Congressional Record Statement of Senator Daniel K. Akaka

Mr. President, as Chairman of the Senate Committee on Veterans' Affairs, I am introducing legislation today to protect the rights of appeal by claimants before the United States Court of Appeals for Veterans Claims when claimants erroneously file a document with the Department of Veterans Affairs and the document is not transmitted to the court in a timely fashion.

Under current law, section 7266 of title 38, United States Code, a veteran or other claimant who seeks to have a decision of the Board of Veterans' Appeals reviewed by the U.S. Court of Appeals for Veterans Claims must "file a notice of appeal with the court within 120 days after the date'' on which the board mails its decision to the veteran or other claimant.

This measure would respond to a problem identified in a recent decision of the court in the case of Posey v. Shinseki, decided April 23, 2010. In that case, a veteran sent a document purporting to be an appeal to the court to a VA regional office. The document was not forwarded to the court within the 120 day period. VA sought to have the appeal dismissed as untimely filed. However, the court found that the document qualified as a motion for reconsideration by the board.

Judge Lawrence B. Hagel authored a concurring opinion in which he expressed concern with the number of cases in which a claimant's right to appeal to the court had been thwarted because the Secretary had held correspondence from veterans seeking to appeal to the court until after the time for filing had expired. The Secretary would then argue that the claimant's appeal to the court was untimely and should be dismissed. Some of those cases resulted in dismissal of the appeal. Judge Hagel suggested that this problem could be addressed by legislation treating a document as a motion for reconsideration by the Board if it was received by the Secretary and not forwarded to the Court within the 120 day period.

I do not believe that VA has acted deliberately to impede any veteran's right to appeal to the court. However, the failure of VA to notify a veteran promptly of the filing error or to forward the document to the court should not be allowed to deprive a veteran of the right to have a case reviewed on appeal. The bill I am introducing would only apply in those cases where no appeal is filed with the court within the 120-day time period and the board or other VA agency has received during that same 120-day period a document expressing disagreement with the board decision.

I urge our colleagues to support this bill so that any veteran who attempts to appeal a decision of the Board in a timely fashion does not have his or her attempt thwarted by an error.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

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May 12, 2010