ii) the chief judge notifies the other judges of the Court in writing that such judge desires to be relieved of the duties of chief judge.


(B) The effective date of a termination of the term under subparagraph (A) shall be the date on which the chief judge leaves regular active service or the date of the notification under subparagraph (A)(ii), as the case may be.

(5) If a chief judge is temporarily unable to perform the duties of chief judge, those duties shall be performed by the judge of the Court in active service who is present, able and qualified to act, and is next in precedence.

(6) Judges who have the same seniority in commission shall be eligible for service as chief judge in accordance with their relative precedence.

(e) Salary.—Each judge of the Court shall receive a salary at the same rate as is received by judges of the United States district courts.

(f) Removal.—(1) A judge of the Court may be removed from office by the President on grounds of misconduct, neglect of duty, engaging in the practice of law, or violating section 7255(c) of this title. A judge of the Court may not be removed from office by the President on any other ground.

(2) Before a judge may be removed from office under this subsection, the judge shall be provided with a full specification of the reasons for the removal and an opportunity to be heard.

(g) Rules.—(1) The Court shall prescribe rules, consistent with the provisions of chapter 16 of title 28, establishing procedures for the filing of complaints with respect to the conduct of any judge of the Court and for the investigation and resolution of such complaints. In investigating and taking action with respect to any such complaint, the Court shall have the powers granted to a judicial council under such chapter.

(2) The provisions of sections 354(b) through 360 of title 28, regarding referral or certification to, and petition for review in, the Judicial Conference of the United States and action thereon, shall apply to the exercise by the Court of the powers of a judicial council under paragraph (1) of this subsection. The grounds for removal from office specified in subsection (f)(1) shall provide a basis for a determination pursuant to section 354(b) or 355 of title 28, and certification and transmittal by the Conference shall be made to the President for consideration under subsection (f).

(3)(A) In conducting hearings pursuant to paragraph (1), the Court may exercise the authority provided under section 1821 of title 28 to pay the fees and allowances described in that section.

(B) The Court shall have the power provided under section 361 of title 28 to award reimbursement for the reasonable expenses described in that section. Reimbursements under this subparagraph shall be made from funds appropriated to the Court.

(h) Temporary Expansion of Court.—(1) During the period from January 1, 2002, through August 15, 2005, the authorized number of judges of the Court specified in subsection (a) is increased by two.

(2)(A) Of the two additional judges authorized by this subsection—

(i) only one may be appointed pursuant to a nomination made in 2002; and

(ii) only one may be appointed pursuant to a nomination made in 2003.


(B) If a judge is not appointed under this subsection pursuant to a nomination made in 2002, a judge may be appointed under this subsection pursuant to a nomination made in 2004. If a judge is not appointed under this subsection pursuant to a nomination made in 2003, a judge may be appointed under this subsection pursuant to a nomination made in 2004. In either case, such an appointment may be made only pursuant to a nomination made before October 1, 2004.

(3) The term of office and the eligibility for retirement of a judge appointed under this subsection, other than a judge described in paragraph (4), are governed by the provisions of section 1012 of the Court of Appeals for Veterans Claims Amendments of 1999 (title X of Public Law 106–117; 113 Stat. 1590; 38 U.S.C. 7296 note) if the judge is one of the first two judges appointed to the Court after November 30, 1999.

(4) A judge of the Court as of December 27, 2001, who was appointed to the Court before January 1, 1991, may accept appointment as a judge of the Court under this subsection notwithstanding that the term of office of the judge on the Court has not yet expired under this section. The term of office of an incumbent judge who receives an appointment as described in the preceding sentence shall be 15 years, which includes any period remaining in the unexpired term of the judge. Any service following an appointment under this subsection shall be treated as though served as part of the original term of office of that judge on the Court.

(5) Notwithstanding paragraph (1), an appointment may not be made to the Court if the appointment would result in there being more than seven judges on the Court who were appointed after January 1, 1997. For the purposes of this paragraph, a judge serving in recall status under section 7257 of this title shall be disregarded in counting the number of judges appointed to the Court after such date.

(i) Additional Temporary Expansion of Court.—(1) Subject to paragraph (2), effective as of December 31, 2009, the authorized number of judges of the Court specified in subsection (a) is increased by two.

(2) Effective as of January 1, 2021, an appointment may not be made to the Court if the appointment would result in there being more judges of the Court than the authorized number of judges of the Court specified in subsection (a).

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4114, §4053; amended Pub. L. 101–94, title I, §102(c), Aug. 16, 1989, 103 Stat. 626; renumbered §7253, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–82, §3, Aug. 6, 1991, 105 Stat. 375; Pub. L. 102–585, title VIII, §801, Nov. 4, 1992, 106 Stat. 4980; Pub. L. 105–368, title V, §§501, 512(a)(1), Nov. 11, 1998, 112 Stat. 3340, 3341; Pub. L. 106–117, title X, §§1031, 1032(a), 1033, Nov. 30, 1999, 113 Stat. 1594, 1595; Pub. L. 107–103, title VI, §601, Dec. 27, 2001, 115 Stat. 998; Pub. L. 107–273, div. C, title I, §11043(f), Nov. 2, 2002, 116 Stat. 1856; Pub. L. 108–454, title VIII, §802, Dec. 10, 2004, 118 Stat. 3625; Pub. L. 109–233, title V, §503(15), June 15, 2006, 120 Stat. 417; Pub. L. 110–389, title VI, §601, Oct. 10, 2008, 122 Stat. 4176; Pub. L. 112–260, title III, §302(b), Jan. 10, 2013, 126 Stat. 2425; Pub. L. 114–315, title II, §§201(a), 204(a), Dec. 16, 2016, 130 Stat. 1548, 1549.)

Applicability of Amendment

Amendment of section by section 204(a) of Pub. L. 114–315 applicable with respect to the selection of a chief judge occurring on or after Jan. 1, 2020. See 2016 Amendment notes below.

Amendments

2016—Subsec. (d)(1)(B), (C). Pub. L. 114–315, §204(a)(1), added subpar. (B) and redesignated former subpar. (B) as (C).

Subsec. (d)(2). Pub. L. 114–315, §204(a)(2), amended par. (2) generally. Prior to amendment, par. (2) read as follows: "In any case in which there is no judge of the Court in regular active service who has served as a judge of the Court for at least one year, the judge of the court in regular active service who is senior in commission and has not served previously as chief judge shall act as the chief judge."

Subsec. (i)(2). Pub. L. 114–315, §201(a), substituted "January 1, 2021" for "January 1, 2013".

2013—Subsec. (f)(1). Pub. L. 112–260, which directed substitution of "engaging in the practice of law, or violating section 7255(c) of this title" for "or engaging in the practice of law" in section 7253(f)(1), without specifying the Code title to be amended, was executed to subsec. (f)(1) of this section, to reflect the probable intent of Congress.

2008—Subsec. (i). Pub. L. 110–389 added subsec. (i).

2006—Subsec. (d)(5). Pub. L. 109–233 substituted "Court" for "court".

2004—Subsec. (d)(1). Pub. L. 108–454, §802(a), inserted "The chief judge of the Court is the head of the Court." after "(1)".

Subsec. (d)(4)(A). Pub. L. 108–454, §802(b), substituted "Court" for "court" in cls. (i) and (ii).

Subsec. (h)(4). Pub. L. 108–454, §802(c), substituted "December 27, 2001," for "the date of the enactment of this subsection".

2002—Subsec. (g)(1). Pub. L. 107–273, §11043(f)(1), substituted "chapter 16" for "section 372(c)" and "such chapter" for "such section".

Subsec. (g)(2). Pub. L. 107–273, §11043(f)(2), substituted "sections 354(b) through 360" for "paragraphs (7) through (15) of section 372(c)" and "section 354(b) or 355" for "paragraph (7) or (8) of section 372(c)".

Subsec. (g)(3)(B). Pub. L. 107–273, §11043(f)(3), substituted "361" for "372(c)(16)".

2001—Subsecs. (b), (c), (f), (g). Pub. L. 107–103, §601(b), inserted subsec. headings.

Subsec. (h). Pub. L. 107–103, §601(a), added subsec. (h).

1999—Subsec. (a). Pub. L. 106–117, §1031, inserted heading and amended text of subsec. (a) generally. Prior to amendment, text read as follows: "The Court of Appeals for Veterans Claims shall be composed of a chief judge and at least two and not more than six associate judges."

Subsec. (d). Pub. L. 106–117, §1032(a), inserted heading and amended text of subsec. (d) generally. Prior to amendment, text read as follows: "The chief judge is the head of the Court".

Subsec. (e). Pub. L. 106–117, §1033, inserted heading and amended text of subsec. (e) generally. Prior to amendment, text read as follows:

"(e)(1) The chief judge of the Court shall receive a salary at the same rate as is received by judges of the United States Courts of Appeals.

"(2) Each judge of the Court, other than the chief judge, shall receive a salary at the same rate as is received by judges of the United States district courts."

1998—Subsec. (a). Pub. L. 105–368, §512(a)(1), substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

Subsec. (c). Pub. L. 105–368, §512(a)(1), substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

Pub. L. 105–368, §501, inserted at end "A judge who is nominated by the President for appointment to an additional term on the Court without a break in service and whose term of office expires while that nomination is pending before the Senate may continue in office for up to 1 year while that nomination is pending."

1992—Subsec. (g). Pub. L. 102–585 designated existing provisions as par. (1) and added pars. (2) and (3).

1991Pub. L. 102–40 renumbered section 4053 of this title as this section.

Subsec. (g). Pub. L. 102–82 added subsec. (g).

1989—Subsec. (f)(1). Pub. L. 101–94 inserted "or" before "engaging" and substituted "law" for "law, or physical or mental disability which, in the opinion of the President, prevents the proper execution of the judge's duties".

Effective Date of 2016 Amendment

Pub. L. 114–315, title II, §204(b), Dec. 16, 2016, 130 Stat. 1550, provided that: "The amendments made by subsection (a) [amending this section] shall apply with respect to the selection of a chief judge occurring on or after January 1, 2020."

Effective Date of 2013 Amendment

Amendment by Pub. L. 112–260 effective on the date that is 180 days after Jan. 10, 2013, see section 302(c)(1) of Pub. L. 112–260, set out as a note under section 7255 of this title.

Pub. L. 112–260, title III, §302(c)(2), Jan. 10, 2013, 126 Stat. 2426, provided that: "The amendment made by subsection (b) [amending this section] shall apply with respect to judges confirmed on or after January 1, 2012."

Effective Date of 1999 Amendment

Pub. L. 106–117, title X, §1036, Nov. 30, 1999, 113 Stat. 1595, provided that:

"(a) Effective Date.—The amendments made by this subtitle [subtitle C (§§1031–1036) of title X of Pub. L. 106–117, amending this section and sections 7254, 7281, 7296, and 7297 of this title] shall take effect on the date of the enactment of this Act [Nov. 30, 1999].

"(b) Savings Provision for Incumbent Chief Judge.—The amendments made by this subtitle shall not apply while the individual who is chief judge of the Court [United States Court of Appeals for Veterans Claims] on the date of the enactment of this Act [Nov. 30, 1999] continues to serve as chief judge. If that individual, upon termination of service as chief judge, provides notice under section 7257 of title 38, United States Code, of availability for service in a recalled status, the rate of pay applicable to that individual under section 7296(c)(1)(A) of such title while serving in a recalled status shall be at the rate of pay applicable to that individual at the time of retirement, if greater than the rate otherwise applicable under that section."

Effective Date of 1998 Amendment

Amendment by section 512(a)(1) of Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Initial Appointment of Judges to Court of Veterans Appeals

Section 302 of Pub. L. 100–687 prohibited President from appointing associate judges of the United States Court of Veterans Appeals under subsec. (b) of this section, until the chief judge of such Court has been appointed and that judges could be appointed after Feb. 1, 1989.

§7254. Organization

(a) The Court of Appeals for Veterans Claims shall have a seal which shall be judicially noticed.

(b) The Court may hear cases by judges sitting alone or in panels, as determined pursuant to procedures established by the Court. Any such panel shall have not less than three judges. The Court shall establish procedures for the assignment of the judges of the Court to such panels and for the designation of the chief of each such panel.

(c)(1) A majority of the judges of the Court shall constitute a quorum for the transaction of the business of the Court. A vacancy in the Court shall not impair the powers or affect the duties of the Court or of the remaining judges of the Court.

(2) A majority of the judges of a panel of the Court shall constitute a quorum for the transaction of the business of the panel. A vacancy in a panel of the Court shall not impair the powers or affect the duties of the panel or of the remaining judges of the panel.

(d) Precedence of Judges.—The chief judge of the Court shall have precedence and preside at any session that the chief judge attends. The other judges shall have precedence and preside according to the seniority of their original commissions. Judges whose commissions bear the same date shall have precedence according to seniority in age.

(e) Judges of the Court shall have the authority to administer oaths.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4114, §4054; amended Pub. L. 101–94, title IV, §402, Aug. 16, 1989, 103 Stat. 628; Pub. L. 101–237, title VI, §602(b), Dec. 18, 1989, 103 Stat. 2095; renumbered §7254, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, §14(e)(4), June 13, 1991, 105 Stat. 287; Pub. L. 102–82, §8(3), Aug. 6, 1991, 105 Stat. 377; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 106–117, title X, §1034, Nov. 30, 1999, 113 Stat. 1595.)

Amendments

1999—Subsec. (d). Pub. L. 106–117 inserted heading and amended text of subsec. (d) generally. Prior to amendment, text read as follows: "In the event of a vacancy in the position of chief judge of the Court, the associate judge senior in service on the Court shall serve as acting chief judge unless the President designates one of the other associate judges to serve as acting chief judge, in which case the judge so designated shall serve as acting chief judge."

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4054 of this title as this section.

Subsecs. (d), (e). Pub. L. 102–54 amended section as in effect immediately before the enactment of Pub. L. 102–40, and Pub. L. 102–82 amended section, identically, by redesignating the second subsec. (d), relating to authority to administer oaths as, (e).

1989—Subsec. (d). Pub. L. 101–237 added subsec. (d) relating to authority to administer oaths.

Pub. L. 101–94 added subsec. (d) relating to acting chief judge in event of vacancy.

Effective Date of 1999 Amendment

Amendment by Pub. L. 106–117 effective Nov. 30, 1999, with savings provision for incumbent chief judge, see section 1036 of Pub. L. 106–117, set out as a note under section 7253 of this title.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7255. Offices, duty stations, and residences

(a) Principal Office.—The principal office of the Court of Appeals for Veterans Claims shall be in the Washington, D.C., metropolitan area, but the Court may sit at any place within the United States.

(b) Official Duty Stations.—(1) Except as provided in paragraph (2), the official duty station of each judge while in active service shall be the principal office of the Court of Appeals for Veterans Claims.

(2) The place where a recall-eligible retired judge maintains the actual abode in which such judge customarily lives shall be considered the recall-eligible retired judge's official duty station.

(c) Residences.—(1) Except as provided in paragraph (2), after appointment and while in active service, each judge of the Court of Appeals for Veterans Claims shall reside within 50 miles of the Washington, D.C., metropolitan area.

(2) Paragraph (1) shall not apply to recall-eligible retired judges of the Court of Appeals for Veterans Claims.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4114, §4055; renumbered §7255, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 108–454, title VIII, §801, Dec. 10, 2004, 118 Stat. 3625; Pub. L. 112–260, title III, §302(a)(1), Jan. 10, 2013, 126 Stat. 2425.)

Amendments

2013Pub. L. 112–260, which directed the general amendment of section 7255 without specifying the Code title to be amended, was executed by amending this section generally, to reflect the probable intent of Congress. Prior to amendment, text read as follows: "The principal office of the Court of Appeals for Veterans Claims shall be in the Washington, D.C., metropolitan area, but the Court may sit at any place within the United States."

2004Pub. L. 108–454 substituted "Washington, D.C., metropolitan area" for "District of Columbia".

1998Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4055 of this title as this section.

Effective Date of 2013 Amendment

Pub. L. 112–260, title III, §302(c)(1), Jan. 10, 2013, 126 Stat. 2425, provided that: "Subsection (c) of section 7255 [probably means 38 U.S.C. 7255(c)], as added by subsection (a), and the amendment made by subsection (b) [amending section 7253 of this title] shall take effect on the date that is 180 days after the date of the enactment of this Act [Jan. 10, 2013]."

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Facilities for Court of Appeals for Veterans Claims

Pub. L. 101–94, title II, §201, Aug. 16, 1989, 103 Stat. 626, as amended by Pub. L. 105–368, title V, §512(c), Nov. 11, 1998, 112 Stat. 3342, provided that:

"(a) Space in the District of Columbia.—The Administrator of General Services shall provide suitable building space in the District of Columbia for the United States Court of Appeals for Veterans Claims as the Court's principal place of business. The Administrator shall, if necessary, arrange for temporary space for the Court if permanent space is not immediately available for the Court. The Administrator shall place a high priority on the provision of such temporary and permanent space for the Court.

"(b) Approval by Court.—Any space to be provided for the Court of Appeals for Veterans Claims under subsection (a) must be acceptable to the Court.

"(c) Additional Requirement.—Any building space provided to the Court under subsection (a) shall be adjacent to additional building space (in an amount acceptable to the Court) that can be made available to the Court in the future if needed for expansion of the facilities of the Court."

Pub. L. 100–687, div. A, title III, §303, Nov. 18, 1988, 102 Stat. 4121, provided for the initial location of the principal office of the Court of Veterans Appeals.

§7256. Times and places of sessions

The times and places of sessions of the Court of Appeals for Veterans Claims shall be prescribed by the chief judge.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4115, §4056; renumbered §7256, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4056 of this title as this section.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7257. Recall of retired judges

(a)(1) A retired judge of the Court may be recalled for further service on the Court in accordance with this section. To be eligible to be recalled for such service, a retired judge must at the time of the judge's retirement provide to the chief judge of the Court (or, in the case of the chief judge, to the clerk of the Court) notice in writing that the retired judge is available for further service on the Court in accordance with this section and is willing to be recalled under this section. Such a notice provided by a retired judge to whom section 7296(c)(1)(B) of this title applies is irrevocable.

(2) For the purposes of this section—

(A) a retired judge is a judge of the Court of Appeals for Veterans Claims who retires from the Court under section 7296 of this title or under chapter 83 or 84 of title 5; and

(B) a recall-eligible retired judge is a retired judge who has provided a notice under paragraph (1).


(b)(1) The chief judge may recall for further service on the Court a recall-eligible retired judge in accordance with this section. Such a recall shall be made upon written certification by the chief judge that substantial service is expected to be performed by the retired judge for such period, not to exceed 90 days (or the equivalent), as determined by the chief judge to be necessary to meet the needs of the Court.

(2) A recall-eligible retired judge may not be recalled for more than 90 days (or the equivalent) during any calendar year without the judge's consent.

(3) If a recall-eligible retired judge is recalled by the chief judge in accordance with this section and (other than in the case of a judge who has previously during that calendar year served at least 90 days (or the equivalent) of recalled service on the court) declines (other than by reason of disability) to perform the service to which recalled, the chief judge shall remove that retired judge from the status of a recall-eligible judge. This paragraph shall not apply to a judge to whom section 7296(c)(1)(A) or 7296(c)(1)(B) of this title applies and who has, in the aggregate, served at least five years of recalled service on the Court under this section.

(4) A recall-eligible retired judge who becomes permanently disabled and as a result of that disability is unable to perform further service on the Court shall be removed from the status of a recall-eligible judge. Determination of such a disability shall be made pursuant to section 7253(g) or 7296(g) of this title.

(c) A retired judge who is recalled under this section may exercise all of the judicial powers and duties of the office of a judge in active service.

(d)(1) The pay of a recall-eligible retired judge to whom section 7296(c)(1)(B) of this title applies is the pay specified in that section.

(2) A judge who is recalled under this section who retired under chapter 83 or 84 of title 5 or to whom section 7296(c)(1)(A) of this title applies shall be paid, during the period for which the judge serves in recall status, pay at the rate of pay in effect under section 7253(e) of this title for a judge performing active service, less the amount of the judge's annuity under the applicable provisions of chapter 83 or 84 of title 5 or the judge's annuity under section 7296(c)(1)(A) of this title, whichever is applicable.

(e)(1) Except as provided in subsection (d), a judge who is recalled under this section who retired under chapter 83 or 84 of title 5 shall be considered to be a reemployed annuitant under that chapter.

(2) Nothing in this section affects the right of a judge who retired under chapter 83 or 84 of title 5 to serve as a reemployed annuitant in accordance with the provisions of title 5.

(Added Pub. L. 106–117, title X, §1021(a), Nov. 30, 1999, 113 Stat. 1590; amended Pub. L. 110–389, title VI, §603(a), (b)(3)–(c), Oct. 10, 2008, 122 Stat. 4177, 4178.)

Amendments

2008—Subsec. (a)(1). Pub. L. 110–389, §603(b)(4), amended last sentence generally. Prior to amendment, last sentence read as follows: "Such a notice provided by a retired judge is irrevocable.".

Subsec. (b)(2). Pub. L. 110–389, §603(a), struck out "or for more than a total of 180 days (or the equivalent) during any calendar year" before period at end.

Subsec. (b)(3). Pub. L. 110–389, §603(c), inserted at end "This paragraph shall not apply to a judge to whom section 7296(c)(1)(A) or 7296(c)(1)(B) of this title applies and who has, in the aggregate, served at least five years of recalled service on the Court under this section."

Subsec. (d). Pub. L. 110–389, §603(b)(3), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows:

"(d)(1) The pay of a recall-eligible retired judge who retired under section 7296 of this title is specified in subsection (c) of that section.

"(2) A judge who is recalled under this section who retired under chapter 83 or 84 of title 5 shall be paid, during the period for which the judge serves in recall status, pay at the rate of pay in effect under section 7253(e) of this title for a judge performing active service, less the amount of the judge's annuity under the applicable provisions of chapter 83 or 84 of title 5."

SUBCHAPTER II—PROCEDURE

§7261. Scope of review

(a) In any action brought under this chapter, the Court of Appeals for Veterans Claims, to the extent necessary to its decision and when presented, shall—

(1) decide all relevant questions of law, interpret constitutional, statutory, and regulatory provisions, and determine the meaning or applicability of the terms of an action of the Secretary;

(2) compel action of the Secretary unlawfully withheld or unreasonably delayed;

(3) hold unlawful and set aside decisions, findings (other than those described in clause (4) of this subsection), conclusions, rules, and regulations issued or adopted by the Secretary, the Board of Veterans' Appeals, or the Chairman of the Board found to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or

(D) without observance of procedure required by law; and


(4) in the case of a finding of material fact adverse to the claimant made in reaching a decision in a case before the Department with respect to benefits under laws administered by the Secretary, hold unlawful and set aside or reverse such finding if the finding is clearly erroneous.


(b) In making the determinations under subsection (a), the Court shall review the record of proceedings before the Secretary and the Board of Veterans' Appeals pursuant to section 7252(b) of this title and shall—

(1) take due account of the Secretary's application of section 5107(b) of this title; and

(2) take due account of the rule of prejudicial error.


(c) In no event shall findings of fact made by the Secretary or the Board of Veterans' Appeals be subject to trial de novo by the Court.

(d) When a final decision of the Board of Veterans' Appeals is adverse to a party and the sole stated basis for such decision is the failure of the party to comply with any applicable regulation prescribed by the Secretary, the Court shall review only questions raised as to compliance with and the validity of the regulation.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4115, §4061; amended Pub. L. 101–237, title VI, §602(c), Dec. 18, 1989, 103 Stat. 2095; renumbered §7261, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, §14(e)(3), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, §4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–330, title IV, §401(a), (b), Dec. 6, 2002, 116 Stat. 2832.)

Amendments

2002—Subsec. (a)(4). Pub. L. 107–330, §401(a), inserted "adverse to the claimant" after "material fact" and "or reverse" after "and set aside".

Subsec. (b). Pub. L. 107–330, §401(b), amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "In making the determinations under subsection (a) of this section, the Court shall take due account of the rule of prejudicial error."

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals" in introductory provisions.

1991Pub. L. 102–40 renumbered section 4061 of this title as this section.

Subsec. (a)(1) to (3). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator" wherever appearing.

Subsec. (a)(4). Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Pub. L. 102–83, §4(a)(1), substituted "administered by the Secretary" for "administered by the Veterans' Administration".

Subsec. (c). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–54 amended subsec. (c) as in effect immediately before the enactment of Pub. L. 102–40 by substituting "Court" for "court".

Subsec. (d). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

1989—Subsec. (a)(2). Pub. L. 101–237 inserted "or unreasonably delayed" after "withheld".

Effective Date of 2002 Amendment

Pub. L. 107–330, title IV, §401(c), Dec. 6, 2002, 116 Stat. 2832, provided that:

"(1) Except as provided in paragraph (2), the amendments made by this section [amending this section] shall take effect on the date of the enactment of this Act [Dec. 6, 2002].

"(2) The amendments made by this section shall apply with respect to any case pending for decision before the United States Court of Appeals for Veterans Claims other than a case in which a decision has been entered before the date of the enactment of this Act."

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7262. Fee for filing appeals

(a) The Court of Appeals for Veterans Claims may impose a fee of not more than $50 for the filing of any appeal with the Court. The Court shall establish procedures under which such a fee may be waived in the case of an appeal filed by or on behalf of a person who demonstrates that the requirement that such fee be paid will impose a hardship on that person. A decision as to such a waiver is final and may not be reviewed in any other court.

(b) The Court may from time to time adjust the maximum amount permitted for a fee imposed under subsection (a) of this section based upon inflation and similar fees charged by other courts established under Article I of the Constitution.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4115, §4062; renumbered §7262, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4062 of this title as this section.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7263. Representation of parties; fee agreements

(a) The Secretary shall be represented before the Court of Appeals for Veterans Claims by the General Counsel of the Department.

(b) Representation of appellants shall be in accordance with the rules of practice prescribed by the Court under section 7264 of this title. In addition to members of the bar admitted to practice before the Court in accordance with such rules of practice, the Court may allow other persons to practice before the Court who meet standards of proficiency prescribed in such rules of practice.

(c) A person who represents an appellant before the Court shall file a copy of any fee agreement between the appellant and that person with the Court at the time the appeal is filed. The Court, on its own motion or the motion of any party, may review such a fee agreement.

(d) In reviewing a fee agreement under subsection (c) of this section or under section 5904(c)(2) of this title, the Court may affirm the finding or order of the Board and may order a reduction in the fee called for in the agreement if it finds that the fee is excessive or unreasonable. An order of the Court under this subsection is final and may not be reviewed in any other court.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4116, §4063; renumbered §7263 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40, §402(b)(1), renumbered section 4063 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Pub. L. 102–83, §4(a)(3), (4), substituted "Department" for "Veterans' Administration".

Subsec. (b). Pub. L. 102–40, §402(d)(1), substituted "7264" for "4064".

Subsec. (d). Pub. L. 102–40, §402(d)(1), substituted "5904(c)(2)" for "3404(c)(2)".

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7264. Rules of practice and procedure

(a) The proceedings of the Court of Appeals for Veterans Claims shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.

(b) The mailing of a pleading, decision, order, notice, or process in respect of proceedings before the Court shall be held sufficient service of such pleading, decision, order, notice, or process if it is properly addressed to the address furnished by the appellant on the notice of appeal filed under section 7266 of this title.

(c) Section 455 of title 28 shall apply to judges and proceedings of the Court.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4116, §4064; renumbered §7264 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–82, §4, Aug. 6, 1991, 105 Stat. 376; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40, §402(b)(1), renumbered section 4064 of this title as this section.

Subsec. (b). Pub. L. 102–40, §402(d)(1), substituted "7266" for "4066".

Subsec. (c). Pub. L. 102–82 added subsec. (c).

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Interim Rules of Court of Veterans Appeals

Pub. L. 101–94, title II, §203, Aug. 16, 1989, 103 Stat. 627, provided that the Federal Rules of Appellate Procedure (28 U.S.C. App.) would be interim rules of United States Court of Veterans Appeals unless otherwise provided by the Court in accordance with this chapter, and if there was a conflict between a provision of Federal Rules of Appellate Procedure and procedures set forth in this chapter, procedures set forth in this chapter would apply.

§7265. Contempt authority; assistance to the Court

(a) The Court shall have power to punish by fine or imprisonment such contempt of its authority as—

(1) misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) misbehavior of any of its officers in their official transactions; or

(3) disobedience or resistance to its lawful writ, process, order, rule, decree, or command.


(b) The Court shall have such assistance in the carrying out of its lawful writ, process, order, rule, decree, or command as is available to a court of the United States. The United States marshal for a district in which the Court is sitting shall, if requested by the chief judge of the Court, attend any session of the Court in that district.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4116, §4065; renumbered §7265, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238.)

Amendments

1991Pub. L. 102–40 renumbered section 4065 of this title as this section.

§7266. Notice of appeal

(a) In order to obtain review by the Court of Appeals for Veterans Claims of a final decision of the Board of Veterans' Appeals, a person adversely affected by such decision shall file a notice of appeal with the Court within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title.

(b) An appellant shall file a notice of appeal under this section by delivering or mailing the notice to the Court.

(c) A notice of appeal shall be deemed to be received by the Court as follows:

(1) On the date of receipt by the Court, if the notice is delivered.

(2) On the date of the United States Postal Service postmark stamped on the cover in which the notice is posted, if the notice is properly addressed to the Court and is mailed.


(d) For a notice of appeal mailed to the Court to be deemed to be received under subsection (c)(2) on a particular date, the United States Postal Service postmark on the cover in which the notice is posted must be legible. The Court shall determine the legibility of any such postmark and the Court's determination as to legibility shall be final and not subject to review by any other Court.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4116, §4066; renumbered §7266 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 103–446, title V, §511(a), Nov. 2, 1994, 108 Stat. 4670; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–103, title V, §507, Dec. 27, 2001, 115 Stat. 997.)

Amendments

2001Pub. L. 107–103 struck out "(1)" before "In order to", redesignated par. (2) of subsec. (a) as subsec. (b), redesignated par. (3) of subsec. (a) as subsec. (c) and subpars. (A) and (B) thereof as pars. (1) and (2), respectively, redesignated par. (4) of subsec. (a) as subsec. (d) and substituted "subsection (c)(2)" for "paragraph (3)(B)", and struck out former subsec. (b) which read as follows: "The appellant shall also furnish the Secretary with a copy of such notice, but a failure to do so shall not constitute a failure of timely compliance with subsection (a) of this section."

1998—Subsec. (a)(1). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1994—Subsec. (a). Pub. L. 103–446 amended subsec. (a) generally. Prior to amendment, subsec. (a) read as follows: "In order to obtain review by the Court of Veterans Appeals of a final decision of the Board of Veterans' Appeals, a person adversely affected by that action must file a notice of appeal with the Court. Any such notice must be filed within 120 days after the date on which notice of the decision is mailed pursuant to section 7104(e) of this title."

1991Pub. L. 102–40, §402(b)(1), renumbered section 4066 of this title as this section.

Subsec. (a). Pub. L. 102–40, §402(d)(1), substituted "7104(e)" for "4004(e)".

Subsec. (b). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Effective Date of 1994 Amendment

Pub. L. 103–446, title V, §511(b), Nov. 2, 1994, 108 Stat. 4670, provided that: "The amendment made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Nov. 2, 1994] and shall apply to notices of appeal that are delivered or mailed to the United States Court of Veterans Appeals [now United States Court of Appeals for Veterans Claims] on or after that date."

Interim Provision for Filing Notices of Appeal

Pub. L. 101–94, title II, §202, Aug. 16, 1989, 103 Stat. 626, provided that in the case of a person adversely affected by a final decision of the Board of Veterans' Appeals that was made before the date on which the United States Court of Veterans Appeals published in the Federal Register a notice by the Court that it had commenced operations, the period prescribed under this section within which a notice of appeal had to be filed with the Court was to be extended to the end of the 30-day period beginning on the date such notice was published, if the end of that period was later than the date that would otherwise be applicable under this section.

§7267. Decisions

(a) A decision upon a proceeding before the Court of Appeals for Veterans Claims shall be made as quickly as practicable. In a case heard by a panel of the Court, the decision shall be made by a majority vote of the panel in accordance with the rules of the Court. The decision of the judge or panel hearing the case so made shall be the decision of the Court.

(b) A judge or panel shall make a determination upon any proceeding before the Court, and any motion in connection with such a proceeding, that is assigned to the judge or panel. The judge or panel shall make a report of any such determination which constitutes the judge or panel's final disposition of the proceeding.

(c) The Court shall designate in its decision in any case those specific records of the Government on which it relied (if any) in making its decision. The Secretary shall preserve records so designated for not less than the period of time designated by the Archivist of the United States.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4117, §4067; renumbered §7267, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–82, §§1, 8(1), Aug. 6, 1991, 105 Stat. 375, 377; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4067 of this title as this section.

Subsec. (a). Pub. L. 102–82, §1(3), struck out before period at end "except as provided in subsection (d) of this section".

Subsec. (b). Pub. L. 102–82, §1(1), (2), redesignated subsec. (c) as (b) and struck out former subsec. (b) which read as follows: "The Court shall include in its decision a statement of its conclusions of law and determinations as to factual matters."

Subsec. (c). Pub. L. 102–83 substituted "Secretary" for "Administrator".

Pub. L. 102–82, §8(1), substituted "Archivist of the United States" for "Administrator of the National Archives and Records Administration".

Pub. L. 102–82, §1(2), redesignated subsec. (e) as (c). Former subsec. (c) redesignated (b).

Subsec. (d). Pub. L. 102–82, §1(1), struck out subsec. (d) which read as follows:

"(1) In the case of a proceeding determined by a single judge of the Court, the decision of the judge shall become the decision of the Court unless before the end of the 30-day period beginning on the date of the decision by the judge the Court, upon the motion of either party or on its own initiative, directs that the decision be reviewed by a panel of the Court. In such a case, the decision of the judge initially deciding the case shall not be a part of the record.

"(2) In the case of a proceeding determined by a panel of the Court, the decision of the panel shall become the decision of the Court unless before the end of the 30-day period beginning on the date of the decision by the panel the Court, upon the motion of either party or on its own initiative, directs that the decision be reviewed by an expanded panel of the Court (or the Court en banc). In such a case, the decision of the panel initially deciding the case shall not be a part of the record."

Subsec. (e). Pub. L. 102–82, §1(2), redesignated subsec. (e) as (c).

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7268. Availability of proceedings

(a) Except as provided in subsection (b) of this section, all decisions of the Court of Appeals for Veterans Claims and all briefs, motions, documents, and exhibits received by the Court (including a transcript of the stenographic report of the hearings) shall be public records open to the inspection of the public.

(b)(1) The Court may make any provision which is necessary to prevent the disclosure of confidential information, including a provision that any such document or information be placed under seal to be opened only as directed by the Court.

(2) After the decision of the Court in a proceeding becomes final, the Court may, upon motion of the appellant or the Secretary, permit the withdrawal by the party entitled thereto of originals of books, documents, and records, and of models, diagrams, and other exhibits, submitted to the Court or the Court may, on its own motion, make such other disposition thereof as it considers advisable.

(c)(1) The Court shall prescribe rules, in accordance with section 7264(a) of this title, to protect privacy and security concerns relating to all filing of documents and the public availability under this subsection of documents retained by the Court or filed electronically with the Court.

(2) The rules prescribed under paragraph (1) shall be consistent to the extent practicable with rules addressing privacy and security issues throughout the Federal courts.

(3) The rules prescribed under paragraph (1) shall take into consideration best practices in Federal and State courts to protect private information or otherwise maintain necessary information security.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4117, §4068; renumbered §7268, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–82, §8(2), Aug. 6, 1991, 105 Stat. 377; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 110–389, title VI, §602, Oct. 10, 2008, 122 Stat. 4177.)

Amendments

2008—Subsec. (c). Pub. L. 110–389 added subsec. (c).

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4068 of this title as this section.

Subsec. (b)(2). Pub. L. 102–82 substituted "may, upon motion of the appellant or the Secretary," for "shall" and "or the Court" for "before the Court".

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7269. Publication of decisions

(a) The Court of Appeals for Veterans Claims shall provide for the publication of decisions of the Court in such form and manner as may be best adapted for public information and use. The Court may make such exceptions, or may authorize the chief judge to make such exceptions, to the requirement for publication in the preceding sentence as may be appropriate.

(b) Such authorized publication shall be competent evidence of the decisions of the Court of Appeals for Veterans Claims therein contained in all courts of the United States and of the several States without any further proof or authentication thereof.

(c) Such publications shall be subject to sale in the same manner and upon the same terms as other public documents.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4118, §4069; renumbered §7269, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998—Subsecs. (a), (b). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4069 of this title as this section.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

SUBCHAPTER III—MISCELLANEOUS PROVISIONS

§7281. Employees

(a) The Court of Appeals for Veterans Claims may appoint a clerk without regard to the provisions of title 5 governing appointments in the competitive service. The clerk shall serve at the pleasure of the Court.

(b) The judges of the Court may appoint law clerks and secretaries, in such numbers as the Court may approve, without regard to the provisions of title 5 governing appointments in the competitive service. Any such law clerk or secretary shall serve at the pleasure of the appointing judge.

(c) The clerk, with the approval of the Court, may appoint necessary deputies and employees without regard to the provisions of title 5 governing appointments in the competitive service.

(d) The Court may fix and adjust the rates of basic pay for the clerk and other employees of the Court without regard to the provisions of chapter 51, subchapter III of chapter 53, or section 5373 of title 5. To the maximum extent feasible, the Court shall compensate employees at rates consistent with those for employees holding comparable positions in the judicial branch.

(e) In making appointments under subsections (a) through (c) of this section, preference shall be given, among equally qualified persons, to persons who are preference eligibles (as defined in section 2108(3) of title 5).

(f) The Court may procure the services of experts and consultants under section 3109 of title 5.

(g) The chief judge of the Court may exercise the authority of the Court under this section whenever there are not at least two other judges of the Court.

(h) The Court shall not be considered to be an agency within the meaning of section 3132(a)(1) of title 5.

(i) The Court may accept and utilize voluntary services and uncompensated (gratuitous) services, including services as authorized by section 3102(b) of title 5 and may accept, hold, administer, and utilize gifts and bequests of personal property for the purposes of aiding or facilitating the work of the Court. Gifts or bequests of money to the Court shall be covered into the Treasury.

(j) For purposes of chapter 87 of title 5, a judge who is in regular active service and a judge who is retired under section 7296 of this title or under chapter 83 or 84 of title 5 shall be treated as an employee described in section 8701(a)(5) of title 5.

(k) Notwithstanding any other provision of law, the Court may pay on behalf of its judges, who are age 65 or older, any increase in the cost of Federal Employees' Group Life Insurance imposed after April 24, 1999, including any expenses generated by such payments, as authorized by the chief judge of the Court in a manner consistent with such payment authorized by the Judicial Conference of the United States pursuant to section 604(a)(5) of title 28.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4118, §4081; amended Pub. L. 101–94, title II, §204(a), Aug. 16, 1989, 103 Stat. 627; renumbered §7281, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–82, §7, Aug. 6, 1991, 105 Stat. 377; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 106–117, title X, §1035(1), Nov. 30, 1999, 113 Stat. 1595; Pub. L. 114–315, title II, §202(a), Dec. 16, 2016, 130 Stat. 1549.)

References in Text

The provisions of title 5 governing appointment in the competitive service, referred to in subsecs. (a) to (c), are classified generally to section 3301 et seq. of Title 5, Government Organization and Employees.

Amendments

2016—Subsecs. (j), (k). Pub. L. 114–315 added subsecs. (j) and (k).

1999—Subsec. (g). Pub. L. 106–117 amended subsec. (g) generally. Prior to amendment, subsec. (g) read as follows: "The Chief Judge of the Court may exercise the authority of the Court under this section whenever there are not at least two associate judges of the Court."

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4081 of this title as this section.

Subsec. (i). Pub. L. 102–82 added subsec. (i).

1989Pub. L. 101–94 amended section generally. Prior to amendment, section read as follows: "The Court of Veterans Appeals may appoint such employees as may be necessary to execute the functions vested in the Court. Such appointments shall be made in accordance with the provisions of title 5 governing appointment in the competitive service, except that the Court may classify such positions based upon the classification of comparable positions in the judicial branch. The basic pay of such employees shall be fixed in accordance with subchapter III of chapter 53 of title 5."

Effective Date of 2016 Amendment

Pub. L. 114–315, title II, §202(b), Dec. 16, 2016, 130 Stat. 1549, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to any payment made on or after the first day of the first applicable pay period beginning on or after the date of the enactment of this Act [Dec. 16, 2016]."

Effective Date of 1999 Amendment

Amendment by Pub. L. 106–117 effective Nov. 30, 1999, with savings provision for incumbent chief judge, see section 1036 of Pub. L. 106–117, set out as a note under section 7253 of this title.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Effective Date of 1989 Amendment

Pub. L. 101–94, title II, §204(c), Aug. 16, 1989, 103 Stat. 627, provided that: "Notwithstanding section 401 of the Veterans' Judicial Review Act [Pub. L. 100–687, set out as an Effective Date note under section 7251 of this title], the authority provided by section 4081 [now 7281] of title 38, United States Code, as amended by subsection (a), shall take effect on the date of the enactment of this Act [Aug. 16, 1989]."

Limitation on Conversion of Employees to Competitive Service

Pub. L. 101–94, title II, §204(b), Aug. 16, 1989, 103 Stat. 627, as amended by Pub. L. 105–368, title V, §512(c), Nov. 11, 1998, 112 Stat. 3342, provided that: "Notwithstanding clause (1)(A) of the proviso under the heading 'Court of Veterans Appeals' in chapter XI of [title I of] Public Law 101–45 [formerly set out below], no employee of the United States Court of Appeals for Veterans Claims may be converted to the competitive service without the approval of the Court."

Appointment of Employees Eligible for Noncompetitive Conversion to Position in Competitive Service; Procurement of Experts and Consultants

Pub. L. 101–45, title I, June 30, 1989, 103 Stat. 113, authorized United States Court of Veterans Appeals, during fiscal year 1989, to appoint not to exceed 35 employees to positions in competitive service if certain requirements were met and to procure services of experts and consultants.

§7282. Budget and expenditures

(a) The budget of the Court of Appeals for Veterans Claims as submitted by the Court for inclusion in the budget of the President for any fiscal year shall be included in that budget without review within the executive branch.

(b) The Court may make such expenditures (including expenditures for personal services and rent at the seat of Government and elsewhere, and for law books, books of reference, and periodicals) as may be necessary to execute efficiently the functions vested in the Court.

(c) All expenditures of the Court shall be allowed and paid upon presentation of itemized vouchers signed by the certifying officer designated by the chief judge. Except as provided in section 7285 of this title, all such expenditures shall be paid out of moneys appropriated for purposes of the Court.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4118, §4082; renumbered §7282 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40, §402(b)(1), renumbered section 4082 of this title as this section.

Subsec. (c). Pub. L. 102–40, §402(d)(1), substituted "7285" for "4085".

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7283. Disposition of fees

Except for amounts received pursuant to section 7285 of this title, all fees received by the Court of Appeals for Veterans Claims shall be covered into the Treasury as miscellaneous receipts.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4118, §4083; renumbered §7283 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4083 of this title as this section and substituted "7285" for "4085".

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7284. Fee for transcript of record

The Court of Appeals for Veterans Claims may fix a fee, not in excess of the fee authorized by law to be charged and collected therefor by the clerks of the district courts, for comparing, or for preparing and comparing, a transcript of the record of any proceeding before the Court, or for copying any record, entry, or other paper and the comparison and certification thereof.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4118, §4084; renumbered §7284, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4084 of this title as this section.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7285. Practice and registration fees

(a) The Court of Appeals for Veterans Claims may impose a reasonable periodic registration fee on persons admitted to practice before the Court. The frequency and amount of such fee shall be determined by the Court. The Court may also impose a reasonable registration fee on persons (other than judges of the Court) participating at judicial conferences convened pursuant to section 7286 of this title or in any other court-sponsored activity.

(b) Amounts received by the Court under subsection (a) of this section shall be available to the Court for the following purposes:

(1) Conducting investigations and proceedings, including employing independent counsel, to pursue disciplinary matters.

(2) Defraying the expenses of—

(A) judicial conferences convened pursuant to section 7286 of this title; and

(B) other activities and programs of the Court that are intended to support and foster communication and relationships between the Court and persons practicing before the Court or the study, understanding, public commemoration, or improvement of veterans law or of the work of the Court.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4119, §4085; renumbered §7285, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–103, title VI, §604(a)–(c)(1), Dec. 27, 2001, 115 Stat. 999; Pub. L. 110–389, title VI, §605, Oct. 10, 2008, 122 Stat. 4179.)

Amendments

2008—Subsec. (a). Pub. L. 110–389 inserted "reasonable" after "impose a" in two places and struck out ", except that such amount may not exceed $30 per year" after "by the Court".

2001Pub. L. 107–103, §604(c)(1), substituted "Practice and registration fees" for "Practice fee" in section catchline.

Subsec. (a). Pub. L. 107–103, §604(a), inserted at end "The Court may also impose a registration fee on persons (other than judges of the Court) participating at judicial conferences convened pursuant to section 7286 of this title or in any other court-sponsored activity."

Subsec. (b). Pub. L. 107–103, §604(b), substituted "for the following purposes:" and pars. (1) and (2) for "for the purposes of (1) employing independent counsel to pursue disciplinary matters, and (2) defraying administrative costs for the implementation of the standards of proficiency prescribed for practice before the Court."

1998—Subsec. (a). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40 renumbered section 4085 of this title as this section.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7286. Judicial Conference of the Court

The Chief Judge of the Court of Appeals for Veterans Claims may summon the judges of the Court to an annual judicial conference, at a time and place that the Chief Judge designates, for the purpose of considering the business of the Court and recommending means of improving the administration of justice within the Court's jurisdiction. The Court shall provide by its rules for representation and active participation at such conference by persons admitted to practice before the Court and by other persons active in the legal profession.

(Added Pub. L. 102–82, §2(a), Aug. 6, 1991, 105 Stat. 375; amended Pub. L. 105–368, title V, §512(a)(1), (2)(A), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998Pub. L. 105–368 struck out "of Veterans Appeals" after "Court" in section catchline and substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals" in text.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7287. Administration

Notwithstanding any other provision of law, the Court of Appeals for Veterans Claims may exercise, for purposes of management, administration, and expenditure of funds of the Court, the authorities provided for such purposes by any provision of law (including any limitation with respect to such provision of law) applicable to a court of the United States (as that term is defined in section 451 of title 28), except to the extent that such provision of law is inconsistent with a provision of this chapter.

(Added Pub. L. 107–103, title VI, §605(a), Dec. 27, 2001, 115 Stat. 1000.)

§7288. Annual report

(a) In General.—The chief judge of the Court shall submit to the appropriate committees of Congress each year a report summarizing the workload of the Court for the fiscal year ending during the preceding year.

(b) Elements.—Each report under subsection (a) shall include, with respect to the fiscal year covered by such report, the following information:

(1) The number of appeals filed with the Court.

(2) The number of petitions filed with the Court.

(3) The number of applications filed with the Court under section 2412 of title 28.

(4) The total number of dispositions by each of the following:

(A) The Court as a whole.

(B) The Clerk of the Court.

(C) A single judge of the Court.

(D) A multi-judge panel of the Court.

(E) The full Court.


(5) The number of each type of disposition by the Court, including settlement, affirmation, remand, vacation, dismissal, reversal, grant, and denial.

(6) The median time from filing an appeal to disposition by each of the following:

(A) The Court as a whole.

(B) The Clerk of the Court.

(C) A single judge of the Court.

(D) Multiple judges of the Court (including a multi-judge panel of the Court or the full Court).


(7) The median time from filing a petition to disposition by the Court.

(8) The median time from filing an application under section 2412 of title 28 to disposition by the Court.

(9) The median time from the completion of briefing requirements by the parties to disposition by the Court.

(10) The number of oral arguments before the Court.

(11) The number of cases appealed to the United States Court of Appeals for the Federal Circuit.

(12) The number and status of appeals and petitions pending with the Court and of applications described in paragraph (3) as of the end of such fiscal year.

(13) The number of cases pending with the Court more than 18 months as of the end of such fiscal year.

(14) A summary of any service performed for the Court by a recalled retired judge of the Court.

(15) An assessment of the workload of each judge of the Court, including consideration of the following:

(A) The time required of each judge for disposition of each type of case.

(B) The number of cases reviewed by the Court.

(C) The average workload of other Federal judges.


(c) Appropriate Committees of Congress Defined.—In this section, the term "appropriate committees of Congress" means—

(1) the Committee on Veterans' Affairs of the Senate; and

(2) the Committee on Veterans' Affairs of the House of Representatives.

(Added Pub. L. 110–389, title VI, §604(a), Oct. 10, 2008, 122 Stat. 4178.)

SUBCHAPTER IV—DECISIONS AND REVIEW

§7291. Date when Court decision becomes final

(a) A decision of the United States Court of Appeals for Veterans Claims shall become final upon the expiration of the time allowed for filing, under section 7292 of this title, a notice of appeal from such decision, if no such notice is duly filed within such time. If such a notice is filed within such time, such a decision shall become final—

(1) upon the expiration of the time allowed for filing a petition for certiorari with the Supreme Court of the United States, if the decision of the Court of Appeals for Veterans Claims is affirmed or the appeal is dismissed by the United States Court of Appeals for the Federal Circuit and no petition for certiorari is duly filed;

(2) upon the denial of a petition for certiorari, if the decision of the Court of Appeals for Veterans Claims is affirmed or the appeal is dismissed by the United States Court of Appeals for the Federal Circuit; or

(3) upon the expiration of 30 days from the date of issuance of the mandate of the Supreme Court, if that Court directs that the decision of the Court of Appeals for Veterans Claims be affirmed or the appeal dismissed.


(b)(1) If the Supreme Court directs that the decision of the Court of Appeals for Veterans Claims be modified or reversed, the decision of the Court of Appeals for Veterans Claims rendered in accordance with the mandate of the Supreme Court shall become final upon the expiration of 30 days from the time it was rendered, unless within such 30 days either the Secretary or the petitioner has instituted proceedings to have such decision corrected to accord with the mandate, in which event the decision of the Court of Appeals for Veterans Claims shall become final when so corrected.

(2) If the decision of the Court of Appeals for Veterans Claims is modified or reversed by the United States Court of Appeals for the Federal Circuit and if—

(A) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or

(B) the petition for certiorari has been denied, or

(C) the decision of the United States Court of Appeals for the Federal Circuit has been affirmed by the Supreme Court,


then the decision of the Court of Appeals for Veterans Claims rendered in accordance with the mandate of the United States Court of Appeals for the Federal Circuit shall become final upon the expiration of 30 days from the time such decision of the Court of Appeals for Veterans Claims was rendered, unless within such 30 days either the Secretary or the petitioner has instituted proceedings to have such decision corrected so that it will accord with the mandate, in which event the decision of the Court of Appeals for Veterans Claims shall become final when so corrected.

(c) If the Supreme Court orders a rehearing, or if the case is remanded by the United States Court of Appeals for the Federal Circuit to the Court of Appeals for Veterans Claims for a rehearing, and if—

(1) the time allowed for filing a petition for certiorari has expired and no such petition has been duly filed, or

(2) the petition for certiorari has been denied, or

(3) the decision of the United States Court of Appeals for the Federal Circuit has been affirmed by the Supreme Court,


then the decision of the Court of Appeals for Veterans Claims rendered upon such rehearing shall become final in the same manner as though no prior decision of the Court of Appeals for Veterans Claims had been rendered.

(d) As used in this section, the term "mandate", in case a mandate has been recalled before the expiration of 30 days from the date of issuance thereof, means the final mandate.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4119, §4091; renumbered §7291 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, §4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 105–368, title V, §512(a)(1), (2)(B), Nov. 11, 1998, 112 Stat. 3341.)

Amendments

1998Pub. L. 105–368, §512(a)(2)(B), substituted "Court decision" for "United States Court of Veterans Appeals decision" in section catchline.

Subsecs. (a) to (c). Pub. L. 105–368, §512(a)(1), substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals" wherever appearing.

1991Pub. L. 102–40, §402(b)(1), renumbered section 4091 of this title as this section.

Subsec. (a). Pub. L. 102–40, §402(d)(1), substituted "7292" for "4092" in introductory provisions.

Subsec. (b). Pub. L. 102–83 substituted "Secretary" for "Administrator" in pars. (1) and (2).

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7292. Review by United States Court of Appeals for the Federal Circuit

(a) After a decision of the United States Court of Appeals for Veterans Claims is entered in a case, any party to the case may obtain a review of the decision with respect to the validity of a decision of the Court on a rule of law or of any statute or regulation (other than a refusal to review the schedule of ratings for disabilities adopted under section 1155 of this title) or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the Court in making the decision. Such a review shall be obtained by filing a notice of appeal with the Court of Appeals for Veterans Claims within the time and in the manner prescribed for appeal to United States courts of appeals from United States district courts.

(b)(1) When a judge or panel of the Court of Appeals for Veterans Claims, in making an order not otherwise appealable under this section, determines that a controlling question of law is involved with respect to which there is a substantial ground for difference of opinion and that there is in fact a disagreement between the appellant and the Secretary with respect to that question of law and that the ultimate termination of the case may be materially advanced by the immediate consideration of that question, the judge or panel shall notify the chief judge of that determination. Upon receiving such a notification, the chief judge shall certify that such a question is presented, and any party to the case may then petition the Court of Appeals for the Federal Circuit to decide the question. That court may permit an interlocutory appeal to be taken on that question if such a petition is filed with it within 10 days after the certification by the chief judge of the Court of Appeals for Veterans Claims. Neither the application for, nor the granting of, an appeal under this paragraph shall stay proceedings in the Court of Appeals for Veterans Claims, unless a stay is ordered by a judge of the Court of Appeals for Veterans Claims or by the Court of Appeals for the Federal Circuit.

(2) For purposes of subsections (d) and (e) of this section, an order described in this paragraph shall be treated as a decision of the Court of Appeals for Veterans Claims.

(c) The United States Court of Appeals for the Federal Circuit shall have exclusive jurisdiction to review and decide any challenge to the validity of any statute or regulation or any interpretation thereof brought under this section, and to interpret constitutional and statutory provisions, to the extent presented and necessary to a decision. The judgment of such court shall be final subject to review by the Supreme Court upon certiorari, in the manner provided in section 1254 of title 28.

(d)(1) The Court of Appeals for the Federal Circuit shall decide all relevant questions of law, including interpreting constitutional and statutory provisions. The court shall hold unlawful and set aside any regulation or any interpretation thereof (other than a determination as to a factual matter) that was relied upon in the decision of the Court of Appeals for Veterans Claims that the Court of Appeals for the Federal Circuit finds to be—

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or

(D) without observance of procedure required by law.


(2) Except to the extent that an appeal under this chapter presents a constitutional issue, the Court of Appeals may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.

(e)(1) Upon such review, the Court of Appeals for the Federal Circuit shall have power to affirm or, if the decision of the Court of Appeals for Veterans Claims is not in accordance with law, to modify or reverse the decision of the Court of Appeals for Veterans Claims or to remand the matter, as appropriate.

(2) Rules for review of decisions of the Court of Appeals for Veterans Claims shall be those prescribed by the Supreme Court under section 2072 of title 28.

(Added Pub. L. 100–687, div. A, title III, §301(a), Nov. 18, 1988, 102 Stat. 4120, §4092; amended Pub. L. 101–94, title III, §302(b), Aug. 16, 1989, 103 Stat. 628; renumbered §7292, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–54, §14(e)(5), June 13, 1991, 105 Stat. 287; Pub. L. 102–83, §§4(b)(1), (2)(E), 5(c)(1), Aug. 6, 1991, 105 Stat. 404–406; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 107–330, title IV, §402(a), Dec. 6, 2002, 116 Stat. 2832.)

Amendments

2002—Subsec. (a). Pub. L. 107–330 inserted "a decision of the Court on a rule of law or of" after "the validity of" in first sentence.

1998—Subsecs. (a), (b), (d)(1), (e). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals" wherever appearing.

1991Pub. L. 102–40 renumbered section 4092 of this title as this section.

Subsec. (a). Pub. L. 102–83, §5(c)(1), substituted "1155" for "355".

Subsec. (b)(1). Pub. L. 102–83, §4(b)(1), (2)(E), substituted "Secretary" for "Administrator".

Subsec. (c). Pub. L. 102–54 amended subsec. (c) as in effect immediately before the enactment of Pub. L. 102–40 by substituting "United States Court" for "United States Courts".

1989—Subsec. (d)(1). Pub. L. 101–94 struck out "statute or" before "regulation".

Effective Date of 2002 Amendment

Pub. L. 107–330, title IV, §402(b), Dec. 6, 2002, 116 Stat. 2832, provided that: "The amendment made by subsection (a) [amending this section] shall apply with respect to any appeal—

"(1) filed with the United States Court of Appeals for the Federal Circuit on or after the date of the enactment of this Act [Dec. 6, 2002]; or

"(2) pending with the United States Court of Appeals for the Federal Circuit as of the date of the enactment of this Act in which a decision has not been rendered as of that date."

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Effective Date of 1989 Amendment

Amendment by Pub. L. 101–94 effective as if included in Pub. L. 100–687, div. A, see section 302(c) of Pub. L. 101–94, set out as a note under section 5701 of this title.

SUBCHAPTER V—RETIREMENT AND SURVIVORS ANNUITIES

§7296. Retirement of judges

(a) For purposes of this section:

(1) The term "Court" means the United States Court of Appeals for Veterans Claims.

(2) The term "judge" means a judge of the Court.


(b)(1) A judge who meets the age and service requirements set forth in the following table may retire:

 
 The judge has attained age:And the years of service as a judge are at least
65 15   
66 14   
67 13   
68 12   
69 11   
70 10   

(2) A judge who is not reappointed following the expiration of the term for which appointed may retire upon the completion of that term if the judge has served as a judge of the Court for 15 years or more.

(3) A judge who becomes permanently disabled and as a result of that disability is unable to perform the duties of the office shall retire.

(c)(1)(A) A judge who is appointed on or after the date of the enactment of the Veterans' Benefits Improvement Act of 2008 and who retires under subsection (b) and elects under subsection (d) to receive retired pay under this subsection shall (except as provided in paragraph (2)) receive retired pay as follows:

(i) In the case of a judge who is a recall-eligible retired judge under section 7257 of this title, the retired pay of the judge shall (subject to section 7257(d)(2) of this title) be the rate of pay applicable to that judge at the time of retirement, as adjusted from time to time under subsection (f)(3).

(ii) In the case of a judge other than a recall-eligible retired judge, the retired pay of the judge shall be the rate of pay applicable to that judge at the time of retirement.


(B) A judge who retired before the date of the enactment of the Veterans' Benefits Improvement Act of 2008 and elected under subsection (d) to receive retired pay under this subsection, or a judge who retires under subsection (b) and elects under subsection (d) to receive retired pay under this subsection, shall (except as provided in paragraph (2)) receive retired pay as follows:

(i) In the case of a judge who is a recall-eligible retired judge under section 7257 of this title or who was a recall-eligible retired judge under that section and was removed from recall status under subsection (b)(4) of that section by reason of disability, the retired pay of the judge shall be the pay of a judge of the court.

(ii) In the case of a judge who at the time of retirement did not provide notice under section 7257 of this title of availability for service in a recalled status, the retired pay of the judge shall be the rate of pay applicable to that judge at the time of retirement.

(iii) In the case of a judge who was a recall-eligible retired judge under section 7257 of this title and was removed from recall status under subsection (b)(3) of that section, the retired pay of the judge shall be the pay of the judge at the time of the removal from recall status.


(2) An individual who serves as a judge for less than 10 years and who retires under subsection (b)(3) of this section and elects under subsection (d) of this section to receive retired pay under this subsection shall receive retired pay at a rate equal to one-half of the rate of pay in effect at the time of retirement.

(3) Retired pay under this subsection shall begin to accrue on the day following the day on which the individual's salary as judge ceases to accrue and shall continue to accrue during the remainder of the individual's life. Retired pay under this subsection shall be paid in the same manner as the salary of a judge.

(d)(1) A judge may elect to receive retired pay under subsection (c) of this section. Such an election—

(A) may be made only while an individual is a judge (except that, in the case of an individual who fails to be reappointed as judge at the expiration of a term of office, the election may be made at any time before the date after the day on which the individual's successor takes office); and

(B) may not be revoked after the retired pay begins to accrue.


(2) In the case of a judge other than the chief judge, such an election shall be made by filing notice of the election in writing with the chief judge. In the case of the chief judge, such an election shall be made by filing notice of the election in writing with the Director of the Office of Personnel Management.

(3) The chief judge shall transmit to the Director of the Office of Personnel Management a copy of each notice filed with the chief judge under this subsection.

(e) If an individual for whom an election to receive retired pay under subsection (c) is in effect accepts compensation for employment with the United States, the individual shall, to the extent of the amount of that compensation, forfeit all rights to retired pay under subsection (c) of this section for the period for which the compensation is received.

(f)(1) Except as otherwise provided in this subsection, the provisions of the civil service retirement laws (including the provisions relating to the deduction and withholding of amounts from basic pay, salary, and compensation) shall apply with respect to service as a judge as if this section had not been enacted.

(2) In the case of any individual who has filed an election to receive retired pay under subsection (c) of this section—

(A) no annuity or other payment shall be payable to any person under the civil service retirement laws with respect to any service performed by such individual (whether performed before or after such election is filed and whether performed as judge or otherwise) except as authorized by section 8440d of title 5;

(B) no deduction for purposes of the Civil Service Retirement and Disability Fund shall be made from retired pay payable to that individual under subsection (c) of this section or from any other salary, pay, or compensation payable to that individual, for any period beginning after the day on which such election is filed; and

(C) such individual shall be paid the lump-sum credit computed under section 8331(8) or 8401(a) of title 5, whichever applies, upon making application therefor with the Office of Personnel Management.


(3)(A) A cost-of-living adjustment provided by law in annuities payable under civil service retirement laws shall apply to retired pay under this section only in the case of retired pay computed under paragraph (1)(A)(i) or (2) of subsection (c).

(B) If such a cost-of-living adjustment would (but for this subparagraph) result in the retired pay of a retired judge being in excess of the annual rate of pay in effect for judges of the Court as provided in section 7253(e) of this title, such adjustment may be made only in such amount as results in the retired pay of the retired judge being equal to that annual rate of pay (as in effect on the effective date of such adjustment).

(g)(1) A judge who becomes permanently disabled and as a result of that disability is unable to perform the duties of the office shall certify to the President in writing that such permanent disability exists. If the chief judge retires for such a disability, the retirement of the chief judge shall not take effect until concurred in by the President. If any other judge retires for such a disability, the chief judge shall furnish to the President a certificate of disability signed by the chief judge.

(2) Whenever the President finds that a judge has become permanently disabled and as a result of that disability is unable to perform the duties of the office, the President shall declare that judge to be retired. Before a judge may be retired under this paragraph, the judge shall be provided with a full specification of the reasons for the retirement and an opportunity to be heard.

(h)(1) An individual who has filed an election to receive retired pay under subsection (c) of this section may revoke such election at any time before the first day on which retired pay would (but for such revocation) begin to accrue with respect to such individual.

(2) Any revocation under this subsection shall be made by filing a notice of the election in writing with the Director of the Office of Personnel Management. The Office of Personnel Management shall transmit to the chief judge a copy of each notice filed under this subsection.

(3) In the case of a revocation under this subsection—

(A) for purposes of this section, the individual shall be treated as not having filed an election to receive retired pay under subsection (c) of this section;

(B) for purposes of section 7297 of this title

(i) the individual shall be treated as not having filed an election under section 7297(b) of this title, and

(ii) section 7297(e) of this title shall not apply and the amount credited to such individual's account (together with interest at 3 percent per year, compounded on December 31 of each year to the date on which the revocation is filed) shall be returned to the individual;


(C) no credit shall be allowed for any service as a judge of the Court unless with respect to such service either there has been deducted and withheld the amount required by the civil service retirement laws or there has been deposited in the Civil Service Retirement and Disability Fund an amount equal to the amount so required, with interest;

(D) the Court shall deposit in the Civil Service Retirement and Disability Fund an amount equal to the additional amount it would have contributed to such Fund but for the election under subsection (d); and

(E) if subparagraphs (C) and (D) of this paragraph are complied with, service on the Court shall be treated as service with respect to which deductions and contributions had been made during the period of service.


(i)(1) Beginning with the next pay period after the Director of the Office of Personnel Management receives a notice under subsection (d) of this section that a judge has elected to receive retired pay under this section, the Director shall deduct and withhold 1 percent of the salary of such judge. Amounts shall be so deducted and withheld in a manner determined by the Director. Amounts deducted and withheld under this subsection shall be deposited in the Treasury of the United States to the credit of the Court of Appeals for Veterans Claims Judges Retirement Fund. Deductions under this subsection from the salary of a judge shall terminate upon the retirement of the judge or upon the completion of 15 years of service for which either deductions under this subsection or a deposit under subsection (j) of this section has been made, whichever occurs first.

(2) Each judge who makes an election under subsection (d) of this section shall be considered to agree to the deductions from salary which are made under paragraph (1) of this subsection.

(j) A judge who makes an election under subsection (d) of this section shall deposit, for service on the Court performed before the election for which contributions may be made under this section, an amount equal to 1 percent of the salary received for the first years, not exceeding 15 years, of that service. Retired pay may not be allowed until a deposit required by this subsection has been made.

(k) The amounts deducted and withheld under subsection (i) of this section, and the amounts deposited under subsection (j) of this section, shall be deposited in the Court of Appeals for Veterans Claims Retirement Fund for credit to individual accounts in the name of each judge from whom such amounts are received.

(Added Pub. L. 101–94, title I, §101(a), Aug. 16, 1989, 103 Stat. 617, §4096; renumbered §7296 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–82, §5(c)(1), Aug. 6, 1991, 105 Stat. 376; Pub. L. 102–198, §7(c)(4)(D), Dec. 9, 1991, 105 Stat. 1625; Pub. L. 105–368, title V, §512(a)(1), Nov. 11, 1998, 112 Stat. 3341; Pub. L. 106–117, title X, §§1022, 1035(2), Nov. 30, 1999, 113 Stat. 1592, 1595; Pub. L. 107–103, title VI, §602, Dec. 27, 2001, 115 Stat. 999; Pub. L. 110–389, title VI, §603(b)(1), (2), Oct. 10, 2008, 122 Stat. 4177, 4178.)

References in Text

The date of the enactment of the Veterans' Benefits Improvement Act of 2008, referred to in subsec. (c)(1), is the date of enactment of Pub. L. 110–389, which was approved Oct. 10, 2008.

The Civil Service Retirement and Disability Fund, referred to in subsecs. (f)(2)(B) and (h)(3)(C), (D), is provided for in section 8348 of Title 5, Government Organization and Employees.

Amendments

2008—Subsec. (c)(1). Pub. L. 110–389, §603(b)(1), added par. (1) and struck out former par. (1), which related to retirement pay structure for retired judges based on recall status.

Subsec. (f)(3)(A). Pub. L. 110–389, §603(b)(2), substituted "paragraph (1)(A)(i) or (2)" for "paragraph (2)".

2001—Subsec. (b)(2). Pub. L. 107–103 struck out at end: "In order to retire under this paragraph, a judge must, not earlier than 9 months preceding the date of the expiration of the judge's term of office and not later than 6 months preceding such date, advise the President in writing that the judge is willing to accept reappointment to the Court."

1999—Subsec. (a)(2). Pub. L. 106–117, §1035(2), substituted "a judge" for "the chief judge or an associate judge".

Subsec. (c)(1). Pub. L. 106–117, §1022(a), substituted "as follows:" for "at the rate of pay in effect at the time of retirement." and added subpars. (A) to (C).

Subsec. (f)(3). Pub. L. 106–117, §1022(b), added par. (3).

1998—Subsecs. (a)(1), (i)(1), (k). Pub. L. 105–368 substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

1991Pub. L. 102–40, §402(b)(1), renumbered section 4096 of this title as this section.

Subsec. (f)(2)(A). Pub. L. 102–198 substituted "8440d" for "8440c".

Pub. L. 102–82 inserted before semicolon at end "except as authorized by section 8440c of title 5".

Subsec. (h)(3)(B). Pub. L. 102–40, §402(d)(1), substituted "7297" for "4097" in introductory provisions, "7297(b)" for "4097(b)" in cl. (i), and "7297(e)" for "4097(e)" in cl. (ii).

Effective Date of 1999 Amendment

Amendment by section 1035(2) of Pub. L. 106–117 effective Nov. 30, 1999, with savings provision for incumbent chief judge, see section 1036 of Pub. L. 106–117, set out as a note under section 7253 of this title.

Effective Date of 1998 Amendment

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

Transitional Provisions To Stagger Terms of Judges

Pub. L. 106–117, title X, §1002, Nov. 30, 1999, 113 Stat. 1588, provided that: "In this title [see Short Title of 1999 Amendments note set out under section 101 of this title], the term 'Court' means the United States Court of Appeals for Veterans Claims."

Pub. L. 106–117, title X, §§1011, 1012, Nov. 30, 1999, 113 Stat. 1588, 1590, provided that:

"SEC. 1011. EARLY RETIREMENT AUTHORITY FOR CURRENT JUDGES.

"(a) Retirement Authorized.—One eligible judge may retire in accordance with this section in 2000 or 2001, and one additional eligible judge may retire in accordance with this section in 2001.

"(b) Eligible Judges.—For purposes of this section, an eligible judge is a judge of the Court (other than the chief judge) who—

"(1) has at least 10 years of service creditable under section 7296 of title 38, United States Code;

"(2) has made an election to receive retired pay under section 7296 of such title;

"(3) has at least 20 years of service described in section 7297(l) of such title; and

"(4) is at least 55 years of age.

"(c) Multiple Eligible Judges.—If for any year specified in subsection (a) more than one eligible judge provides notice in accordance with subsection (d), the judge who has the greatest seniority as a judge of the Court shall be the judge who is eligible to retire in accordance with this section in that year.

"(d) Notice.—An eligible judge who desires to retire in accordance with this section with respect to any year covered by subsection (a) shall provide to the President and the chief judge of the Court written notice to that effect and stating that the judge agrees to the temporary service requirements of subsection (j). Such notice shall be provided not later than April 1 of that year and shall specify the retirement date in accordance with subsection (e). Notice provided under this subsection shall be irrevocable.

"(e) Date of Retirement.—A judge who is eligible to retire in accordance with this section shall be retired during the calendar year as to which notice is provided pursuant to subsection (d), but not earlier than 30 days after the date on which that notice is provided pursuant to subsection (d).

"(f) Applicable Provisions.—Except as provided in subsections (g) and (j), a judge retired in accordance with this section shall be considered for all purposes to be retired under section 7296(b)(1) of title 38, United States Code.

"(g) Applicability of Recall Status Authority.—The provisions of section 7257 of this title shall apply to a judge retired in accordance with this section as if the judge is a judge specified in subsection (a)(2)(A) of that section.

"(h) Rate of Retired Pay.—The rate of retired pay for a judge retiring in accordance with this section is—

"(1) the rate applicable to that judge under section 7296(c)(1) of title 38, United States Code, multiplied by

"(2) the fraction (not in excess of 1) in which—

"(A) the numerator is the number of years of service of the judge as a judge of the Court creditable under section 7296 of such title; and

"(B) the denominator is 15.

"(i) Adjustments in Retired Pay for Judges Available for Recall.—Subject to section 7296(f)(3)(B) of title 38, United States Code, an adjustment provided by law in annuities payable under civil service retirement laws shall apply to retired pay under this section in the case of a judge who is a recall-eligible retired judge under section 7257 of such title or who was a recall-eligible retired judge under that section and was removed from recall status under subsection (b)(4) of that section by reason of disability.

"(j) Duty of Actuary.—[Amended section 7298 of this title.]

"(k) Transitional Service of Judge Retired Under This Section.—(1) A judge who retires under this section shall continue to serve on the Court during the period beginning on the effective date of the judge's retirement under subsection (e) and ending on the earlier of—

"(A) the date on which a person is appointed to the position on the Court vacated by the judge's retirement; and

"(B) the date on which the judge's original appointment to the court would have expired.

"(2) Subsections (f) and (g) of section 7253 of title 38, United States Code, shall apply with respect to the service of a judge on the Court under this section.

"(3) Notwithstanding any other provision of law, a person whose service as a judge of the Court continues under this section shall be paid for the period of service under this subsection at the rate that is the difference between the current rate of pay for a judge of the Court and the rate of the judge's retired pay under subsection (g).

"(4) Amounts paid under paragraph (3)—

"(A) shall not be treated as—

"(i) compensation for employment with the United States for purposes of section 7296(e) of title 38, United States Code, or any provision of title 5, United States Code, relating to the receipt or forfeiture of retired pay or retirement annuities by a person accepting compensation for employment with the United States; or

"(ii) pay for purposes of deductions or contributions for or on behalf of the person to retired pay under subchapter V of chapter 72 of title 38, United States Code, or under chapter 83 or 84 of title 5, United States Code, as applicable; but

"(B) may, at the election of the person, be treated as pay for purposes of deductions or contributions for or on behalf of the person to a retirement or other annuity, or both, under subchapter V of chapter 72 of title 38, United States Code, or under chapter 83 or 84 of title 5, United States Code, as applicable.

"(5) Amounts paid under paragraph (3) shall be derived from amounts available for payment of salaries and benefits of judges of the Court.

"(6) The service as a judge of the Court under this subsection of a person who makes an election provided for under paragraph (4)(B) shall constitute creditable service toward the judge's years of judicial service for purposes of section 7297 of title 38, United States Code, with such service creditable at a rate equal to the rate at which such service would be creditable for such purposes if served by a judge of the Court under chapter 72 of that title. For purposes of subsection (k)(3) of that section, the average annual pay for such service shall be the sum of the judge's retired pay and the amount paid under paragraph (3) of this subsection.

"(7) In the case of such a person who makes an election provided for under paragraph (4)(B), upon the termination of the service of that person as a judge of the Court under this subsection, the retired pay of that person under subsection (g) shall be recomputed to reflect the additional period of service served under this subsection.

"(l) Treatment of Political Party Membership.—For purposes of determining compliance with the last sentence of section 7253(b) of title 38, United States Code, the political party membership of a judge serving on the Court under subsection (j) shall not be taken into account.

"SEC. 1012. MODIFIED TERMS FOR NEXT TWO JUDGES APPOINTED TO THE COURT.

"(a) Modified Terms.—The term of office of the first two judges appointed to the Court after the date of the enactment of this Act [Nov. 30, 1999] shall be 13 years (rather than the period specified in section 7253(c) of title 38, United States Code).

"(b) Eligibility for Retirement.—(1) For purposes of determining the eligibility to retire under section 7296 of title 38, United States Code, of the two judges of the Court whose term of office is determined under subsection (a)—

"(A) the age and service requirements in the table in paragraph (2) shall apply to those judges rather than the otherwise applicable age and service requirements specified in the table in subsection (b)(1) of that section; and

"(B) the minimum years of service applicable to those judges for eligibility to retire under the first sentence of subsection (b)(2) of that section shall be 13 years instead of 15 years.

"(2) The age and service requirements in this paragraph are as follows:

 
 "The judge has attained age:And the years of service as a judge are at least
65 13   
66 13   
67 13   
68 12   
69 11   
70 10."  

Pub. L. 106–117, title X, §1032(b), Nov. 30, 1999, 113 Stat. 1595, provided that: "A person serving as a judge of the Court under section 1011 may not serve as chief judge of the Court."

§7297. Survivor annuities

(a) For purposes of this section:

(1) The term "Court" means the United States Court of Appeals for Veterans Claims.

(2) The term "judge" means a judge of the Court who is in active service or who has retired under section 7296 of this title.

(3) The term "pay" means salary received under section 7253(e) of this title and retired pay received under section 7296 of this title.

(4) The term "retirement fund" means the Court of Appeals for Veterans Claims Retirement Fund established under section 7298 of this title.

(5) The term "surviving spouse" means a surviving spouse of an individual who (A) was married to such individual for at least one year immediately preceding the individual's death, or (B) is a parent of issue by the marriage.

(6) The term "dependent child" has the meaning given the term "child" in section 376(a)(5) of title 28.

(7) The term "Member of Congress" means a Representative, a Senator, a Delegate to Congress, or the Resident Commissioner of Puerto Rico.

(8) The term "assassination" as applied to a judge shall have the meaning provided that term in section 376(a)(7) of title 28 as applied to a judicial official.


(b) A judge may become a participant in the annuity program under this section by filing a written election under this subsection while in office or within six months after the date on which the judge marries if the judge has retired under section 7296 of this title. Any such election shall be made in such manner as may be prescribed by the Court.

(c) There shall be deducted and withheld each pay period from the pay of a judge who has made an election under subsection (b) of this section a sum equal to that percentage of the judge's pay that is the same as provided for the deduction from the salary or retirement salary of a judge of the United States Court of Federal Claims for the purpose of a survivor annuity under section 376(b)(1)(B) of title 28. Amounts so deducted and withheld shall be deposited in the retirement fund. A judge who makes an election under subsection (b) of this section shall be considered by that election to agree to the deductions from the judge's pay required by this subsection.

(d)(1) A judge who makes an election under subsection (b) of this section shall deposit, with interest at 3 percent per year compounded on December 31 of each year, to the credit of the retirement fund, an amount equal to 3.5 percent of the judge's pay and of the judge's basic salary, pay, or compensation for service as a Member of Congress, and for any other civilian service within the purview of section 8332 of title 5. Each such judge may elect to make such deposits in installments during the judge's period of service in such amount and under such conditions as may be determined in each instance by the chief judge. Notwithstanding the failure of a judge to make such deposit, credit shall be allowed for the service rendered, but the annual annuity of the surviving spouse of such judge shall be reduced by an amount equal to 10 percent of the amount of such deposit, computed as of the date of the death of such judge, unless the surviving spouse elects to eliminate such service entirely from credit under subsection (k) of this section. However, a deposit shall not be required from a judge for any year with respect to which deductions from the judge's pay, or a deposit, were actually made (and not withdrawn) under the civil service retirement laws.

(2) The interest required under the first sentence of paragraph (1) shall not be required for any period—

(A) during which a judge was separated from any service described in section 376(d)(2) of title 28; and

(B) during which the judge was not receiving retired pay based on service as a judge or receiving any retirement salary as described in section 376(d)(1) of title 28.


(e) If the service of a judge who makes an election under subsection (b) of this section terminates other than pursuant to the provisions of section 7296 of this title, or if any judge ceases to be married after making the election under subsection (b) of this section and revokes (in a writing filed as provided in subsection (b) of this section) such election, the amount credited to the judge's individual account (together with interest at 3 percent per year compounded on December 31 of each year to the date of the judge's relinquishment of office) shall be returned to the judge. For the purpose of this section, the service of a judge making an election under subsection (b) of this section shall be considered to have terminated pursuant to section 7296 of this title if—

(1) the judge is not reappointed following expiration of the term for which appointed; and

(2) at or before the time of the expiration of that term, the judge is eligible for and elects to receive retired pay under section 7296 of this title.


(f)(1) If a judge who makes an election under subsection (b) of this section dies after having rendered at least 18 months of civilian service (computed as prescribed in subsection (l) of this section), for the last 18 months of which the salary deductions provided for by subsection (c) of this section or the deposits required by subsection (d) of this section have actually been made (and not withdrawn) or the salary deductions required by the civil service retirement laws have actually been made (and not withdrawn)—

(A) if the judge is survived by a surviving spouse but not by a dependent child, there shall be paid to the surviving spouse an annuity beginning with the day of the death of the judge, in an amount computed as provided in subsection (k) of this section; or

(B) if the judge is survived by a surviving spouse and a dependent child or children, there shall be paid to the surviving spouse an immediate annuity in an amount computed as provided in subsection (k) of this section and there shall also be paid to or on behalf of each such child an immediate annuity equal to the lesser of—

(i) 10 percent of the average annual pay of such judge (determined in accordance with subsection (k) of this section), or

(ii) 20 percent of such average annual pay, divided by the number of such children; or


(C) if the judge is not survived by a surviving spouse but is survived by a dependent child or children, there shall be paid to or on behalf of each such child an immediate annuity equal to the lesser of—

(i) 20 percent of the average annual pay of such judge (determined in accordance with subsection (k) of this section), or

(ii) 40 percent of such average annual pay, divided by the number of such children.


(2) The annuity payable to a surviving spouse under this subsection shall be terminated—

(A) upon the surviving spouse's death; or

(B) upon the remarriage of the surviving spouse before age 55.


(3) The annuity payable to a child under this subsection shall be terminated upon the child's death.

(4) In case of the death of a surviving spouse of a judge leaving a dependent child or children of the judge surviving the spouse, the annuity of such child or children under paragraph (1)(B) of this subsection shall be recomputed and paid as provided in paragraph (1)(C) of this subsection. In any case in which the annuity of a dependent child is terminated, the annuities of any remaining dependent child or children, based upon the service of the same judge, shall be recomputed and paid as though the child whose annuity was so terminated had not survived the judge.

(5) If a judge dies as a result of an assassination and leaves a survivor or survivors who are otherwise entitled to receive annuity payments under this section, the 18-month requirement in the matter in paragraph (1) preceding subparagraph (A) shall not apply.

(g) Questions of family relationships, dependency, and disability arising under this section shall be determined in the same manner as such questions arising under chapter 84 of title 5 are determined.

(h)(1) If—

(A) a judge making an election under subsection (b) of this section dies while in office (i) before having rendered 5 years of civilian service computed as prescribed in subsection (l) of this section, or (ii) after having rendered 5 years of such civilian service but without a survivor entitled to annuity benefits provided by subsection (f) of this section; or

(B) the right of all persons entitled to an annuity under subsection (f) of this section based on the service of such judge terminates before a claim for such benefits has been established,


the total amount credited to the individual account of such judge (with interest at 3 percent per year, compounded on December 31 of each year, to the date of the death of such judge) shall be paid in the manner specified in paragraph (2) of this subsection.

(2) An amount payable under paragraph (1) of this subsection shall be paid, upon the establishment of a valid claim therefor, to the person or persons surviving at the date title to the payment arises, in the following order of precedence:

(A) To the beneficiary or beneficiaries whom the judge designated in writing filed before death with the chief judge (except that in the case of the chief judge such designation shall be filed before death as prescribed by the Court).

(B) To the surviving spouse of the judge.

(C) To the child or children of the judge (and the descendants of any deceased children by representation).

(D) To the parents of the judge or the survivor of them.

(E) To the executor or administrator of the estate of the judge.

(F) To such other next of kin of the judge as may be determined by the chief judge to be entitled under the laws of the domicile of the judge at the time of the judge's death.


(3) Determination as to the surviving spouse, child, or parent of a judge for the purposes of paragraph (2) of this subsection shall be made without regard to the definitions in subsection (a) of this section.

(4) Payment under this subsection in the manner provided in this subsection shall be a bar to recovery by any other person.

(5) In a case in which the annuities of all persons entitled to annuity based upon the service of a judge terminate before the aggregate amount of annuity paid equals the total amount credited to the individual account of such judge (with interest at 3 percent per year, compounded on December 31 of each year to the date of the death of the judge), the difference shall be paid, upon establishment of a valid claim therefor, in the order of precedence prescribed in paragraph (2) of this subsection.

(6) Any accrued annuity remaining unpaid upon the termination (other than by death) of the annuity of any individual based upon the service of a judge shall be paid to that individual. Any accrued annuity remaining unpaid upon the death of an individual receiving an annuity based upon the service of a judge shall be paid, upon the establishment of a valid claim therefor, in the following order of precedence:

(A) To the executor or administrator of the estate of that person.

(B) After 30 days after the date of the death of such individual, to such individual or individuals as may appear in the judgment of the chief judge to be legally entitled thereto.


Such payment shall be a bar to recovery by any other individual.

(i) When a payment under this section is to be made to a minor, or to a person mentally incompetent or under other legal disability adjudged by a court of competent jurisdiction, the payment may be made to the person who is constituted guardian or other fiduciary by the law of the State of residence of such claimant or is otherwise legally vested with the care of the claimant or the claimant's estate. If no guardian or other fiduciary of the person under legal disability has been appointed under the laws of the State of residence of the claimant, the chief judge shall determine the person who is otherwise legally vested with the care of the claimant or the claimant's estate.

(j) Annuities under this section shall accrue monthly and shall be due and payable in monthly installments on the first business day of the month following the month or other period for which the annuity has accrued. An annuity under this section is not assignable, either in law or in equity, or subject to execution, levy, attachment, garnishment, or other legal process.

(k)(1) The annuity of the surviving spouse of a judge making an election under subsection (b) of this section shall be an amount equal to the sum of the following:

(A) The product of—

(i) 1.5 percent of the judge's average annual pay; and

(ii) the sum of the judge's years of judicial service, the judge's years of prior allowable service as a Member of Congress, the judge's years of prior allowable service performed as a member of the Armed Forces, and the judge's years, not exceeding 15, of prior allowable service performed as a congressional employee (as defined in section 2107 of title 5).


(B) Three-fourths of 1 percent of the judge's average annual pay multiplied by the judge's years of allowable service not counted under subparagraph (A) of this paragraph.


(2) An annuity computed under this subsection may not exceed 50 percent of the judge's average annual pay and may not be less than 25 percent of such average annual pay. Such annuity shall be further reduced in accordance with subsection (d) of this section (if applicable).

(3) For purposes of this subsection, the term "average annual pay", with respect to a judge, means the average annual pay received by the judge for judicial service (including periods in which the judge received retired pay under section 7296(d) of this title) or for any other prior allowable service during the period of three consecutive years in which the judge received the largest such average annual pay.

(l) Subject to subsection (d) of this section, the years of service of a judge which are allowable as the basis for calculating the amount of the annuity of the judge's surviving spouse shall include the judge's years of service as a judge of the Court, the judge's years of service as a Member of Congress, the judge's years of active service as a member of the Armed Forces not exceeding 5 years in the aggregate and not including any such service for which credit is allowed for the purposes of retirement or retired pay under any other provision of law, and the judge's years of any other civilian service within the purview of section 8332 of title 5.

(m) Nothing contained in this section shall be construed to prevent a surviving spouse eligible therefor from simultaneously receiving an annuity under this section and any annuity to which such spouse would otherwise be entitled under any other law without regard to this section, but in computing such other annuity service used in the computation of such spouse's annuity under this section shall not be credited.

(n) A judge making an election under subsection (b) of this section shall, at the time of such election, waive all benefits under the civil service retirement laws except section 8440d of title 5. Such a waiver shall be made in the same manner and shall have the same force and effect as an election filed under section 7296(d) of this title.

(o) Each survivor annuity payable from the retirement fund shall be increased at the same time as, and by the same percentage by which, annuities payable from the Judicial Survivors' Annuities Fund are increased pursuant to section 376(m) of title 28.

(p)(1) A covered judge who makes an election under subsection (b) may purchase, in 3-month increments, up to an additional year of service credit for each year of Federal judicial service completed, under the terms set forth in this section.

(2) In this subsection, the term "covered judge" means any of the following:

(A) A judge in regular active service.

(B) A retired judge who is a recall-eligible retired judge pursuant to subsection (a) of section 7257 of this title.

(C) A retired judge who would be a recall-eligible retired judge pursuant to subsection (a) of section 7257 but for—

(i) meeting the aggregate recall service requirements under subsection (b)(3) of such section; or

(ii) being permanently disabled as described by subsection (b)(4) of such section.

(Added Pub. L. 101–94, title I, §101(a), Aug. 16, 1989, 103 Stat. 620, §4097; renumbered §7297 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–54, §14(e)(6), June 13, 1991, 105 Stat. 287; Pub. L. 102–82, §5(c)(2), Aug. 6, 1991, 105 Stat. 376; Pub. L. 102–198, §7(c)(4)(E), Dec. 9, 1991, 105 Stat. 1625; Pub. L. 105–368, title V, §§503, 512(a)(1), Nov. 11, 1998, 112 Stat. 3340, 3341; Pub. L. 106–117, title X, §§1023, 1035(2), Nov. 30, 1999, 113 Stat. 1592, 1595; Pub. L. 114–315, title II, §203, Dec. 16, 2016, 130 Stat. 1549.)

Amendments

2016—Subsec. (p). Pub. L. 114–315 added subsec. (p).

1999—Subsec. (a)(2). Pub. L. 106–117, §1035(2), substituted "a judge" for "the chief judge or an associate judge".

Pub. L. 106–117, §1023(e)(2)(A), inserted "who is in active service or who has retired under section 7296 of this title" after "Court".

Subsec. (a)(3). Pub. L. 106–117, §1023(e)(2)(B), substituted "7296" for "7296(c)".

Subsec. (a)(5). Pub. L. 106–117, §1023(a), substituted "one year" for "two years".

Subsec. (a)(8). Pub. L. 106–117, §1023(e)(2)(C), added par. (8).

Subsec. (b). Pub. L. 106–117, §1023(b), inserted "or within six months after the date on which the judge marries if the judge has retired under section 7296 of this title" before the period at end of first sentence.

Subsec. (c). Pub. L. 106–117, §1023(c), substituted "that percentage of the judge's pay that is the same as provided for the deduction from the salary or retirement salary of a judge of the United States Court of Federal Claims for the purpose of a survivor annuity under section 376(b)(1)(B) of title 28" for "3.5 percent of the judge's pay".

Subsec. (d). Pub. L. 106–117, §1023(d), designated existing provisions as par. (1) and added par. (2).

Subsec. (f)(1). Pub. L. 106–117, §1023(e)(1)(A), in introductory provisions, substituted "at least 18 months" for "at least 5 years" and "last 18 months" for "last 5 years".

Subsec. (f)(1)(A). Pub. L. 106–117, §1023(f), struck out "or following the surviving spouse's attainment of the age of 50 years, whichever is the later" after "death of the judge".

Subsec. (f)(5). Pub. L. 106–117, §1023(e)(1)(B), added par. (5).

1998—Subsec. (a)(1), (4). Pub. L. 105–368, §512(a)(1), substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

Subsec. (o). Pub. L. 105–368, §503, amended subsec. (o) generally. Prior to amendment, subsec. (o) read as follows: "Whenever the salaries of judges paid under section 7253(e) of this title are increased, each annuity payable from the retirement fund which is based, in whole or in part, upon a deceased judge having rendered some portion of that judge's final 18 months of service as a judge of the Court, shall also be increased. The amount of the increase in the annuity shall be determined by multiplying the amount of the annuity on the date on which the increase in salaries becomes effective by 3 percent for each full 5 percent by which those salaries were increased."

1991Pub. L. 102–40, §402(b)(1), renumbered section 4097 of this title as this section.

Subsec. (a)(3). Pub. L. 102–40, §402(d)(1), substituted "7253(e)" for "4053(e)" and "7296(c)" for "4096(c)".

Subsec. (a)(4). Pub. L. 102–40, §402(d)(1), substituted "7298" for "4098".

Subsec. (e). Pub. L. 102–40, §402(d)(1), substituted "7296" for "4096" wherever appearing.

Subsec. (h)(1)(A)(i). Pub. L. 102–54 amended subsec. (h)(1)(A)(i) as in effect immediately before the enactment of Pub. L. 102–40 by substituting "subsection (l)" for "subsection (1)".

Subsec. (k)(3). Pub. L. 102–40, §402(d)(1), substituted "7296(d)" for "4096(d)".

Subsec. (n). Pub. L. 102–198 substituted "8440d" for "8440c".

Pub. L. 102–82 inserted "except section 8440c of title 5" before period at end of first sentence.

Pub. L. 102–40, §402(d)(1), substituted "7296(d)" for "4096(d)".

Subsec. (o). Pub. L. 102–40, §402(d)(1), substituted "7253(e)" for "4053(e)".

Effective Date of 1999 Amendment

Amendment by section 1035(2) of Pub. L. 106–117 effective Nov. 30, 1999, with savings provision for incumbent chief judge, see section 1036 of Pub. L. 106–117, set out as a note under section 7253 of this title.

Effective Date of 1998 Amendment

Amendment by section 512(a)(1) of Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7298. Retirement Fund

(a) There is established in the Treasury a fund known as the Court of Appeals for Veterans Claims Retirement Fund.

(b) Amounts in the fund are available for the payment of judges' retired pay under section 7296 of this title and of annuities, refunds, and allowances under section 7297 of this title.

(c) Amounts deposited by, or deducted and withheld from the salary and retired pay of, a judge under section 7296 or 7297 of this title shall be deposited in the fund and credited to an individual account of the judge.

(d) The chief judge of the Court of Appeals for Veterans Claims shall submit to the President an annual estimate of the expenditures and appropriations necessary for the maintenance and operation of the fund, and such supplemental and deficiency estimates as may be required from time to time for the same purposes, according to law.

(e)(1) The chief judge may cause periodic examinations of the retirement fund to be made by an actuary, who may be an actuary employed by another department of the Government temporarily assigned for the purpose.

(2)(A) Subject to the availability of appropriations, there shall be deposited in the Treasury to the credit of the retirement fund, not later than the close of each fiscal year, such amounts as may be required to reduce to zero the unfunded liability (if any) of the fund. Such deposits shall be taken from sums available for that fiscal year for the payment of the expenses of the Court.

(B) For purposes of subparagraph (A) of this paragraph, the term "unfunded liability", with respect to any fiscal year, means the amount estimated by the chief judge to be equal to the excess (as of the close of that fiscal year) of—

(i) the present value of all benefits payable from the fund (determined on an annual basis in accordance with section 9503 of title 31), over

(ii) the sum of—

(I) the present values of future deductions under sections 7296(i) and 7297(c) of this title and future deposits under sections 7296(j) and 7296(d) of this title, and

(II) the balance in the fund as of the close of the fiscal year.


(C) For purposes of subparagraph (B), the term "present value" includes a value determined by an actuary with respect to a payment that may be made under subsection (b) from the retirement fund within the contemplation of law.

(D) Amounts deposited in the retirement fund under this paragraph shall not be credited to the account of any individual.

(f) The Secretary of the Treasury shall invest from time to time, in interest-bearing securities of the United States, such portions of the retirement fund as in such Secretary's judgment may not be immediately required for payments from the fund. The income derived from such investments shall constitute a part of the fund.

(g) For purpose of section 255(g)(1)(B) of the Balanced Budget and Emergency Deficit Control Act of 1985 (2 U.S.C. 905(g)(1)(B)), the retirement fund shall be treated in the same manner as the Claims Judges' Retirement Fund.

(Added Pub. L. 101–94, title I, §101(a), Aug. 16, 1989, 103 Stat. 625, §4098; renumbered §7298 and amended Pub. L. 102–40, title IV, §402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 105–368, title V, §§502, 512(a)(1), (2)(C), Nov. 11, 1998, 112 Stat. 3340, 3341; Pub. L. 106–117, title X, §1011(j), Nov. 30, 1999, 113 Stat. 1589.)

Amendments

1999—Subsec. (e)(2)(C), (D). Pub. L. 106–117 added subpar. (D) and redesignated former subpar. (C) as (D).

1998Pub. L. 105–368, §512(a)(2)(C), struck out "Court of Veterans Appeals" before "Retirement Fund" in section catchline.

Subsecs. (a), (d). Pub. L. 105–368, §512(a)(1), substituted "Court of Appeals for Veterans Claims" for "Court of Veterans Appeals".

Subsec. (g). Pub. L. 105–368, §502, added subsec. (g).

1991Pub. L. 102–40, §402(b)(1), renumbered section 4098 of this title as this section.

Subsecs. (b), (c). Pub. L. 102–40, §402(d)(1), substituted "7296" for "4096" and "7297" for "4097".

Subsec. (e)(2)(B)(ii)(I). Pub. L. 102–40, §402(d)(1), substituted "7296(i) and 7297(c)" for "4096(i) and 4097(c)" and "7296(j) and 7296(d)" for "4096(j) and 4096(d)".

Effective Date of 1998 Amendment

Amendment by section 512(a)(1), (2)(C) of Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub. L. 105–368, set out as a note under section 7251 of this title.

§7299. Limitation on activities of retired judges

(a) A retired judge of the Court who is recall-eligible under section 7257 of this title and who in the practice of law represents (or supervises or directs the representation of) a client in making any claim relating to veterans' benefits against the United States or any agency thereof shall, pursuant to such section, be considered to have declined recall service and be removed from the status of a recall-eligible judge. The pay of such a judge, pursuant to section 7296 of this title, shall be the pay of the judge at the time of the removal from recall status.

(b) A recall-eligible judge shall be considered to be an officer or employee of the United States, but only during periods when the judge is serving in recall status. Any prohibition, limitation, or restriction that would otherwise apply to the activities of a recall-eligible judge shall apply only during periods when the judge is serving in recall status.

(Added Pub. L. 106–117, title X, §1024(a), Nov. 30, 1999, 113 Stat. 1593.)

CHAPTER 73—VETERANS HEALTH ADMINISTRATION—ORGANIZATION AND FUNCTIONS

SUBCHAPTER I—ORGANIZATION

Sec.
7301.
Functions of Veterans Health Administration: in general.
7302.
Functions of Veterans Health Administration: health-care personnel education and training programs.
7303.
Functions of Veterans Health Administration: research programs.
7304.
Regulations.
7305.
Divisions of Veterans Health Administration.
7306.
Office of the Under Secretary for Health.
7307.
Office of Research Oversight.
7308.
Office of Rural Health.
7309.
Readjustment Counseling Service.
7309A.
Office of Patient Advocacy.

        

SUBCHAPTER II—GENERAL AUTHORITY AND ADMINISTRATION

7311.
Quality assurance.
7311A.
Quality management officers.
7312.
Special medical advisory group.
7313.
Advisory committees: affiliated institutions.
7314.
Geriatric research, education, and clinical centers.
7315.
Geriatrics and Gerontology Advisory Committee.
7316.
Malpractice and negligence suits: defense by United States.
7317.
Hazardous research projects: indemnification of contractors.
7318.
National Center for Preventive Health.
7319.
Mammography quality standards.
7320.
Centers for mental illness research, education, and clinical activities.
7321.
Committee on Care of Severely Chronically Mentally Ill Veterans.
7321A.
Committee on Care of Veterans with Traumatic Brain Injury.
7322.
Breast cancer mammography policy.
7323.
Required consultations with nurses.
7324.
Annual report on use of authorities to enhance retention of experienced nurses.
7325.
Medical emergency preparedness centers.
7326.
Education and training programs on medical response to consequences of terrorist activities.
7327.
Centers for research, education, and clinical activities on complex multi-trauma associated with combat injuries.
7328.
Medical preparedness centers.
7329.
Parkinson's Disease research, education, and clinical centers.
7330.
Multiple sclerosis centers of excellence.
7330A.
Epilepsy centers of excellence.
7330B.
Annual report on Veterans Health Administration and furnishing of hospital care, medical services, and nursing home care.
7330C.
Quadrennial Veterans Health Administration review.

        

SUBCHAPTER III—PROTECTION OF PATIENT RIGHTS

7331.
Informed consent.
7332.
Confidentiality of certain medical records.
7333.
Nondiscrimination against alcohol and drug abusers and persons infected with the human immunodeficiency virus.
7334.
Regulations.

        

SUBCHAPTER IV—RESEARCH CORPORATIONS

7361.
Authority to establish; status.
7362.
Purpose of corporations.
7363.
Board of directors; executive director.
7364.
General powers.
[7364A.
Renumbered.]
7365.
Coverage of employees under certain Federal tort claims laws.
7366.
Accountability and oversight.
[7367, 7368. Repealed.]

        

Amendments

2018Pub. L. 115–182, title I, §106(b), June 6, 2018, 132 Stat. 1415, added item 7330C.

2016Pub. L. 114–315, title VI, §612(b), Dec. 16, 2016, 130 Stat. 1576, added item 7330B.

Pub. L. 114–198, title IX, §924(b), July 22, 2016, 130 Stat. 769, added item 7309A.

2013Pub. L. 112–239, div. A, title VII, §728(b), Jan. 2, 2013, 126 Stat. 1813, added item 7309.

2010Pub. L. 111–275, title X, §1001(n)(1), Oct. 13, 2010, 124 Stat. 2897, substituted "the human immunodeficiency virus" for "human immunodeficiency virus" in item 7333.

Pub. L. 111–163, title V, §§505(a)(2), 515(b), title VIII, §805(b), May 5, 2010, 124 Stat. 1159, 1166, 1179, added items 7311A, 7321A, and 7365 and struck out former items 7364A "Coverage of employees under certain Federal tort claims laws" and 7365 "Applicable State law".

2008Pub. L. 110–387, title IV, §404(b), title VIII, §806(b), Oct. 10, 2008, 122 Stat. 4129, 4141, added item 7330A and struck out item 7368 "Expiration of authority".

2006Pub. L. 109–461, title X, §1006(b), Dec. 22, 2006, 120 Stat. 3468, provided that as of the enactment of Pub. L. 109–461, the amendments made by Pub. L. 109–444 were deemed for all purposes not to have taken effect and that Pub. L. 109–444 ceased to be in effect. See Amendment notes below and section 1006(b) of Pub. L. 109–461, set out as a Coordination of Provisions With Pub. L. 109–444 note under section 101 of this title.

Pub. L. 109–461, title II, §§209(a)(2), 212(a)(2), Dec. 22, 2006, 120 Stat. 3418, 3422, added items 7308, 7329, and 7330.

Pub. L. 109–444, §6(a)(2), Dec. 21, 2006, 120 Stat. 3312, which added items 7329 and 7330, was terminated by Pub. L. 109–461, §1006(b). See Amendment notes above.

2004Pub. L. 108–422, title III, §§302(a)(2), 303(c)(2), Nov. 30, 2004, 118 Stat. 2385, 2387, added items 7327 and 7328.

2003Pub. L. 108–170, title IV, §§401(a)(2), 402(a)(2), Dec. 6, 2003, 117 Stat. 2061, 2062, added items 7307 and 7364A.

2002Pub. L. 107–287, §§2(a)(2), 3(a)(2), Nov. 7, 2002, 116 Stat. 2027, 2028, added items 7325 and 7326.

Pub. L. 107–135, title I, §125(a)(2), Jan. 23, 2002, 115 Stat. 2453, added item 7324.

2001Pub. L. 107–14, §8(a)(14)(B), June 5, 2001, 115 Stat. 35, struck out item 7367 "Report to Congress".

2000Pub. L. 106–419, title II, §201(b)(2), Nov. 1, 2000, 114 Stat. 1840, added item 7323.

1997Pub. L. 105–114, title II, §208(a)(2), Nov. 21, 1997, 111 Stat. 2289, added item 7322.

1996Pub. L. 104–262, title III, §§321(a)(2), 334(a)(2), 335(b), Oct. 9, 1996, 110 Stat. 3195, 3203, 3205, added items 7319 to 7321.

1994Pub. L. 103–446, title XII, §1201(h)(3), Nov. 2, 1994, 108 Stat. 4688, inserted "PROTECTION OF" before "PATIENT" in heading for subchapter III.

1992Pub. L. 102–585, title V, §511(a)(2), Nov. 4, 1992, 106 Stat. 4956, added item 7318.

Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984, substituted "Under Secretary for Health" for "Chief Medical Director" in item 7306.

1991Pub. L. 102–40, title IV, §401(a)(1), (3), May 7, 1991, 105 Stat. 210, substituted "VETERANS HEALTH ADMINISTRATION—ORGANIZATION AND FUNCTIONS" for "DEPARTMENT OF MEDICINE AND SURGERY" as chapter heading, added analysis for subchapters I to IV, and struck out former analysis consisting of subchapter I containing items 4101 to 4119 and 4210, subchapter II containing items 4121 to 4124, subchapter III containing items 4131 to 4134, subchapter IV containing items 4141 and 4142, subchapter V containing items 4151 and 4152, and subchapter VI containing items 4161 to 4168.

1990Pub. L. 101–366, title I, §102(d), Aug. 15, 1990, 104 Stat. 436, added heading for subchapter IV and items 4141 and 4142.

1988Pub. L. 100–322, title I, §122(b), title II, §§204(b), 212(a)(2), 216(e)(1), May 20, 1988, 102 Stat. 504, 512, 516, 530, added item 4210 [4120] after item 4119, substituted "Nondiscrimination against alcohol and drug abusers and persons infected with human immunodeficiency virus" for "Nondiscrimination in the admission of alcohol and drug abusers to Veterans' Administration health care facilities" in item 4133, substituted "Regulations" for "Coordination; reports" in item 4134, struck out heading for Subchapter IV, "VETERANS' ADMINISTRATION HEALTH PROFESSIONAL SCHOLARSHIP PROGRAM" and items 4141 "Establishment of program; purpose; duration", 4142 "Eligibility; application; written contract", 4143 "Obligated service", 4144 "Breach of contract; liability; waiver", 4145 "Exemption of scholarship payments from taxation", and 4146 "Program subject to availability of appropriations", and added heading for subchapter VI and items 4161 to 4168.

1986Pub. L. 99–576, title VII, §702(12), Oct. 28, 1986, 100 Stat. 3302, substituted "appointments" for "appointment" in item 4106.

1985Pub. L. 99–166, title II, §204(a)(2), Dec. 3, 1985, 99 Stat. 952, added heading for subchapter V and items 4151 and 4152.

1980Pub. L. 96–330, title I, §116(a)(2), title II, §201(a)(2), Aug. 26, 1980, 94 Stat. 1039, 1047, added item 4119, heading for subchapter IV and items 4141 to 4146.

1976Pub. L. 94–581, title I, §111(a)(2), Oct. 21, 1976, 90 Stat. 2852, added analysis for subchapter III consisting of items 4131 to 4134.

1975Pub. L. 94–123, §2(d)(2), Oct. 22, 1975, 89 Stat. 673, added item 4118.

1973Pub. L. 93–82, title II, §204(b), Aug. 2, 1973, 87 Stat. 192, substituted "Personnel administration" for "Administration" in item 4108.

1972Pub. L. 92–541, §3(b), Oct. 24, 1972, 86 Stat. 1108, designated existing sections as subchapter I and added subchapter II.

1966Pub. L. 89–785, title I, §§109(b), 111(d), 112(b), Nov. 7, 1966, 80 Stat. 1371, 1372, substituted "Special Medical Advisory group; other advisory bodies" for "Medical advisory Group" in item 4112, and "Temporary full-time, part-time, and without compensation appointments" for "Temporary and part-time appointments" in item 4114, and added item 4117.

1965Pub. L. 89–311, §6(b), Oct. 31, 1965, 79 Stat. 1157, added item 4116.

1964Pub. L. 88–426, title I, §117(b), Aug. 14, 1964, 78 Stat. 410, substituted "Office of the Chief Medical Director" for "Appointments and compensation" in item 4103.

1962Pub. L. 87–793, §803(b), Oct. 11, 1962, 76 Stat. 861, substituted "Administration" for "Specialist ratings" in item 4108.

Pub. L. 87–574, §4(3), Aug. 6, 1962, 76 Stat. 309, inserted "; residencies and internships" in item 4114.

SUBCHAPTER I—ORGANIZATION

Prior Provisions

A prior subchapter I of this chapter consisting of sections 4101 to 4120, related to organization of Department of Medicine and Surgery, prior to repeal by Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 210. See Prior Provisions notes set out under sections 4101 to 4110A of this title.

§7301. Functions of Veterans Health Administration: in general

(a) There is in the Department of Veterans Affairs a Veterans Health Administration. The Under Secretary for Health is the head of the Administration. The Under Secretary for Health may be referred to as the Chief Medical Director.

(b) The primary function of the Administration is to provide a complete medical and hospital service for the medical care and treatment of veterans, as provided in this title and in regulations prescribed by the Secretary pursuant to this title.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 211; amended Pub. L. 102–405, title III, §302(c)(1), (2), Oct. 9, 1992, 106 Stat. 1984.)

Amendments

1992—Subsec. (a). Pub. L. 102–405 substituted "Under Secretary for Health is" for "Chief Medical Director is" and inserted at end "The Under Secretary for Health may be referred to as the Chief Medical Director."

§7302. Functions of Veterans Health Administration: health-care personnel education and training programs

(a) In order to carry out more effectively the primary function of the Veterans Health Administration and in order to assist in providing an adequate supply of health personnel to the Nation, the Secretary—

(1) to the extent feasible without interfering with the medical care and treatment of veterans, shall develop and carry out a program of education and training of health personnel; and

(2) shall carry out a major program for the recruitment, training, and employment of veterans with medical military occupation specialties as—

(A) physician assistants;

(B) expanded-function dental auxiliaries; and

(C) other medical technicians.


(b) In carrying out subsection (a)(1), the Secretary shall include in the program of education and training under that subsection the developing and evaluating of new health careers, interdisciplinary approaches, and career advancement opportunities.

(c) In carrying out subsection (a)(2), the Secretary shall include in the program of recruitment, training, and employment under that subsection measures to advise all qualified veterans with military occupation specialties referred to in that subsection, and all members of the armed forces about to be discharged or released from active duty who have such military occupation specialties, of employment opportunities with the Administration.

(d) The Secretary shall carry out subsection (a) in cooperation with the following institutions and organizations:

(1) Schools of medicine, osteopathy, dentistry, nursing, pharmacy, optometry, podiatry, public health, or allied health professions.

(2) Other institutions of higher learning.

(3) Medical centers.

(4) Academic health centers.

(5) Hospitals.

(6) Such other public or nonprofit agencies, institutions, or organizations as the Secretary considers appropriate.


(e)(1) In carrying out this section, the Secretary shall establish medical residency programs, or ensure that already established medical residency programs have a sufficient number of residency positions, at any medical facility of the Department that the Secretary determines—

(A) is experiencing a shortage of physicians; and

(B) is located in a community that is designated as a health professional shortage area (as defined in section 332 of the Public Health Service Act (42 U.S.C. 254e)).


(2) In carrying out paragraph (1), the Secretary shall—

(A) allocate the residency positions under such paragraph among occupations included in the most current determination published in the Federal Register pursuant to section 7412(a) of this title; and

(B) give priority to residency positions and programs in primary care, mental health, and any other specialty the Secretary determines appropriate.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 211; amended Pub. L. 113–146, title III, §301(b)(1), Aug. 7, 2014, 128 Stat. 1784.)

Amendments

2014—Subsec. (e). Pub. L. 113–146 added subsec. (e).

Pilot Program on Graduate Medical Education and Residency

Pub. L. 115–182, title IV, §403, June 6, 2018, 132 Stat. 1472, as amended by Pub. L. 115–251, title II, §211(b)(9), Sept. 29, 2018, 132 Stat. 3177, provided that:

"(a) Establishment.—

"(1) In general.—Subject to paragraph (5), the Secretary of Veterans Affairs shall establish a pilot program to establish medical residency positions authorized under section 301(b)(2) of the Veterans Access, Choice, and Accountability Act of 2014 (Public Law 113–146; 38 U.S.C. 7302 note) at covered facilities.

"(2) Covered facilities.—For purposes of this section, a covered facility is any of the following:

"(A) A health care facility of the Department of Veterans Affairs.

"(B) A health care facility operated by an Indian tribe or a tribal organization, as those terms are defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 5304).

"(C) A health care facility operated by the Indian Health Service.

"(D) A Federally-qualified health center, as defined in section 1905(l)(2)(B) of the Social Security Act (42 U.S.C. 1396d(l)(2)(B)).

"(E) A health care facility operated by the Department of Defense.

"(F) Such other health care facility as the Secretary considers appropriate for purposes of this section.

"(3) Agreements.—To carry out the pilot program under this section, the Secretary may enter into agreements with entities that operate covered facilities in which the Secretary places residents under paragraph (1).

"(4) Parameters for location, affiliate sponsor, and duration.—When determining in which covered facilities to place residents under paragraph (1), the Secretary shall consider the extent to which there is a clinical need for providers in an area, as determined by the following:

"(A) The ratio of veterans to health care providers of the Department for a standardized geographic area surrounding a facility, including a separate ratio for general practitioners and specialists.

"(B) The range of clinical specialties of providers in standardized geographic areas surrounding a facility.

"(C) Whether the specialty of a provider is included in the most recent staffing shortage determination of the Department under section 7412 of title 38, United States Code.

"(D) Whether the local community is designated by the Secretary of Veterans Affairs as underserved pursuant to criteria developed under section 401 of this Act [38 U.S.C. 8110 note].

"(E) Whether the facility is located in a community that is designated by the Secretary of Health and Human Services as a health professional shortage area under section 332 of the Public Health Service Act (42 U.S.C. 254e).

"(F) Whether the facility is located in a rural or remote area.

"(G) Such other criteria as the Secretary considers important in determining which facilities are not adequately serving area veterans.

"(5) Priority in placements.—During the pilot program under this section, the Secretary shall place no fewer than 100 residents in covered facilities—

"(A) operated by the Indian Health Service;

"(B) operated by an Indian tribe;

"(C) operated by a tribal organization; or

"(D) located in communities designated by the Secretary as underserved pursuant to criteria developed under section 401 of this Act [38 U.S.C. 8110 note].

"(6) Stipends and benefits.—The Secretary may pay stipends and provide benefits for residents in positions under paragraph (1), regardless of whether they have been assigned in a Department facility.

"(b) Reimbursement.—If a covered facility establishes a new residency program in which the Secretary places a resident under the pilot program, the Secretary shall reimburse that covered facility for costs of the following:

"(1) Curriculum development.

"(2) Recruitment and retention of faculty.

"(3) Accreditation of the program by the Accreditation Council for Graduate Medical Education.

"(4) The portion of faculty salaries attributable to duties under an agreement under subsection (a)(3).

"(5) Expenses relating to educating a resident under the pilot program.

"(c) Reporting.—

"(1) In general.—Not later than 1 year after the date of the enactment of this Act [June 6, 2018] and not less frequently than once each year thereafter until the termination of the pilot program, the Secretary shall submit to Congress a report on the implementation of the pilot program.

"(2) Elements.—Each report submitted under paragraph (1) shall include the following with regard to the immediately preceding year, and in comparison to the year immediately preceding that year:

"(A) The number of veterans who received care from residents under the pilot program.

"(B) The number of veterans who received care from each resident per position described in subsection (a)(1) under the pilot program.

"(C) The number of veterans who received care from residents under the pilot program expressed as a percentage of all individuals who received care from such residents.

"(D) The number of clinical appointments for veterans conducted by each resident under the pilot program.

"(E) The number of clinical appointments for veterans conducted by residents per position described in subsection (a)(1) under the pilot program.

"(F) The number of clinical appointments for veterans expressed as a percentage of all clinical appointments conducted by residents under the pilot program.

"(G) The number of positions described in subsection (a)(1) at each covered facility under the pilot program.

"(H) For each position described in subsection (a)(1) in a residency program affiliated with a health care facility of the Department, the time a resident under the pilot program spent training at that facility of the Department, expressed as a percentage of the total training time for that resident position.

"(I) For each residency program affiliated with a health care facility of the Department, the time all residents under the pilot program spent training at that facility of the Department, expressed as a percentage of the total training time for those residents.

"(J) The time that all residents under the pilot program who are assigned to programs affiliated with health care facilities of the Department spent training at facilities of the Department, expressed as a percentage of the total training time for those residents.

"(K) The cost to the Department of Veterans Affairs under the pilot program in the year immediately preceding the report and since the beginning of the pilot program.

"(L) The cost to the Department of Veterans Affairs per resident placed under the pilot program at each covered facility.

"(M) The number of residents under the pilot program hired by the Secretary to work in the Veterans Health Administration after completion of residency in the year immediately preceding the report and since the beginning of the pilot program.

"(N) The medical specialties pursued by residents under the pilot program.

"(d) Duration.—The pilot program under this section shall terminate on August 7, 2024."

Ten-year Increase

Pub. L. 113–146, title III, §301(b)(2), Aug. 7, 2014, 128 Stat. 1785, as amended by Pub. L. 114–315, title VI, §617(a), Dec. 16, 2016, 130 Stat. 1577, provided that:

"(A) In general.—In carrying out section 7302(e) of title 38, United States Code, as added by paragraph (1), during the 10-year period beginning on the day that is 1 year after the date of the enactment of this Act [Aug. 7, 2014], the Secretary of Veterans Affairs shall increase the number of graduate medical education residency positions at medical facilities of the Department by up to 1,500 positions.

"(B) Priority.—In increasing the number of graduate medical education residency positions at medical facilities of the Department under subparagraph (A), the Secretary shall give priority to medical facilities that—

"(i) as of the date of the enactment of this Act, do not have a medical residency program; and

"(ii) are located in a community that has a high concentration of veterans."

[For definition of "facility of the Department" as used in section 301(b)(2) of Pub. L. 113–146, set out above, see section 2 of Pub. L. 113–146, set out as a note under section 1701 of this title.]

§7303. Functions of Veterans Health Administration: research programs

(a)(1) In order to carry out more effectively the primary function of the Administration and in order to contribute to the Nation's knowledge about disease and disability, the Secretary shall carry out a program of medical research in connection with the provision of medical care and treatment to veterans. Funds appropriated to carry out this section shall remain available until expended.

(2) Such program of medical research shall include biomedical research, mental illness research, prosthetic and other rehabilitative research, and health-care-services research.

(3) Such program shall stress—

(A) research into spinal-cord injuries and other diseases that lead to paralysis of the lower extremities; and

(B) research into injuries and illnesses particularly related to service.


(4) In carrying out such research program, the Secretary shall act in cooperation with the entities described in section 7302(d) of this title.

(b) Prosthetic research shall include research and testing in the field of prosthetic, orthotic, and orthopedic appliances and sensory devices. In order that the unique investigative material and research data in the possession of the Government may result in the improvement of such appliances and devices for all disabled persons, the Secretary (through the Under Secretary for Health) shall make the results of such research available to any person, and shall consult and cooperate with the Secretary of Health and Human Services and the Secretary of Education, in connection with programs carried out under section 204(b)(3) of the Rehabilitation Act of 1973 (relating to the establishment and support of Rehabilitation Engineering Research Centers).

(c)(1) In conducting or supporting clinical research, the Secretary shall ensure that, whenever possible and appropriate—

(A) women who are veterans are included as subjects in each project of such research; and

(B) members of minority groups who are veterans are included as subjects of such research.


(2) In the case of a project of clinical research in which women or members of minority groups will under paragraph (1) be included as subjects of the research, the Secretary shall ensure that the project is designed and carried out so as to provide for a valid analysis of whether the variables being tested in the research affect women or members of minority groups, as the case may be, differently than other persons who are subjects of the research.

(d)(1) The Secretary, in carrying out the Secretary's responsibilities under this section, shall foster and encourage the initiation and expansion of research relating to the health of veterans who are women.

(2) In carrying out this subsection, the Secretary shall consult with the following to assist the Secretary in setting research priorities:

(A) Officials of the Department assigned responsibility for women's health programs and sexual trauma services.

(B) The members of the Advisory Committee on Women Veterans.

(C) Members of appropriate task forces and working groups within the Department (including the Women Veterans Working Group and the Task Force on Treatment of Women Who Suffer Sexual Abuse).

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 211; amended Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 103–452, title I, §102(a), (b)(1), Nov. 2, 1994, 108 Stat. 4785, 4786; Pub. L. 105–220, title IV, §414(c), Aug. 7, 1998, 112 Stat. 1242; Pub. L. 107–135, title II, §205(a), Jan. 23, 2002, 115 Stat. 2460; Pub. L. 108–170, title IV, §401(b), Dec. 6, 2003, 117 Stat. 2061.)

References in Text

Section 204(b)(3) of the Rehabilitation Act of 1973, referred to in subsec. (b), is classified to section 764(b)(3) of Title 29, Labor.

Amendments

2003—Subsec. (e). Pub. L. 108–170 struck out subsec. (e) which read as follows: "Amounts for the activities of the field offices of the Office of Research Compliance and Assurance of the Department shall be derived from amounts appropriated for the Veterans Health Administration for Medical Care (rather than from amounts appropriated for the Veterans Health Administration for Medical and Prosthetic Research)."

2002—Subsec. (e). Pub. L. 107–135 added subsec. (e).

1998—Subsec. (b). Pub. L. 105–220 substituted "section 204(b)(3) of the Rehabilitation Act of 1973" for "section 204(b)(2) of the Rehabilitation Act of 1973 (29 U.S.C. 762(b)(2))".

1994Pub. L. 103–452 transferred text of subsec. (c) to the end of subsec. (a)(1), struck out subsec. (c) designation, and added new subsecs. (c) and (d).

1992—Subsec. (b). Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director".

Applicability to Fiscal Year 2002

Pub. L. 107–135, title II, §205(b), Jan. 23, 2002, 115 Stat. 2460, related to transfer of appropriations for fiscal year 2002 to carry out subsec. (e) of this section for that fiscal year.

Post-Traumatic Stress Disorder Research

Pub. L. 102–405, title I, §122(a), Oct. 9, 1992, 106 Stat. 1981, provided that: "In carrying out research and awarding grants under chapter 73 of title 38, United States Code, the Secretary shall assign a high priority to the conduct of research on mental illness, including research regarding (1) post-traumatic stress disorder, (2) post-traumatic stress disorder in association with substance abuse, and (3) the treatment of those disorders."

Research Relating to Women Veterans' Health

Pub. L. 102–585, title I, §109, Nov. 4, 1992, 106 Stat. 4948, provided for initiation and expansion of research relating to health of women veterans and authorization of appropriations for fiscal years 1993 through 1995 to carry out such studies, prior to repeal by Pub. L. 103–452, title I, §102(b)(2), Nov. 2, 1994, 108 Stat. 4786.

§7304. Regulations

(a) Unless specifically otherwise provided, the Under Secretary for Health shall prescribe all regulations necessary to the administration of the Veterans Health Administration, including regulations relating to—

(1) travel, transportation of household goods and effects, and deductions from pay for quarters and subsistence; and

(2) the custody, use, and preservation of the records, papers, and property of the Administration.


(b) Regulations prescribed by the Under Secretary for Health are subject to the approval of the Secretary.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 212; amended Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984.)

Amendments

1992Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director" in subsecs. (a) and (b).

§7305. Divisions of Veterans Health Administration

The Veterans Health Administration shall include the following:

(1) The Office of the Under Secretary for Health.

(2) A Medical Service.

(3) A Dental Service.

(4) A Podiatric Service.

(5) An Optometric Service.

(6) A Nursing Service.

(7) A Readjustment Counseling Service.

(8) Such other professional and auxiliary services as the Secretary may find to be necessary to carry out the functions of the Administration.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 212; amended Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 112–239, div. A, title VII, §728(c), Jan. 2, 2013, 126 Stat. 1813.)

Amendments

2013—Pars. (7), (8). Pub. L. 112–239 added par. (7) and redesignated former par. (7) as (8).

1992—Par. (1). Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director".

§7306. Office of the Under Secretary for Health

(a) The Office of the Under Secretary for Health shall consist of the following:

(1) The Deputy Under Secretary for Health, who shall be the principal assistant of the Under Secretary for Health and who shall be a qualified doctor of medicine.

(2) The Associate Deputy Under Secretary for Health, who shall be an assistant to the Under Secretary for Health and the Deputy Under Secretary for Health and who shall be a qualified doctor of medicine.

(3) Not to exceed eight Assistant Under Secretaries for Health.

(4) Such Medical Directors as may be appointed to suit the needs of the Department, who shall be either a qualified doctor of medicine or a qualified doctor of dental surgery or dental medicine.

(5) A Director of Nursing Service, who shall be a qualified registered nurse and who shall be responsible to, and report directly to, the Under Secretary for Health for the operation of the Nursing Service.

(6) A Director of Pharmacy Service, a Director of Dietetic Service, a Director of Podiatric Service, and a Director of Optometric Service, who shall be responsible to the Under Secretary for Health for the operation of their respective Services.

(7) Such directors of such other professional or auxiliary services as may be appointed to suit the needs of the Department, who shall be responsible to the Under Secretary for Health for the operation of their respective services.

(8) The Director of the National Center for Preventive Health, who shall be responsible to the Under Secretary for Health for the operation of the Center.

(9) The Director of Physician Assistant Services, who shall—

(A) serve in a full-time capacity at the Central Office of the Department;

(B) be a qualified physician assistant; and

(C) be responsible and report directly to the Chief Patient Care Services Officer of the Veterans Health Administration on all matters relating to the education and training, employment, appropriate use, and optimal participation of physician assistants within the programs and initiatives of the Administration.


(10) Such other personnel as may be authorized by this chapter.


(b) Of the Assistant Under Secretaries for Health appointed under subsection (a)(3)—

(1) not more than two may be persons qualified in the administration of health services who are not doctors of medicine, dental surgery, or dental medicines;

(2) one shall be a qualified doctor of dental surgery or dental medicine who shall be directly responsible to the Under Secretary for Health for the operation of the Dental Service; and

(3) one shall be a qualified physician trained in, or having suitable extensive experience in, geriatrics who shall be responsible to the Under Secretary for Health for evaluating all research, educational, and clinical health-care programs carried out in the Administration in the field of geriatrics and who shall serve as the principal advisor to the Under Secretary for Health with respect to such programs.


(c) Appointments under subsection (a) shall be made by the Secretary. In the case of appointments under paragraphs (1), (2), (3), (4), and (8) of that subsection, such appointments shall be made upon the recommendation of the Under Secretary for Health.

(d) Except as provided in subsection (e)—

(1) any appointment under this section shall be for a period of four years, with reappointment permissible for successive like periods,

(2) any such appointment or reappointment may be extended by the Secretary for a period not in excess of three years, and

(3) any person so appointed or reappointed or whose appointment or reappointment is extended shall be subject to removal by the Secretary for cause.


(e)(1) The Secretary may designate a member of the Chaplain Service of the Department as Director, Chaplain Service, for a period of two years, subject to removal by the Secretary for cause. Redesignation under this subsection may be made for successive like periods or for any period not exceeding two years.

(2) A person designated as Director, Chaplain Service, shall at the end of such person's period of service as Director revert to the position, grade, and status which such person held immediately before being designated Director, Chaplain Service, and all service as Director, Chaplain Service, shall be creditable as service in the former position.

(f) In organizing the Office and appointing persons to positions in the Office, the Under Secretary shall ensure that—

(1) the Office is staffed so as to provide the Under Secretary, through a designated clinician in the appropriate discipline in each instance, with expertise and direct policy guidance on—

(A) unique programs operated by the Administration to provide for the specialized treatment and rehabilitation of disabled veterans (including blind rehabilitation, care of spinal cord dysfunction, mental illness, and long-term care); and

(B) the programs established under section 1712A of this title; and


(2) with respect to the programs established under section 1712A of this title, a clinician with appropriate expertise in those programs is responsible to the Under Secretary for the management of those programs.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 212; amended Pub. L. 102–405, title II, §205, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1983, 1984; Pub. L. 102–585, title V, §511(b), Nov. 4, 1992, 106 Stat. 4956; Pub. L. 103–446, title XII, §1201(c)(3), Nov. 2, 1994, 108 Stat. 4683; Pub. L. 104–262, title III, §344, Oct. 9, 1996, 110 Stat. 3207; Pub. L. 106–419, title II, §206, Nov. 1, 2000, 114 Stat. 1842; Pub. L. 107–135, title I, §131, Jan. 23, 2002, 115 Stat. 2454; Pub. L. 111–163, title V, §514(a), May 5, 2010, 124 Stat. 1165.)

Amendments

2010—Subsec. (a)(9). Pub. L. 111–163 added par. (9) and struck out former par. (9) which read as follows: "The Advisor on Physician Assistants, who shall be a physician assistant with appropriate experience and who shall advise the Under Secretary for Health on all matters relating to the utilization and employment of physician assistants in the Administration."

2002—Subsec. (a)(5). Pub. L. 107–135 inserted ", and report directly to," after "responsible to".

2000—Subsec. (a)(9), (10). Pub. L. 106–419 added par. (9) and redesignated former par. (9) as (10).

1996—Subsec. (f). Pub. L. 104–262 added subsec. (f).

1994—Subsec. (a)(3). Pub. L. 103–446, §1201(c)(3)(A)(i), substituted "Assistant Under Secretaries for Health" for "Assistant Chief Medical Directors".

Pars. (7) to (9). Pub. L. 103–446, §1201(c)(3)(A)(ii)–(iv), redesignated par. (8), relating to such directors, as (7), par. (7) as (8), and par. (8), relating to such other personnel, as (9), and in par. (8), as so redesignated, substituted "Under Secretary for Health" for "Chief Medical Director".

Subsec. (b). Pub. L. 103–446, §1201(c)(3)(B), substituted "Assistant Under Secretaries for Health" for "Assistant Chief Medical Directors".

Subsec. (c). Pub. L. 103–446, §1201(c)(3)(C), substituted "and (8)" for "and (7)".

1992Pub. L. 102–405, §302(c)(1), substituted "Under Secretary for Health" for "Chief Medical Director" in section catchline.

Subsec. (a). Pub. L. 102–405, §302(c)(1), substituted "Under Secretary for Health" for "Chief Medical Director" wherever appearing.

Subsec. (a)(7). Pub. L. 102–585, §511(b)(1)(B), added par. (7). Former par. (7), relating to such directors, redesignated (8).

Pub. L. 102–405, §205(2), added par. (7). Former par. (7), relating to such other personnel, redesignated (8).

Subsec. (a)(8). Pub. L. 102–585, §511(b)(1)(A), redesignated par. (7), relating to such directors, as (8).

Pub. L. 102–405, §205(1), redesignated par. (7), relating to such other personnel, as (8).

Subsec. (b)(2), (3). Pub. L. 102–405, §302(c)(1), substituted "Under Secretary for Health" for "Chief Medical Director" wherever appearing.

Subsec. (c). Pub. L. 102–585, §511(b)(2), substituted "(4), and (7)" for "and (4)".

Pub. L. 102–405, §302(c)(1), substituted "Under Secretary for Health" for "Chief Medical Director".

Deadline for Implementation of 2010 Amendment

Pub. L. 111–163, title V, §514(b), May 5, 2010, 124 Stat. 1165, provided that: "The Secretary of Veterans Affairs shall ensure that an individual is serving as the Director of Physician Assistant Services under paragraph (9) of section 7306(a) of title 38, United States Code, as amended by subsection (a), by not later than 120 days after the date of the enactment of this Act [May 5, 2010]."

§7307. Office of Research Oversight

(a) Requirement for Office.—(1) There is in the Veterans Health Administration an Office of Research Oversight (hereinafter in this section referred to as the "Office"). The Office shall advise the Under Secretary for Health on matters of compliance and assurance in human subjects protections, research safety, and research impropriety and misconduct. The Office shall function independently of entities within the Veterans Health Administration with responsibility for the conduct of medical research programs.

(2) The Office shall—

(A) monitor, review, and investigate matters of medical research compliance and assurance in the Department with respect to human subjects protections; and

(B) monitor, review, and investigate matters relating to the protection and safety of human subjects and Department employees participating in medical research in Department programs.


(b) Director.—(1) The head of the Office shall be a Director, who shall report directly to the Under Secretary for Health (without delegation).

(2) Any person appointed as Director shall be—

(A) an established expert in the field of medical research, administration of medical research programs, or similar fields; and

(B) qualified to carry out the duties of the Office based on demonstrated experience and expertise.


(c) Functions.—(1) The Director shall report to the Under Secretary for Health on matters relating to protections of human subjects in medical research projects of the Department under any applicable Federal law and regulation, the safety of employees involved in Department medical research programs, and suspected misconduct and impropriety in such programs. In carrying out the preceding sentence, the Director shall consult with employees of the Veterans Health Administration who are responsible for the management and conduct of Department medical research programs.

(2) The matters to be reported by the Director to the Under Secretary under paragraph (1) shall include allegations of research impropriety and misconduct by employees engaged in medical research programs of the Department.

(3)(A) When the Director determines that such a recommendation is warranted, the Director may recommend to the Under Secretary that a Department research activity be terminated, suspended, or restricted, in whole or in part.

(B) In a case in which the Director reasonably believes that activities of a medical research project of the Department place human subjects' lives or health at imminent risk, the Director shall direct that activities under that project be immediately suspended or, as appropriate and specified by the Director, be limited.

(d) General Functions.—(1) The Director shall conduct periodic inspections and reviews, as the Director determines appropriate, of medical research programs of the Department. Such inspections and reviews shall include review of required documented assurances.

(2) The Director shall observe external accreditation activities conducted for accreditation of medical research programs conducted in facilities of the Department.

(3) The Director shall investigate allegations of research impropriety and misconduct in medical research projects of the Department.

(4) The Director shall submit to the Under Secretary for Health, the Secretary, and the Committees on Veterans' Affairs of the Senate and House of Representatives a report on any suspected lapse, from whatever cause or causes, in protecting safety of human subjects and others, including employees, in medical research programs of the Department.

(5) The Director shall carry out such other duties as the Under Secretary for Health may require.

(e) Source of Funds.—Amounts for the activities of the Office, including its regional offices, shall be derived from amounts appropriated for the Veterans Health Administration for Medical Care.

(f) Annual Report.—Not later than March 15 each year, the Director shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives a report on the activities of the Office during the preceding calendar year. Each such report shall include, with respect to that year, the following:

(1) A summary of reviews of individual medical research programs of the Department completed by the Office.

(2) Directives and other communications issued by the Office to field activities of the Department.

(3) Results of any investigations undertaken by the Office during the reporting period consonant with the purposes of this section.

(4) Other information that would be of interest to those committees in oversight of the Department medical research program.


(g) Medical Research.—For purposes of this section, the term "medical research" means medical research described in section 7303(a)(2) of this title.

(Added Pub. L. 108–170, title IV, §401(a)(1), Dec. 6, 2003, 117 Stat. 2059.)

§7308. Office of Rural Health

(a) Establishment.—There is established in the Department within the Office of the Under Secretary for Health an office to be known as the "Office of Rural Health" (in this section referred to as the "Office").

(b) Head.—The Director of the Office of Rural Health shall be the head of the Office. The Director of the Office of Rural Health shall be appointed by the Under Secretary of Health from among individuals qualified to perform the duties of the position.

(c) Functions.—The functions of the Office are as follows:

(1) In cooperation with the medical, rehabilitation, health services, and cooperative studies research programs in the Office of Policy and the Office of Research and Development of the Veterans Health Administration, to assist the Under Secretary for Health in conducting, coordinating, promoting, and disseminating research into issues affecting veterans living in rural areas.

(2) To work with all personnel and offices of the Department of Veterans Affairs to develop, refine, and promulgate policies, best practices, lessons learned, and innovative and successful programs to improve care and services for veterans who reside in rural areas of the United States.

(3) To designate in each Veterans Integrated Service Network (VISN) an individual who shall consult on and coordinate the discharge in such Network of programs and activities of the Office for veterans who reside in rural areas of the United States.

(4) To perform such other functions and duties as the Secretary or the Under Secretary for Health considers appropriate.


(d) Rural Health Resource Centers.—(1) There are, in the Office, veterans rural health resource centers that serve as satellite offices for the Office.

(2) The veterans rural health resource centers have purposes as follows:

(A) To improve the understanding of the Office of the challenges faced by veterans living in rural areas.

(B) To identify disparities in the availability of health care to veterans living in rural areas.

(C) To formulate practices or programs to enhance the delivery of health care to veterans living in rural areas.

(D) To develop special practices and products for the benefit of veterans living in rural areas and for implementation of such practices and products in the Department systemwide.

(Added Pub. L. 109–461, title II, §212(a)(1), Dec. 22, 2006, 120 Stat. 3421; amended Pub. L. 112–154, title I, §110, Aug. 6, 2012, 126 Stat. 1175.)

Amendments

Subsec. (d). Pub. L. 112–154 added subsec. (d).

§7309. Readjustment Counseling Service

(a) In General.—There is in the Veterans Health Administration a Readjustment Counseling Service. The Readjustment Counseling Service shall provide readjustment counseling and associated services to individuals in accordance with section 1712A of this title.

(b) Chief Officer.—(1) The head of the Readjustment Counseling Service shall be the Chief Officer of the Readjustment Counseling Service (in this section referred to as the "Chief Officer"), who shall report directly to the Under Secretary for Health.

(2) The Chief Officer shall be appointed by the Under Secretary for Health from among individuals who—

(A)(i) are psychologists who hold a diploma as a doctorate in clinical or counseling psychology from an authority approved by the American Psychological Association and who have successfully undergone an internship approved by that association;

(ii) are holders of a master in social work degree; or

(iii) hold such other advanced degrees related to mental health as the Secretary considers appropriate;

(B) have at least three years of experience providing direct counseling services or outreach services in the Readjustment Counseling Service;

(C) have at least three years of experience administrating direct counseling services or outreach services in the Readjustment Counseling Service;

(D) meet the quality standards and requirements of the Department; and

(E) are veterans who served in combat as members of the Armed Forces.


(c) Structure.—(1) The Readjustment Counseling Service is a distinct organizational element within the Veterans Health Administration.

(2) The Readjustment Counseling Service shall provide counseling and services as described in subsection (a).

(3) The Chief Officer shall have direct authority over all Readjustment Counseling Service staff and assets, including Vet Centers.

(d) Source of Funds.—(1) Amounts for the activities of the Readjustment Counseling Service, including the operations of its Vet Centers, shall be derived from amounts appropriated for the Veterans Health Administration for medical care.

(2) Amounts for activities of the Readjustment Counseling Service, including the operations of its Vet Centers, shall not be allocated through the Veterans Equitable Resource Allocation system.

(3) In each budget request submitted for the Department of Veterans Affairs by the President to Congress under section 1105 of title 31, the budget request for the Readjustment Counseling Service shall be listed separately.

(e) Annual Report.—(1) Not later than March 15 of each year, the Secretary shall 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 activities of the Readjustment Counseling Service during the preceding fiscal year.

(2) Each report submitted under paragraph (1) shall include, with respect to the period covered by the report, the following:

(A) A summary of the activities of the Readjustment Counseling Service, including Vet Centers.

(B) A description of the workload and additional treatment capacity of the Vet Centers, including, for each Vet Center, the ratio of the number of full-time equivalent employees at such Vet Center and the number of individuals who received services or assistance at such Vet Center.

(C) A detailed analysis of demand for and unmet need for readjustment counseling services and the Secretary's plan for meeting such unmet need.


(f) Vet Center Defined.—In this section, the term "Vet Center" has the meaning given the term in section 1712A(h)(1) of this title.

(Added Pub. L. 112–239, div. A, title VII, §728(a), Jan. 2, 2013, 126 Stat. 1812; amended Pub. L. 114–58, title VI, §601(22), Sept. 30, 2015, 129 Stat. 539; Pub. L. 114–315, title VI, §611, Dec. 16, 2016, 130 Stat. 1575.)

Amendments

2016—Subsec. (e)(1). Pub. L. 114–315 substituted "fiscal year" for "calendar year".

2015—Subsec. (c)(1). Pub. L. 114–58 inserted "the" before "Veterans Health Administration".

§7309A. Office of Patient Advocacy

(a) Establishment.—There is established in the Department within the Office of the Under Secretary for Health an office to be known as the "Office of Patient Advocacy" (in this section referred to as the "Office").

(b) Head.—(1) The Director of the Office of Patient Advocacy shall be the head of the Office.

(2) The Director of the Office of Patient Advocacy shall be appointed by the Under Secretary for Health from among individuals qualified to perform the duties of the position and shall report directly to the Under Secretary for Health.

(c) Function.—(1) The function of the Office is to carry out the Patient Advocacy Program of the Department.

(2) In carrying out the Patient Advocacy Program of the Department, the Director shall ensure that patient advocates of the Department—

(A) advocate on behalf of veterans with respect to health care received and sought by veterans under the laws administered by the Secretary;

(B) carry out the responsibilities specified in subsection (d); and

(C) receive training in patient advocacy.


(d) Patient Advocacy Responsibilities.—The responsibilities of each patient advocate at a medical facility of the Department are the following:

(1) To resolve complaints by veterans with respect to health care furnished under the laws administered by the Secretary that cannot be resolved at the point of service or at a higher level easily accessible to the veteran.

(2) To present at various meetings and to various committees the issues experienced by veterans in receiving such health care at such medical facility.

(3) To express to veterans their rights and responsibilities as patients in receiving such health care.

(4) To manage the Patient Advocate Tracking System of the Department at such medical facility.

(5) To compile data at such medical facility of complaints made by veterans with respect to the receipt of such health care at such medical facility and the satisfaction of veterans with such health care at such medical facility to determine whether there are trends in such data.

(6) To ensure that a process is in place for the distribution of the data compiled under paragraph (5) to appropriate leaders, committees, services, and staff of the Department.

(7) To identify, not less frequently than quarterly, opportunities for improvements in the furnishing of such health care to veterans at such medical facility based on complaints by veterans.

(8) To ensure that any significant complaint by a veteran with respect to such health care is brought to the attention of appropriate staff of the Department to trigger an assessment of whether there needs to be a further analysis of the problem at the facility-wide level.

(9) To support any patient advocacy programs carried out by the Department.

(10) To ensure that all appeals and final decisions with respect to the receipt of such health care are entered into the Patient Advocate Tracking System of the Department.

(11) To understand all laws, directives, and other rules with respect to the rights and responsibilities of veterans in receiving such health care, including the appeals processes available to veterans.

(12) To ensure that veterans receiving mental health care, or the surrogate decision-makers for such veterans, are aware of the rights of veterans to seek representation from systems established under section 103 of the Protection and Advocacy for Mentally Ill Individuals Act of 1986 1 (42 U.S.C. 10803) to protect and advocate the rights of individuals with mental illness and to investigate incidents of abuse and neglect of such individuals.

(13) To fulfill requirements established by the Secretary with respect to the inspection of controlled substances.

(14) To document potentially threatening behavior and report such behavior to appropriate authorities.


(e) Training.—In providing training to patient advocates under subsection (c)(2)(C), the Director shall ensure that such training is consistent throughout the Department.

(f) Controlled Substance Defined.—In this section, the term "controlled substance" has the meaning given that term in section 102 of the Controlled Substances Act (21 U.S.C. 802).

(Added Pub. L. 114–198, title IX, §924(a), July 22, 2016, 130 Stat. 767.)

References in Text

The Protection and Advocacy for Mentally Ill Individuals Act of 1986, referred to in subsec. (d)(12), was renamed the Protection and Advocacy for Individuals with Mental Illness Act by Pub. L. 106–310, div. B, title XXXII, §3206(a), Oct. 17, 2000, 114 Stat. 1193.

Date Fully Operational

Pub. L. 114–198, title IX, §924(c), July 22, 2016, 130 Stat. 769, provided that: "The Secretary of Veterans Affairs shall ensure that the Office of Patient Advocacy established under section 7309A of title 38, United States Code, as added by subsection (a), is fully operational not later than the date that is one year after the date of the enactment of this Act [July 22, 2016]."

1 See References in Text note below.

SUBCHAPTER II—GENERAL AUTHORITY AND ADMINISTRATION

Prior Provisions

A prior subchapter II of this chapter consisting of sections 4121 to 4124, related to Regional Medical Education Centers, prior to repeal by Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 210. See Prior Provisions notes set out under section 4114 of this title.

§7311. Quality assurance

(a) The Secretary shall—

(1) establish and conduct a comprehensive program to monitor and evaluate the quality of health care furnished by the Veterans Health Administration (hereinafter in this section referred to as the "quality-assurance program"); and

(2) delineate the responsibilities of the Under Secretary for Health with respect to the quality-assurance program, including the duties prescribed in this section.


(b)(1) As part of the quality-assurance program, the Under Secretary for Health shall periodically evaluate—

(A) whether there are significant deviations in mortality and morbidity rates for surgical procedures performed by the Administration from prevailing national mortality and morbidity standards for similar procedures; and

(B) if there are such deviations, whether they indicate deficiencies in the quality of health care provided by the Administration.


(2) The evaluation under paragraph (1)(A) shall be made using the information compiled under subsection (c)(1). The evaluation under paragraph (1)(B) shall be made taking into account the factors described in subsection (c)(2)(B).

(3) If, based upon an evaluation under paragraph (1)(A), the Under Secretary for Health determines that there is a deviation referred to in that paragraph, the Under Secretary for Health shall explain the deviation in the report submitted under subsection (f).1

(4) As part of the quality-assurance program, the Under Secretary for Health shall establish mechanisms through which employees of Veterans Health Administration facilities may submit reports, on a confidential basis, on matters relating to quality of care in Veterans Health Administration facilities to the quality management officers of such facilities under section 7311A(c) of this title. The mechanisms shall provide for the prompt and thorough review of any reports so submitted by the receiving officials.

(c)(1) The Under Secretary for Health shall—

(A) determine the prevailing national mortality and morbidity standards for each type of surgical procedure performed by the Administration; and

(B) collect data and other information on mortality and morbidity rates in the Administration for each type of surgical procedure performed by the Administration and (with respect to each such procedure) compile the data and other information so collected—

(i) for each medical facility of the Department, in the case of cardiac surgery, heart transplant, and renal transplant programs; and

(ii) in the aggregate, for each other type of surgical procedure.


(2) The Under Secretary for Health shall—

(A) compare the mortality and morbidity rates compiled under paragraph (1)(B) with the national mortality and morbidity standards determined under paragraph (1)(A); and

(B) analyze any deviation between such rates and such standards in terms of the following:

(i) The characteristics of the respective patient populations.

(ii) The level of risk for the procedure involved, based on—

(I) patient age;

(II) the type and severity of the disease;

(III) the effect of any complicating diseases; and

(IV) the degree of difficulty of the procedure.


(iii) Any other factor that the Under Secretary for Health considers appropriate.


(d) Based on the information compiled and the comparisons, analyses, evaluations, and explanations made under subsections (b) and (c), the Under Secretary for Health, in the report under subsection (f),1 shall make such recommendations with respect to quality assurance as the Under Secretary for Health considers appropriate.

(e)(1) The Secretary shall allocate sufficient resources (including sufficient personnel with the necessary skills and qualifications) to enable the Administration to carry out its responsibilities under this section.

(2) The Inspector General of the Department shall allocate sufficient resources (including sufficient personnel with the necessary skills and qualifications) to enable the Inspector General to monitor the quality-assurance program.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 214; amended Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 103–446, title XII, §1201(g)(5), Nov. 2, 1994, 108 Stat. 4687; Pub. L. 111–163, title V, §505(b), May 5, 2010, 124 Stat. 1159.)

References in Text

Subsection (f), referred to in subsecs. (b)(3) and (d), was repealed by Pub. L. 103–446, title XII, §1201(g)(5), Nov. 2, 1994, 108 Stat. 4687.

Amendments

2010—Subsec. (b)(4). Pub. L. 111–163 added par. (4).

1994—Subsecs. (f), (g). Pub. L. 103–446 struck out subsecs. (f) and (g) which read as follows:

"(f)(1) Not later than February 1, 1991, the Under Secretary for Health shall submit to the Secretary a report on the experience through the end of the preceding fiscal year under the quality-assurance program carried out under this section.

"(2) Such report shall include—

"(A) the data and other information compiled and the comparisons, analyses, and evaluations made under subsections (b) and (c) with respect to the period covered by the report; and

"(B) recommendations under subsection (d).

"(g)(1) Not later than 60 days after receiving such report, the Secretary shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives a copy of the report, together with any comment concerning the report that the Secretary considers appropriate.

"(2) A report submitted under paragraph (1) shall not be considered to be a record or document as described in section 5705(a) of this title."

1992—Subsecs. (a) to (d), (f). Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director" wherever appearing.

Comprehensive Policy on Pain Management

Pub. L. 110–387, title V, §501, Oct. 10, 2008, 122 Stat. 4130, provided that:

"(a) Comprehensive Policy Required.—Not later than October 1, 2009, the Secretary of Veterans Affairs shall develop and implement a comprehensive policy on the management of pain experienced by veterans enrolled for health care services provided by the Department of Veterans Affairs.

"(b) Scope of Policy.—The policy required by subsection (a) shall cover each of the following:

"(1) The Department-wide management of acute and chronic pain experienced by veterans.

"(2) The standard of care for pain management to be used throughout the Department.

"(3) The consistent application of pain assessments to be used throughout the Department.

"(4) The assurance of prompt and appropriate pain care treatment and management by the Department, system-wide, when medically necessary.

"(5) Department programs of research related to acute and chronic pain suffered by veterans, including pain attributable to central and peripheral nervous system damage characteristic of injuries incurred in modern warfare.

"(6) Department programs of pain care education and training for health care personnel of the Department.

"(7) Department programs of patient education for veterans suffering from acute or chronic pain and their families.

"(c) Updates.—The Secretary shall revise the policy required by subsection (a) on a periodic basis in accordance with experience and evolving best practice guidelines.

"(d) Consultation.—The Secretary shall develop the policy required by subsection (a), and revise such policy under subsection (c), in consultation with veterans service organizations and organizations with expertise in the assessment, diagnosis, treatment, and management of pain.

"(e) Annual Report.—

"(1) In general.—Not later than 180 days after the date of the completion and initial implementation of the policy required by subsection (a) and on October 1 of every fiscal year thereafter through fiscal year 2018, the Secretary shall 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 implementation of the policy required by subsection (a).

"(2) Contents.—The report required by paragraph (1) shall include the following:

"(A) A description of the policy developed and implemented under subsection (a) and any revisions to such policy under subsection (c).

"(B) A description of the performance measures used to determine the effectiveness of such policy in improving pain care for veterans system-wide.

"(C) An assessment of the adequacy of Department pain management services based on a survey of patients managed in Department clinics.

"(D) An assessment of the research projects of the Department relevant to the treatment of the types of acute and chronic pain suffered by veterans.

"(E) An assessment of the training provided to Department health care personnel with respect to the diagnosis, treatment, and management of acute and chronic pain.

"(F) An assessment of the patient pain care education programs of the Department.

"(f) Veterans Service Organization Defined.—In this section, the term 'veterans service organization' means any organization recognized by the Secretary for the representation of veterans under section 5902 of title 38, United States Code."

Evaluation of Department of Veterans Affairs Nurse Managed Clinics

Pub. L. 107–135, title I, §123, Jan. 23, 2002, 115 Stat. 2451, required the Secretary of Veterans Affairs to evaluate the efficacy of the nurse managed health care clinics of the Department of Veterans Affairs and submit to Congress a report on the evaluation not later than 18 months after Jan. 23, 2002.

Quality Assurance Activities

Pub. L. 102–405, title I, §104, Oct. 9, 1992, 106 Stat. 1975, provided that: "Effective on October 1, 1992, programs and activities which (1) the Secretary carries out pursuant to section 7311(a) of title 38, United States Code, or (2) are described in sections 201(a)(1) and 201(a)(3) of Public Law 100–322 [formerly set out as a note under former section 4151 of this title] (102 Stat. 508) shall be deemed to be part of the operation of hospitals, nursing homes, and domiciliary facilities of the Department of Veterans Affairs, without regard to the location of the duty stations of employees carrying out those programs and activities."

Regulations for Standards of Performance in Laboratories

Pub. L. 102–139, title I, §101, Oct. 28, 1991, 105 Stat. 742, provided that:

"(a) Regulations for Standards of Performance in Department of Veterans Affairs Laboratories.—(1) Within the 120-day period beginning on the date on which the Secretary of Health and Human Services promulgates final regulations to implement the standards required by section 353 of the Public Health Service Act (42 U.S.C. 263a), the Secretary of Veterans Affairs, in accordance with the Secretary's authority under title 38, United States Code, shall prescribe regulations to assure consistent performance by medical facility laboratories under the jurisdiction of the Secretary of valid and reliable laboratory examinations and other procedures. Such regulations shall be prescribed in consultation with the Secretary of Health and Human Services and shall establish standards equal to that applicable to other medical facility laboratories in accordance with the requirements of section 353(f) of the Public Health Service Act.

"(2) Such regulations—

"(A) may include appropriate provisions respecting waivers described in section 353(d) of such Act and accreditations described in section 353(e) of such Act; and

"(B) shall include appropriate provisions respecting compliance with such requirements.

"(b) Report.—Within the 180-day period beginning on the date on which the Secretary of Veterans Affairs prescribes regulations required by subsection (a), the Secretary shall submit to the appropriate committees of the Congress a report on those regulations.

"(c) Definition.—As used in this section, the term 'medical facility laboratories' means facilities for the biological, micro-biological, serological, chemical, immunohematological, hematological, biophysical, cytological, pathological, or other physical examination of materials derived from the human body for the purpose of providing information for the diagnosis, prevention, or treatment of any disease or impairment of, or the assessment of the health of, human beings."

1 See References in Text note below.

§7311A. Quality management officers

(a) National Quality Management Officer.—(1) The Under Secretary for Health shall designate an official of the Veterans Health Administration to act as the principal quality management officer for the quality-assurance program required by section 7311 of this title. The official so designated may be known as the "National Quality Management Officer of the Veterans Health Administration" (in this section referred to as the "National Quality Management Officer").

(2) The National Quality Management Officer shall report directly to the Under Secretary for Health in the discharge of responsibilities and duties of the Officer under this section.

(3) The National Quality Management Officer shall be the official within the Veterans Health Administration who is principally responsible for the quality-assurance program referred to in paragraph (1). In carrying out that responsibility, the Officer shall be responsible for the following:

(A) Establishing and enforcing the requirements of the program referred to in paragraph (1).

(B) Developing an aggregate quality metric from existing data sources, such as the Inpatient Evaluation Center of the Department, the National Surgical Quality Improvement Program, and the External Peer Review Program of the Veterans Health Administration, that could be used to assess reliably the quality of care provided at individual Department medical centers and associated community based outpatient clinics.

(C) Ensuring that existing measures of quality, including measures from the Inpatient Evaluation Center, the National Surgical Quality Improvement Program, System-Wide Ongoing Assessment and Review reports of the Department, and Combined Assessment Program reviews of the Office of Inspector General of the Department, are monitored routinely and analyzed in a manner that ensures the timely detection of quality of care issues.

(D) Encouraging research and development in the area of quality metrics for the purposes of improving how the Department measures quality in individual facilities.

(E) Carrying out such other responsibilities and duties relating to quality management in the Veterans Health Administration as the Under Secretary for Health shall specify.


(4) The requirements under paragraph (3) shall include requirements regarding the following:

(A) A confidential system for the submittal of reports by Veterans Health Administration personnel regarding quality management at Department facilities.

(B) Mechanisms for the peer review of the actions of individuals appointed in the Veterans Health Administration in the position of physician.


(b) Quality Management Officers for VISNs.—(1) The Regional Director of each Veterans Integrated Services Network shall appoint an official of the Network to act as the quality management officer of the Network.

(2) The quality management officer for a Veterans Integrated Services Network shall report to the Regional Director of the Veterans Integrated Services Network, and to the National Quality Management Officer, regarding the discharge of the responsibilities and duties of the officer under this section.

(3) The quality management officer for a Veterans Integrated Services Network shall—

(A) direct the quality management office in the Network; and

(B) coordinate, monitor, and oversee the quality management programs and activities of the Administration medical facilities in the Network in order to ensure the thorough and uniform discharge of quality management requirements under such programs and activities throughout such facilities.


(c) Quality Management Officers for Medical Facilities.—(1) The director of each Veterans Health Administration medical facility shall appoint a quality management officer for that facility.

(2) The quality management officer for a facility shall report directly to the director of the facility, and to the quality management officer of the Veterans Integrated Services Network in which the facility is located, regarding the discharge of the responsibilities and duties of the quality management officer under this section.

(3) The quality management officer for a facility shall be responsible for designing, disseminating, and implementing quality management programs and activities for the facility that meet the requirements established by the National Quality Management Officer under subsection (a).

(d) Authorization of Appropriations.—(1) Except as provided in paragraph (2), there are authorized to be appropriated such sums as may be necessary to carry out this section.

(2) There is authorized to be appropriated to carry out the provisions of subparagraphs (B), (C), and (D) of subsection (a)(3), $25,000,000 for the two-year period of fiscal years beginning after the date of the enactment of this section.

(Added Pub. L. 111–163, title V, §505(a)(1), May 5, 2010, 124 Stat. 1158.)

References in Text

The date of the enactment of this section, referred to in subsec. (d)(2), is the date of enactment of Pub. L. 111–163, which was approved May 5, 2010.

§7312. Special medical advisory group

(a) The Secretary shall establish an advisory committee to be known as the special medical advisory group. The advisory group shall advise the Secretary, through the Under Secretary for Health, and the Under Secretary for Health directly, relative to the care and treatment of disabled veterans and other matters pertinent to the Administration.

(b) Members of the special medical advisory group shall be appointed by the Secretary upon the recommendation of the Under Secretary for Health. The special medical advisory group shall be composed of—

(1) members of the medical, dental, podiatric, optometric, and allied scientific professions;

(2) other individuals considered by the Under Secretary for Health to have experience pertinent to the mission of the Administration; and

(3) a disabled veteran.


(c) The special medical advisory group shall meet on a regular basis as prescribed by the Secretary. The number, terms of service, pay, and allowances of members of the advisory group shall be prescribed in accordance with existing law and regulations.

(d) Not later than February 1 of each year, the special medical advisory group shall submit to the Secretary and the Congress a report on the activities of the advisory group during the preceding fiscal year. No report shall be required under this subsection after December 31, 2004.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 215; amended Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 103–446, title XII, §1201(e)(20), Nov. 2, 1994, 108 Stat. 4686; Pub. L. 106–419, title IV, §403(c)(5), Nov. 1, 2000, 114 Stat. 1864.)

Amendments

2000—Subsec. (d). Pub. L. 106–419 inserted at end "No report shall be required under this subsection after December 31, 2004."

1994—Subsec. (d). Pub. L. 103–446 substituted "the activities of the advisory group" for "the advisory groups activities".

1992—Subsecs. (a), (b). Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director" wherever appearing.

§7313. Advisory committees: affiliated institutions

(a) In each case where the Secretary has a contract or agreement with any school, institution of higher learning, medical center, hospital, or other public or nonprofit agency, institution, or organization for the training or education of health personnel, the Secretary shall establish an advisory committee to advise the Secretary and the Under Secretary for Health with respect to policy matters arising in connection with, and the operation of, the program with respect to which it was appointed. Such a committee may be a dean's committee, a medical advisory committee, or the like.

(b) Any such advisory committee may be established on an institution-wide, multi-disciplinary basis or on a regional basis whenever establishment on such a basis is found to be feasible.

(c) Members of each such advisory committee shall be appointed by the Secretary and shall include personnel of the Department (including appropriate representation from the full-time staff) and of the entity with which the Secretary has entered into the contract or agreement. The number of members, and terms of members, of each advisory committee shall be prescribed by the Secretary.

(d) The Secretary shall require that the Chief of the Nursing Service (or the designee of the Chief) at each Department health-care facility be included in the membership of each policymaking committee at that facility. Such committees include: (1) committees relating to matters such as budget, education, position management, clinical executive issues, planning, and resource allocation, and (2) the dean's committee or other advisory committee established under subsection (a).

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 216; amended Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984.)

Amendments

1992—Subsec. (a). Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director".

§7314. Geriatric research, education, and clinical centers

(a) The Secretary, upon the recommendation of the Under Secretary for Health and pursuant to the provisions of this section, shall designate not more than 25 Department health-care facilities as the locations for centers of geriatric research, education, and clinical activities and (subject to the appropriation of sufficient funds for such purpose) shall establish and operate such centers at such locations in accordance with this section.

(b) In designating locations for centers under subsection (a), the Secretary, upon the recommendation of the Under Secretary for Health, shall—

(1) designate each Department health-care facility that as of August 26, 1980, was operating a geriatric research, education, and clinical center unless (on the recommendation of the Under Secretary for Health) the Secretary determines that such facility does not meet the requirements of subsection (c) or has not demonstrated effectiveness in carrying out the established purposes of such center or the purposes of title III of the Veterans' Administration Health-Care Amendments of 1980 (Public Law 96–330; 94 Stat. 1048) or the potential to carry out such purposes effectively in the reasonably foreseeable future; and

(2) assure appropriate geographic distribution of such facilities.


(c) The Secretary may not designate a health-care facility as a location for a center under subsection (a) unless the peer review panel established under subsection (d) has determined under that subsection that the proposal submitted by such facility as a location for a new center under subsection (a) is among those proposals which have met the highest competitive standards of scientific and clinical merit, and the Secretary (upon the recommendation of the Under Secretary for Health) determines that the facility has (or may reasonably be anticipated to develop) each of the following:

(1) An arrangement with an accredited medical school which provides education and training in geriatrics and with which such facility is affiliated under which residents receive education and training in geriatrics through regular rotation through such center and through nursing home, extended care, or domiciliary units of such facility so as to provide such residents with training in the diagnosis and treatment of chronic diseases of older individuals, including cardiopulmonary conditions, senile dementia, and neurological disorders.

(2) An arrangement under which nursing or allied health personnel receive training and education in geriatrics through regular rotation through nursing home, extended care, or domiciliary units of such facility.

(3) The ability to attract the participation of scientists who are capable of ingenuity and creativity in health-care research efforts.

(4) A policymaking advisory committee composed of appropriate health-care and research representatives of the facility and of the affiliated school or schools to advise the directors of such facility and such center on policy matters pertaining to the activities of such center during the period of the operation of such center.

(5) The capability to conduct effectively evaluations of the activities of such center.


(d)(1) In order to provide advice to assist the Secretary and the Under Secretary for Health in carrying out their responsibilities under this section, the Assistant Under Secretary for Health described in section 7306(b)(3) of this title shall establish a panel to assess the scientific and clinical merit of proposals that are submitted to the Secretary for the establishment of new centers under this section.

(2) The membership of the panel shall consist of experts in the fields of geriatric and gerontological research, education, and clinical care. Members of the panel shall serve as consultants to the Department for a period of no longer than six months.

(3) The panel shall review each proposal submitted to the panel by the Assistant Under Secretary and shall submit its views on the relative scientific and clinical merit of each such proposal to the Assistant Under Secretary.

(4) The panel shall not be subject to the Federal Advisory Committee Act.

(e) Before providing funds for the operation of any such center at a health-care facility other than a health-care facility designated under subsection (b)(1), the Secretary shall assure that the center at each facility designated under such subsection is receiving adequate funding to enable such center to function effectively in the areas of geriatric research, education, and clinical activities.

(f) There are authorized to be appropriated such sums as may be necessary for the support of the research and education activities of the centers established pursuant to subsection (a). The Under Secretary for Health shall allocate to such centers from other funds appropriated generally for the Department medical services account and medical and prosthetics research account, as appropriate, such amounts as the Under Secretary for Health determines appropriate.

(g) Activities of clinical and scientific investigation at each center established under subsection (a) shall be eligible to compete for the award of funding from funds appropriated for the Department medical and prosthetics research account and shall receive priority in the award of funding from such account insofar as funds are awarded to projects for research in geriatrics and gerontology.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 216; amended Pub. L. 102–83, §4(a)(3), (4), Aug. 6, 1991, 105 Stat. 404; Pub. L. 102–405, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1984; Pub. L. 102–585, title V, §521, Nov. 4, 1992, 106 Stat. 4958; Pub. L. 103–446, title XII, §§1201(c)(4), 1202(b)(2), Nov. 2, 1994, 108 Stat. 4683, 4689; Pub. L. 110–387, title IX, §901(a)(8), Oct. 10, 2008, 122 Stat. 4142.)

References in Text

The Veterans' Administration Health-Care Amendments of 1980, referred to in subsec. (b)(1), is Pub. L. 96–330, Aug. 26, 1980, 94 Stat. 1030. Title III of the Act amended former sections 4101 and 4103 of this title and enacted provisions set out as notes below and under former section 4101 of this title. For the purposes of title III, see section 301 of Pub. L. 96–330, set out below. For complete classification of this Act to the Code, see Short Title of 1980 Amendment note set out under section 101 of this title and Tables.

The Federal Advisory Committee Act, referred to in subsec. (d)(4), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to Title 5, Government Organization and Employees.

Amendments

2008—Subsec. (f). Pub. L. 110–387 substituted "medical services account" for "medical care account".

1994—Subsec. (b)(1). Pub. L. 103–446, §1202(b)(2), amended Pub. L. 102–83, §4(a)(3), (4), to make it inapplicable to this section. See 1991 Amendment note below.

Subsec. (d)(1). Pub. L. 103–446, §1201(c)(4)(A), substituted "the Secretary and the Under Secretary for Health in carrying out" for "the Chief Medical Director and the Secretary to carry out" and "the Assistant Under Secretary for Health described in section 7306(b)(3)" for "the Assistant Chief Medical Director described in section 7306(b)(3)".

Subsec. (d)(3). Pub. L. 103–446, §1201(c)(4)(B), substituted "Assistant Under Secretary" for "Assistant Chief Medical Director" in two places.

1992—Subsecs. (a), (b). Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director" wherever appearing.

Subsec. (c). Pub. L. 102–585, §521(1), inserted "the peer review panel established under subsection (d) has determined under that subsection that the proposal submitted by such facility as a location for a new center under subsection (a) is among those proposals which have met the highest competitive standards of scientific and clinical merit, and" after "unless" in introductory provisions.

Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director" in introductory provisions.

Subsec. (d). Pub. L. 102–585, §521(3), added subsec. (d). Former subsec. (d) redesignated (e).

Subsec. (e). Pub. L. 102–585, §521(2), redesignated subsec. (d) as (e). Former subsec. (e) redesignated (f).

Pub. L. 102–405 substituted "Under Secretary for Health" for "Chief Medical Director" in two places.

Subsecs. (f), (g). Pub. L. 102–585, §521(2), redesignated subsecs. (e) and (f) as (f) and (g), respectively.

1991—Subsec. (b)(1). Pub. L. 102–83, §4(a)(3), (4), which directed substitution of "Department" for "Veterans' Administration", was amended by Pub. L. 103–446, §1202(b)(2), to make it inapplicable to this section.

Effective Date of 1994 Amendment

Pub. L. 103–446, title XII, §1202(b), Nov. 2, 1994, 108 Stat. 4689, provided that the amendment made by that section is effective Aug. 6, 1991, and as if included in the enactment of Pub. L. 102–83.

Congressional Declaration of Purpose in Creating Centers of Geriatric Research, Education, and Clinical Activities

Pub. L. 96–330, title III, §301, Aug. 26, 1980, 94 Stat. 1048, provided that: "The purposes of this title [see Tables for classification] are (1) to improve and expand the capability of Veterans' Administration [now Department of Veterans Affairs] health-care facilities to respond with the most effective and appropriate services possible to the medical, psychological and social needs of the increasing number of older veterans, and (2) to advance scientific knowledge regarding such needs and the methods of meeting them by facilitating higher quality geriatric care for eligible older veterans through geriatric and gerontological research, the training of health personnel in the provision of health care to older individuals, and the development of improved models of clinical services for eligible older veterans."

§7315. Geriatrics and Gerontology Advisory Committee

(a) The Secretary shall establish in the Veterans Health Administration a Geriatrics and Gerontology Advisory Committee (hereinafter in this section referred to as the "Committee"). The membership of the Committee shall be appointed by the Secretary, upon the recommendation of the Under Secretary for Health, and shall include individuals who are not employees of the Federal Government and who have demonstrated interest and expertise in research, education, and clinical activities related to aging and at least one representative of a national veterans service organization. The Secretary, upon the recommendation of the Under Secretary for Health, shall invite representatives of other appropriate departments and agencies of the United States to participate in the activities of the Committee and shall provide the Committee with such staff and other support as may be necessary for the Committee to carry out effectively its functions under this section.

(b) The Committee shall—

(1) advise the Under Secretary for Health on all matters pertaining to geriatrics and gerontology;

(2) assess, through an evaluation process (including a site visit conducted not later than three years after the date of the establishment of each new center and not later than two years after the date of the last evaluation of those centers in operation on August 26, 1980), the ability of each center established under section 7314 of this title to achieve its established purposes and the purposes of title III of the Veterans' Administration Health-Care Amendments of 1980 (Public Law 96–330; 94 Stat. 1048);

(3) assess the capability of the Department to provide high quality geriatric services, extended services, and other health-care services to eligible older veterans, taking into consideration the likely demand for such services from such veterans;

(4) assess the current and projected needs of eligible older veterans for geriatric services, extended-care services, and other health-care services from the Department and its activities and plans designed to meet such needs; and

(5) perform such additional functions as the Secretary or Under Secretary for Health may direct.


(c)(1) The Committee shall submit to the Secretary, through the Under Secretary for Health, such reports as the Committee considers appropriate with respect to its findings and conclusions under subsection (b). Such reports shall include the following:

(A) Descriptions of the operations of the centers of geriatric research, education, and clinical activities established pursuant to section 7314 of this title.

(B) Assessments of the quality of the operations of such centers.

(C) An assessment of the extent to which the Department, through the operation of such centers and other health-care facilities and programs, is meeting the needs of eligible older veterans for geriatric services, extended-care services, and other health-care services.

(D) Assessments of and recommendations for correcting any deficiencies in the operations of such centers.

(E) Recommendations for such other geriatric services, extended-care services, and other health-care services as may be needed to meet the needs of older veterans.


(2) Whenever the Committee submits a report to the Secretary under paragraph (1), the Committee shall at the same time transmit a copy of the report in the same form to the appropriate committees of Congress. Not later than 90 days after receipt of a report under that paragraph, the Secretary shall submit to the appropriate committees of Congress a report containing any comments and recommendations of the Secretary with respect to the report of the Committee.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 217; amended Pub. L. 102–83, §4(a)(3), (4), Aug. 6, 1991, 105 Stat. 404; Pub. L. 102–405, title I, §102, title III, §302(c)(1), Oct. 9, 1992, 106 Stat. 1973, 1984; Pub. L. 103–446, title XII, §§1201(i)(9), 1202(b)(2), Nov. 2, 1994, 108 Stat. 4688, 4689; Pub. L. 107–330, title III, §308(g)(13), Dec. 6, 2002, 116 Stat. 2829.)

References in Text

The Veterans' Administration Health-Care Amendments of 1980, referred to in subsec. (b)(2), is Pub. L. 96–330, Aug. 26, 1980, 94 Stat. 1030. Title III of the Act amended former sections 4101 and 4103 of this title and enacted provisions set out as notes under former section 4101 of this title. For the purposes of title III, see section 301 of Pub. L. 96–330, set out as a note under section 7314 of this title. For complete classification of this Act to the Code, see Short Title of 1980 Amendment note set out under section 101 of this title and Tables.

Amendments

2002—Subsec. (a). Pub. L. 107–330 inserted "Veterans Health" before "Administration" in first sentence.

1994—Subsec. (b)(2). Pub. L. 103–446, §1201(i)(9), which directed substitution of "Veterans' Administration" for "Department", could not be executed because "Department" did not appear subsequent to execution of amendment by Pub. L. 103–446, §1202(b)(2). See below.

Pub. L. 103–446, §1202(b)(2), amended Pub. L. 102–83, §4(a)(3), (4), to make it inapplicable to this section. See 1991 Amendment note below.

1992—Subsecs. (a), (b)(1), (5), (c)(1). Pub. L. 102–405, §302(c)(1), substituted "Under Secretary for Health" for "Chief Medical Director" wherever appearing.

Subsec. (c)(2). Pub. L. 102–405, §102, amended par. (2) generally. Prior to amendment, par. (2) read as follows: "Not later than 90 days after receipt of a report submitted under paragraph (1), the Secretary shall transmit the report, together with the Secretary's comments and recommendations thereon, to the appropriate committees of the Congress."

1991—Subsec. (b)(2). Pub. L. 102–83, §4(a)(3), (4), which directed substitution of "Department" for "Veterans' Administration", was amended by Pub. L. 103–446, §1202(b)(2), to make it inapplicable to this section.

Effective Date of 1994 Amendment

Pub. L. 103–446, title XII, §1202(b), Nov. 2, 1994, 108 Stat. 4689, provided that the amendment made by that section is effective Aug. 6, 1991, and as if included in the enactment of Pub. L. 102–83.

Termination of Advisory Committees

Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2-year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided for by law. See section 14 of Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.

§7316. Malpractice and negligence suits: defense by United States

(a)(1) The remedy—

(A) against the United States provided by sections 1346(b) and 2672 of title 28, or

(B) through proceedings for compensation or other benefits from the United States as provided by any other law, where the availability of such benefits precludes a remedy under section 1346(b) or 2672 of title 28,


for damages for personal injury, including death, allegedly arising from malpractice or negligence of a health care employee of the Administration in furnishing health care or treatment while in the exercise of that employee's duties in or for the Administration shall be exclusive of any other civil action or proceeding by reason of the same subject matter against the health care employee (or employee's estate) whose act or omission gave rise to such claim.

(2) For purposes of paragraph (1), the term "health care employee of the Administration" means a physician, dentist, podiatrist, chiropractor, optometrist, nurse, physician assistant, expanded-function dental auxiliary, pharmacist, or paramedical (such as medical and dental technicians, nursing assistants, and therapists), or other supporting personnel.

(b) The Attorney General shall defend any civil action or proceeding brought in any court against any person referred to in subsection (a) (or such person's estate) for any such damage or injury. Any such person against whom such civil action or proceeding is brought shall deliver within such time after date of service or knowledge of service as determined by the Attorney General, all process served upon such person or an attested true copy thereof to such person's immediate superior or to whomever was designated by the Secretary to receive such papers and such person shall promptly furnish copies of the pleading and process therein to the United States attorney for the district embracing the place wherein the proceeding is brought, to the Attorney General, and to the Secretary.

(c) Upon a certification by the Attorney General that the defendant was acting in the scope of such person's employment in or for the Administration at the time of the incident out of which the suit arose, any such civil action or proceeding commenced in a State court shall be removed without bond at any time before trial by the Attorney General to the district court of the United States of the district and division embracing the place wherein it is pending and the proceeding deemed a tort action brought against the United States under the provisions of title 28 and all references thereto. After removal the United States shall have available all defenses to which it would have been entitled if the action had originally been commenced against the United States. Should a United States district court determine on a hearing on a motion to remand held before a trial on the merits that the employee whose act or omission gave rise to the suit was not acting within the scope of such person's office or employment, the case shall be remanded to the State court.

(d) The Attorney General may compromise or settle any claim asserted in such civil action or proceeding in the manner provided in section 2677 of title 28, and with the same effect.

(e) The Secretary may, to the extent the Secretary considers appropriate, hold harmless or provide liability insurance for any person to whom the immunity provisions of this section apply (as described in subsection (a)), for damage for personal injury or death, or for property damage, negligently caused by such person while furnishing medical care or treatment (including the conduct of clinical studies or investigations) in the exercise of such person's duties in or for the Administration, if such person is assigned to a foreign country, detailed to State or political division thereof, or is acting under any other circumstances which would preclude the remedies of an injured third person against the United States, provided by sections 1346(b) and 2672 of title 28, for such damage or injury.

(f) The exception provided in section 2680(h) of title 28 shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment (including medical care or treatment furnished in the course of a clinical study or investigation) while in the exercise of such person's duties in or for the Administration.

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 219; amended Pub. L. 108–170, title III, §302(e), Dec. 6, 2003, 117 Stat. 2058.)

Amendments

2003—Subsec. (a)(1). Pub. L. 108–170, §302(e)(1), substituted "health" for "medical" in three places in concluding provisions.

Subsec. (a)(2). Pub. L. 108–170, §302(e)(2), substituted "health" for "medical" the first place it appeared and inserted "chiropractor," after "podiatrist,".

Effective Date of 2003 Amendment

Pub. L. 108–170, title III, §302(h), Dec. 6, 2003, 117 Stat. 2058, provided that: "The amendments made by this section [amending this section and sections 7401 to 7404, 7409, and 7421 of this title] shall take effect at the end of the 180–day period beginning on the date of the enactment of this Act [Dec. 6, 2003]."

§7317. Hazardous research projects: indemnification of contractors

(a)(1) With the approval of the Secretary, any contract or research authorized by section 7303 of this title, the performance of which involves a risk of an unusually hazardous nature, may provide that the United States will indemnify the contractor as provided in paragraph (2), but only to the extent that the liability, loss, or damage concerned arises out of the direct performance of the contract and to the extent not covered by the financial protection required under subsection (e).

(2) Indemnity under paragraph (1) is indemnity against either or both of the following:

(A) Liability (including reasonable expenses of litigation or settlement) to third persons, except liability under State or Federal workers' injury compensation laws to employees of the contractor employed at the site of and in connection with the contract for which indemnification is granted, for death, bodily injury, or loss of or damage to property, from a risk that the contract defines as unusually hazardous.

(B) Loss of or damage to property of the contractor from a risk that the contract defines as unusually hazardous.


(b) A contract that provides for indemnification in accordance with subsection (a) must also provide for—

(1) notice to the United States of any claim or suit against the contractor for death, bodily injury, or loss of or damage to property; and

(2) control of or assistance in the defense by the United States, at its election, of any such suit or claim for which indemnification is provided hereunder.


(c) A payment may not be made under subsection (a) unless the Secretary certifies that the amount is just and reasonable.

(d) Upon approval by the Secretary, payments under subsection (a) may be made from—

(1) funds obligated for the performance of the contract concerned;

(2) funds available for research or development or both, and not otherwise obligated; or

(3) funds appropriated for those payments.


(e) Each contractor which is a party to an indemnification agreement under subsection (a) shall have and maintain financial protection of such type and in such amounts as the Secretary shall require to cover liability to third persons and loss of or damage to the contractor's property. The amount of financial protection required shall be the maximum amount of insurance available from private sources, except that the Secretary may establish a lesser amount, taking into consideration the cost and terms of private insurance. Such financial protection may include private insurance, private contractual indemnities, self-insurance, other proof of financial responsibility, or a combination of such measures.

(f) In administering the provisions of this section, the Secretary may use the facilities and services of private insurance organizations and may contract to pay a reasonable compensation therefor. Any contract made under the provisions of this section may be made without regard to the provisions of section 6101(b) to (d) of title 41, upon a showing by the Secretary that advertising is not reasonably practicable, and advance payments may be made under any such contract.

(g) The authority to indemnify contractors under this section does not create any rights in third persons which would not otherwise exist by law.

(h) Funds appropriated to carry out this section shall remain available until expended.

(i) In this section, the term "contractor" includes subcontractors of any tier under a contract containing an indemnification provision pursuant to subsection (a).

(Added Pub. L. 102–40, title IV, §401(a)(3), May 7, 1991, 105 Stat. 220; amended Pub. L. 111–350, §5(j)(4), Jan. 4, 2011, 124 Stat. 3850.)

Amendments

2011—Subsec. (f). Pub. L. 111–350 substituted "section 6101(b) to (d) of title 41" for "section 3709 of the Revised Statutes (41 U.S.C. 5)".

§7318. National Center for Preventive Health

(a)(1) The Under Secretary for Health shall establish and operate in the Veterans Health Administration a National Center for Preventive Health (hereinafter in this section referred to as the "Center"). The Center shall be located at a Department health care facility.

(2) The head of the Center is the Director of Preventive Health (hereinafter in this section referred to as the "Director").

(3) The Under Secretary for Health shall provide the Center with such staff and other support as may be necessary for the Center to carry out effectively its functions under this section.

(b) The purposes of the Center are the following:

(1) To provide a central office for monitoring and encouraging the activities of the Veterans Health Administration with respect to the provision, evaluation, and improvement of preventive health services.

(2) To promote the expansion and improvement of clinical, research, and educational activities of the Veterans Health Administration with respect to such services.


(c) In carrying out the purposes of the Center, the Director shall do the following:

(1) Develop and maintain current information on clinical activities of the Veterans Health Administration relating to preventive health services, including activities relating to—

(A) the on-going provision of regularly-furnished services; and

(B) patient education and screening programs carried out throughout the Administration.


(2) Develop and maintain detailed current information on research activities of the Veterans Health Administration relating to preventive health services.

(3) In order to encourage the effective provision of preventive health services by Veterans Health Administration personnel—

(A) ensure the dissemination to such personnel of any appropriate information on such services that is derived from research carried out by the Administration; and

(B) acquire and ensure the dissemination to such personnel of any appropriate information on research and clinical practices relating to such services that are carried out by researchers, clinicians, and educators who are not affiliated with the Administration.


(4) Facilitate the optimal use of the unique resources of the Department for cooperative research into health outcomes by initiating recommendations, and responding to requests of the Under Secretary for Health and the Director of the Medical and Prosthetic Research Service, for such research into preventive health services.

(5) Provide advisory services to personnel of Department health-care facilities with respect to the planning or furnishing of preventive health services by such personnel.


(d) There is authorized to be appropriated $1,500,000 to the Medical Care General and Special Fund of the Department of Veterans Affairs for each fiscal year for the purpose of permitting the National Center for Preventive Health to carry out research, clinical, educational, and administrative activities under this section. Such activities shall be considered to be part of the operation of health-care facilities of the Department without regard to the location at which such activities are carried out.

(e) In this section, the term "preventive health services" has the meaning given such term in section 1701(9) of this title.

(Added Pub. L. 102–585, title V, §511(a)(1), Nov. 4, 1992, 106 Stat. 4955; amended Pub. L. 103–446, title XII, §1201(c)(5), Nov. 2, 1994, 108 Stat. 4683.)

Amendments

1994—Subsecs. (a)(1), (3), (c)(4). Pub. L. 103–446 substituted "Under Secretary for Health" for "Chief Medical Director".

Selection of Facility at Which Center To Be Established

Pub. L. 102–585, title V, §511(c), Nov. 4, 1992, 106 Stat. 4956, as amended by Pub. L. 103–446, title XII, §1202(e)(2), Nov. 2, 1994, 108 Stat. 4689, provided that: "In order to establish the National Center for Preventive Health pursuant to section 7318 of title 38, United States Code, as added by subsection (a), the Under Secretary for Health of the Department of Veterans Affairs shall solicit proposals from Department health care facilities to establish the center. The Under Secretary for Health shall establish such center at the facility or facilities which the Under Secretary for Health determines, on the basis of a review and analysis of such proposals, would most effectively carry out the purposes set forth in subsection (b) of such section."

§7319. Mammography quality standards

(a) A mammogram may not be performed at a Department facility unless that facility is accredited for that purpose by a private nonprofit organization designated by the Secretary. An organization designated by the Secretary under this subsection shall meet the standards for accrediting bodies established under subsection (e) of section 354 of the Public Health Service Act (42 U.S.C. 263b).

(b) The Secretary, in consultation with the Secretary of Health and Human Services, shall prescribe quality assurance and quality control standards relating to the performance and interpretation of mammograms and use of mammogram equipment and facilities of the Department of Veterans Affairs consistent with the requirements of section 354(f)(1) of the Public Health Service Act. Such standards shall be no less stringent than the standards prescribed by the Secretary of Health and Human Services under section 354(f) of the Public Health Service Act.

(c)(1) The Secretary, to ensure compliance with the standards prescribed under subsection (b), shall provide for an annual inspection of the equipment and facilities used by and in Department health care facilities for the performance of mammograms. Such inspections shall be carried out in a manner consistent with the inspection of certified facilities by the Secretary of Health and Human Services under section 354(g) of the Public Health Service Act.

(2) The Secretary may not provide for an inspection under paragraph (1) to be performed by a State agency.

(d) The Secretary shall ensure that mammograms performed for the Department under contract with any non-Department facility or provider conform to the quality standards prescribed by the Secretary of Health and Human Services under section 354 of the Public Health Service Act.

(e) For the purposes of this section, the term "mammogram" has the meaning given such term in paragraph (5) of section 354(a) of the Public Health Service Act.

(Added Pub. L. 104–262, title III, §321(a)(1), Oct. 9, 1996, 110 Stat. 3195.)

References in Text

Section 354 of the Public Health Service Act, referred to in text, is section 354 of act July 1, 1944, ch. 373, which is classified to section 263b of Title 42, The Public Health and Welfare.

Deadline for Prescribing Standards

Pub. L. 104–262, title III, §321(b), Oct. 9, 1996, 110 Stat. 3195, provided that: "The Secretary of Veterans Affairs shall prescribe standards under subsection (b) of section 7319 of title 38, United States Code, as added by subsection (a), not later than the end of the 120-day period beginning on the date of the enactment of this Act [Oct. 9, 1996]."

Implementation Report

Pub. L. 104–262, title III, §321(c), Oct. 9, 1996, 110 Stat. 3195, provided that: "The Secretary shall submit to the Committees on Veterans' Affairs of the Senate and House of Representatives a report on the Secretary's implementation of section 7319 of title 38, United States Code, as added by subsection (a). The report shall be submitted not later than 120 days after the date of the enactment of this Act [Oct. 9, 1996]."

§7320. Centers for mental illness research, education, and clinical activities

(a) The purpose of this section is to provide for the improvement of the provision of health-care services and related counseling services to eligible veterans suffering from mental illness (especially mental illness related to service-related conditions) through—

(1) the conduct of research (including research on improving mental health service facilities of the Department and on improving the delivery of mental health services by the Department);

(2) the education and training of health care personnel of the Department; and

(3) the development of improved models and systems for the furnishing of mental health services by t