Collapse to view only § 5104A. Binding nature of favorable findings
- § 5100. Definitions
- § 5101. Claims and forms
- § 5102. Application forms furnished upon request; notice to claimants of incomplete applications
- § 5103. Notice to claimants of required information and evidence
- § 5103A. Duty to assist claimants
- § 5104. Decisions and notices of decisions
- § 5104A. Binding nature of favorable findings
- § 5104B. Higher-level review by the agency of original jurisdiction
- § 5104C. Options following decision by agency of original jurisdiction
- § 5105. Joint applications for social security and dependency and indemnity compensation
- § 5106. Furnishing of information by other agencies
- § 5107. Claimant responsibility; benefit of the doubt
- § 5108. Supplemental claims
- § 5109. Independent medical opinions
- § 5109A. Revision of decisions on grounds of clear and unmistakable error
- § 5109B. Expedited treatment of returned and remanded claims
§ 5100. Definitions
In this chapter:
(1) The term “claimant” means any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.
(2) The term “notice” means a communication issued through means (including electronic means) prescribed by the Secretary.
(Added Pub. L. 117–168, title VIII, § 807(a)(1), Aug. 10, 2022, 136 Stat. 1805.)
§ 5101. Claims and forms
(a)
(1)
(A) Except as provided in subparagraph (B), a specific claim in the form prescribed by the Secretary (or jointly with the Commissioner of Social Security, as prescribed by section 5105 of this title) must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.
(B)
(i) The Secretary may pay benefits under chapters 13 and 15 and sections 2303, 2307, and 5121 of this title to a survivor of a veteran who has not filed a formal claim if the Secretary determines that the record contains sufficient evidence to establish the entitlement of the survivor to such benefits.
(ii) For purposes of this subparagraph and section 5110 of this title, the earlier of the following dates shall be treated as the date of the receipt of the survivor’s application for benefits described in clause (i):(I) The date on which the survivor of a veteran (or the representative of such a survivor) notifies the Secretary of the death of the veteran through a death certificate or other relevant evidence that establishes entitlement to survivors’ benefits identified in clause (i).(II) The head of any other department or agency of the Federal Government notifies the Secretary of the death of the veteran.
(iii) In notifying the Secretary of the death of a veteran as described in clause (ii)(I), the survivor (or the representative of such a survivor) may submit to the Secretary additional documents relating to such death without being required to file a formal claim.
(2) If an individual has not attained the age of 18 years, is mentally incompetent, or is physically unable to sign a form, a form filed under paragraph (1) for the individual may be signed by a court-appointed representative, a person who is responsible for the care of the individual, including a spouse or other relative, or an attorney in fact or agent authorized to act on behalf of the individual under a durable power of attorney. If the individual is in the care of an institution, the manager or principal officer of the institution may sign the form.
(b)
(1) A claim by a surviving spouse or child for compensation or dependency and indemnity compensation shall also be considered to be a claim for death pension and accrued benefits, and a claim by a surviving spouse or child for death pension shall be considered to be a claim for death compensation (or dependency and indemnity compensation) and accrued benefits.
(2) A claim by a parent for compensation or dependency and indemnity compensation shall also be considered to be a claim for accrued benefits.
(c)
(1) Any person who applies for, signs a form on behalf of an individual to apply for, or is in receipt of any compensation or pension benefit under laws administered by the Secretary shall, if requested by the Secretary, furnish the Secretary with the social security number of such person, or TIN in the case that the person is not an individual, and the social security number of any claimant, dependent, or beneficiary on whose behalf, or based upon whom, such person applies for or is in receipt of such benefit. A person is not required to furnish the Secretary with a social security number for any person to whom a social security number has not been assigned.
(2) The Secretary shall deny the application of or terminate the payment of compensation or pension to a person who fails to furnish the Secretary with a social security number or TIN required to be furnished pursuant to paragraph (1) of this subsection. The Secretary may thereafter reconsider the application or reinstate payment of compensation or pension, as the case may be, if such person furnishes the Secretary with such social security number or TIN.
(3) The costs of administering this subsection shall be paid for from amounts available to the Department of Veterans Affairs for the payment of compensation and pension.
(d)
(1) The Secretary shall publish in a central location on the internet website of the Department—
(A) the disability benefit questionnaire forms of the Department for the submittal of evidence from non-Department medical providers regarding a disability of a claimant, including any form or process that replaces any such disability benefit questionnaire form; and
(B) details about the process used by the Department for submittal of evidence described in subparagraph (A).
(2) Subject to section 6103 of this title, if the Secretary updates a form described in paragraph (1)(A), the Secretary shall—
(A) accept the previous version of the form filed by a claimant if—
(i) the claimant provided to the non-Department medical provider the previous version of the form before the date on which the updated version of the form was made available; and
(ii) the claimant files the previous version of the form during the one-year period following the date the form was completed by the non-Department medical provider;
(B) request from the claimant (or from a non-Department medical provider if the claimant has authorized the provider to share health information with the Secretary) any other information that the updated version of the form requires; and
(C) apply the laws and regulations required to adjudicate the claim as if the claimant filed the updated version of the form.
(3) The Secretary may waive any interagency approval process required to approve a modification to a disability benefit questionnaire form if such requirement only applies by reason of the forms being made public.
(e) In this section:
(1) The term “mentally incompetent” with respect to an individual means that the individual lacks the mental capacity—
(A) to provide substantially accurate information needed to complete a form; or
(B) to certify that the statements made on a form are true and complete.
(2) The term “TIN” has the meaning given the term in section 7701(a)(41) of the Internal Revenue Code of 1986.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1225, § 3001; Pub. L. 97–295, § 4(95)(A), Oct. 12, 1982, 96 Stat. 1313; Pub. L. 99–576, title VII, § 701(61), Oct. 28, 1986, 100 Stat. 3296; Pub. L. 101–508, title VIII, § 8053(a), Nov. 5, 1990, 104 Stat. 1388–352; renumbered § 5101 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)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 108–183, title VII, § 708(c)(2), Dec. 16, 2003, 117 Stat. 2674; Pub. L. 112–154, title V, § 502(a), Aug. 6, 2012, 126 Stat. 1190; Pub. L. 114–315, title I, § 101(a), Dec. 16, 2016, 130 Stat. 1538; Pub. L. 116–315, title II, §§ 2006(a), 2202(b)(1)(E), Jan. 5, 2021, 134 Stat. 4975, 4985.)
§ 5102. Application forms furnished upon request; notice to claimants of incomplete applications
(a)Furnishing Forms.—Upon request made by any person claiming or applying for, or expressing an intent to claim or apply for, a benefit under the laws administered by the Secretary, the Secretary shall furnish such person, free of all expense, all instructions and forms necessary to apply for that benefit.
(b)Incomplete Applications.—If a claimant’s application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant’s representative, if any, of the information necessary to complete the application.
(c)Time Limitation.—
(1) If information that a claimant and the claimant’s representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant’s application.
(2) This subsection shall not apply to any application or claim for Government life insurance benefits.
(Added Pub. L. 106–475, § 3(a), Nov. 9, 2000, 114 Stat. 2096; amended Pub. L. 108–183, title VII, § 701(a), Dec. 16, 2003, 117 Stat. 2670.)
§ 5103. Notice to claimants of required information and evidence
(a)Required Information and Evidence.—
(1) Except as provided in paragraph (3), the Secretary shall provide to the claimant and the claimant’s representative, if any, by the most effective means available, including electronic communication or notification in writing, notice of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant.
(2)
(A) The Secretary shall prescribe in regulations requirements relating to the contents of notice to be provided under this subsection.
(B) The regulations required by this paragraph—
(i) shall specify different contents for notice based on whether the claim concerned is an original claim or a supplemental claim;
(ii) shall provide that the contents for such notice be appropriate to the type of benefits or services sought under the claim;
(iii) shall specify for each type of claim for benefits the general information and evidence required to substantiate the basic elements of such type of claim; and
(iv) shall specify the time period limitations required pursuant to subsection (b).
(3) The requirement to provide notice under paragraph (1) shall not apply with respect to a supplemental claim that is filed within the timeframe set forth in subparagraphs (B) and (D) of section 5110(a)(2) of this title.
(b)Time Limitation.—
(1) In the case of information or evidence that the claimant is notified under subsection (a) is to be provided by the claimant, such information or evidence must be received by the Secretary within one year from the date such notice is sent.
(2) This subsection shall not apply to any application or claim for Government life insurance benefits.
(3) Nothing in paragraph (1) shall be construed to prohibit the Secretary from making a decision on a claim before the expiration of the period referred to in that subsection.
(4) Nothing in this section shall require the Secretary to provide notice for a subsequent claim that is filed while a previous claim is pending if the notice previously provided for such pending claim—
(A) provides sufficient notice of the information and evidence necessary to substantiate such subsequent claim; and
(B) was sent within one year of the date on which the subsequent claim was filed.
(5)
(A) This section shall not apply to any claim or issue where the Secretary may award the maximum benefit in accordance with this title based on the evidence of record.
(B) For purposes of this paragraph, the term “maximum benefit” means the highest evaluation assignable in accordance with the evidence of record, as long as such evidence is adequate for rating purposes and sufficient to grant the earliest possible effective date in accordance with section 5110 of this title.
(Added Pub. L. 106–475, § 3(a), Nov. 9, 2000, 114 Stat. 2096; amended Pub. L. 107–14, § 8(a)(12), June 5, 2001, 115 Stat. 35; Pub. L. 108–183, title VII, § 701(b), Dec. 16, 2003, 117 Stat. 2670; Pub. L. 110–389, title I, § 101(a), Oct. 10, 2008, 122 Stat. 4147; Pub. L. 112–154, title V, § 504(a), Aug. 6, 2012, 126 Stat. 1191; Pub. L. 115–55, § 2(b), Aug. 23, 2017, 131 Stat. 1105.)
§ 5103A. Duty to assist claimants
(a)Duty To Assist.—
(1) The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim for a benefit under a law administered by the Secretary.
(2) The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.
(3) The Secretary may defer providing assistance under this section pending the submission by the claimant of essential information missing from the claimant’s application.
(b)Assistance in Obtaining Private Records.—
(1) As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant private records that the claimant adequately identifies to the Secretary.
(2)
(A) Whenever the Secretary, after making such reasonable efforts, is unable to obtain all of the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records with respect to the claim. Such a notification shall—
(i) identify the records the Secretary is unable to obtain;
(ii) briefly explain the efforts that the Secretary made to obtain such records; and
(iii) explain that the Secretary will decide the claim based on the evidence of record but that this section does not prohibit the submission of records at a later date if such submission is otherwise allowed.
(B) The Secretary shall make not less than two requests to a custodian of a private record in order for an effort to obtain relevant private records to be treated as reasonable under this section, unless it is made evident by the first request that a second request would be futile in obtaining such records.
(3)
(A) This section shall not apply if the evidence of record allows for the Secretary to award the maximum benefit in accordance with this title based on the evidence of record.
(B) For purposes of this paragraph, the term “maximum benefit” means the highest evaluation assignable in accordance with the evidence of record, as long as such evidence is adequate for rating purposes and sufficient to grant the earliest possible effective date in accordance with section 5110 of this title.
(4) Under regulations prescribed by the Secretary, the Secretary—
(A) shall encourage claimants to submit relevant private medical records of the claimant to the Secretary if such submission does not burden the claimant; and
(B) in obtaining relevant private records under paragraph (1), may require the claimant to authorize the Secretary to obtain such records if such authorization is required to comply with Federal, State, or local law.
(c)Obtaining Records for Compensation Claims.—
(1) In the case of a claim for disability compensation, the assistance provided by the Secretary under this section shall include obtaining the following records if relevant to the claim:
(A) The claimant’s service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant’s active military, naval, air, or space service that are held or maintained by a governmental entity.
(B) Records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records.
(C) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain.
(2) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection, the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.
(d)Medical Examinations for Compensation Claims.—
(1) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.
(2) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)—
(A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and
(B) indicates that the disability or symptoms may be associated with the claimant’s active military, naval, air, or space service; but
(C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.
(e)Applicability of Duty to Assist.—
(1) The Secretary’s duty to assist under this section shall apply only to a claim, or supplemental claim, for a benefit under a law administered by the Secretary until the time that a claimant is provided notice of the agency of original jurisdiction’s decision with respect to such claim, or supplemental claim, under section 5104 of this title.
(2) The Secretary’s duty to assist under this section shall not apply to higher-level review by the agency of original jurisdiction, pursuant to section 5104B of this title, or to review on appeal by the Board of Veterans’ Appeals.
(f)Correction of Duty to Assist Errors.—
(1) If, during review of the agency of original jurisdiction decision under section 5104B of this title, the higher-level adjudicator identifies or learns of an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision being reviewed, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the higher-level adjudicator shall return the claim for correction of such error and readjudication.
(2)
(A) If the Board of Veterans’ Appeals, during review on appeal of an agency of original jurisdiction decision, identifies or learns of an error on the part of the agency of original jurisdiction to satisfy its duties under this section, and that error occurred prior to the agency of original jurisdiction decision on appeal, unless the Secretary may award the maximum benefit in accordance with this title based on the evidence of record, the Board shall remand the claim to the agency of original jurisdiction for correction of such error and readjudication.
(B) Remand for correction of such error may include directing the agency of original jurisdiction to obtain an advisory medical opinion under section 5109 of this title.
(3) Nothing in this subsection shall be construed to imply that the Secretary, during the consideration of a claim, does not have a duty to correct an error described in paragraph (1) or (2) that was erroneously not identified during higher-level review or during review on appeal with respect to the claim.
(g)Regulations.—The Secretary shall prescribe regulations to carry out this section.
(h)Rule With Respect to Disallowed Claims.—Nothing in this section shall be construed to require the Secretary to readjudicate a claim that has been disallowed except when new and relevant evidence is presented or secured, as described in section 5108 of this title.
(i)Other Assistance Not Precluded.—Nothing in this section shall be construed as precluding the Secretary from providing such other assistance under subsection (a) to a claimant in substantiating a claim as the Secretary considers appropriate.
(Added Pub. L. 106–475, § 3(a), Nov. 9, 2000, 114 Stat. 2097; amended Pub. L. 112–154, title V, § 505(a), (b), Aug. 6, 2012, 126 Stat. 1192; Pub. L. 115–55, § 2(c), (d), Aug. 23, 2017, 131 Stat. 1105; Pub. L. 116–283, div. A, title IX, § 926(a)(51), Jan. 1, 2021, 134 Stat. 3830.)
§ 5104. Decisions and notices of decisions
(a) In the case of a decision by the Secretary under section 511 of this title affecting the provision of benefits to a claimant, the Secretary shall, on a timely basis, provide to the claimant (and to the claimant’s representative) notice of such decision. The notice shall include an explanation of the procedure for obtaining review of the decision.
(b) Each notice provided under subsection (a) shall also include all of the following:
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered by the Secretary.
(3) A summary of the applicable laws and regulations.
(4) Identification of findings favorable to the claimant.
(5) In the case of a denial, identification of elements not satisfied leading to the denial.
(6) An explanation of how to obtain or access evidence used in making the decision.
(7) If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.
(c) The Secretary may provide notice under subsection (a) electronically if a claimant (or the claimant’s representative) elects to receive such notice electronically. A claimant (or the claimant’s representative) may revoke such an election at any time, by means prescribed by the Secretary.
(d) The Secretary shall annually—
(1) solicit recommendations from stakeholders on how to improve notice under this section; and
(2) publish such recommendations on a publicly available website of the Department.
(Added Pub. L. 101–237, title I, § 115(a)(1), Dec. 18, 1989, 103 Stat. 2065, § 3004; renumbered § 5104, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–54, § 14(d)(1), June 13, 1991, 105 Stat. 285; Pub. L. 103–446, title XII, § 1201(d)(15), Nov. 2, 1994, 108 Stat. 4684; Pub. L. 115–55, § 2(e), Aug. 23, 2017, 131 Stat. 1106; Pub. L. 117–168, title VIII, § 807(a)(2), Aug. 10, 2022, 136 Stat. 1806.)
§ 5104A. Binding nature of favorable findings
Any finding favorable to the claimant as described in section 5104(b)(4) of this title shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.
(Added Pub. L. 115–55, § 2(f)(1), Aug. 23, 2017, 131 Stat. 1107.)
§ 5104B. Higher-level review by the agency of original jurisdiction
(a)In General.—
(1) A claimant may request a review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction.
(2) The Secretary shall approve each request for review under paragraph (1).
(b)Time and Manner of Request.—
(1) A request for higher-level review by the agency of original jurisdiction shall be—
(A) in writing in such form as the Secretary may prescribe; and
(B) made within one year of the notice of the agency of original jurisdiction’s decision.
(2) Such request may specifically indicate whether such review is requested by a higher-level adjudicator at the same office within the agency of original jurisdiction or by an adjudicator at a different office of the agency of original jurisdiction. The Secretary shall not deny such request for review by an adjudicator at a different office of the agency of original jurisdiction without good cause.
(c)Decision.—Notice of a higher-level review decision under this section shall be provided to the claimant (and any representative of such claimant) and shall include a general statement—
(1) reflecting whether evidence was not considered pursuant to subsection (d); and
(2) noting the options available to the claimant to have the evidence described in paragraph (1), if any, considered by the Department.
(d)Evidentiary Record for Review.—The evidentiary record before the higher-level adjudicator shall be limited to the evidence of record in the agency of original jurisdiction decision being reviewed.
(e)De Novo Review.—A review of the decision of the agency of original jurisdiction by a higher-level adjudicator within the agency of original jurisdiction shall be de novo.
(Added Pub. L. 115–55, § 2(g)(1), Aug. 23, 2017, 131 Stat. 1107; amended Pub. L. 117–168, title VIII, § 807(a)(3), Aug. 10, 2022, 136 Stat. 1806.)
§ 5104C. Options following decision by agency of original jurisdiction
(a)Within One Year of Decision.—
(1) Subject to paragraph (2), in any case in which the Secretary renders a decision on a claim, the claimant may take any of the following actions on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision with respect to that claim:
(A) File a request for higher-level review under section 5104B of this title.
(B) File a supplemental claim under section 5108 of this title.
(C) File a notice of disagreement under section 7105 of this title.
(2)
(A) Once a claimant takes an action set forth in paragraph (1), the claimant may not take another action set forth in that paragraph with respect to the same claim or same issue contained within the claim until—
(i) the higher-level review, supplemental claim, or notice of disagreement is adjudicated; or
(ii) the request for higher-level review, supplemental claim, or notice of disagreement is withdrawn.
(B) Nothing in this subsection shall prohibit a claimant from taking any of the actions set forth in paragraph (1) in succession with respect to a claim or an issue contained within the claim.
(C) Nothing in this subsection shall prohibit a claimant from taking different actions set forth in paragraph (1) with respect to different claims or different issues contained within a claim.
(D) The Secretary may, as the Secretary considers appropriate, develop and implement a policy for claimants who—
(i) take an action under paragraph (1);
(ii) wish to withdraw the action before the higher-level review, supplemental claim, or notice of disagreement is adjudicated; and
(iii) in lieu of such action take a different action under paragraph (1).
(b)More Than One Year After Decision.—In any case in which the Secretary renders a decision on a claim and more than one year has passed since the date on which the agency of original jurisdiction issues a decision with respect to that claim, the claimant may file a supplemental claim under section 5108 of this title.
(Added Pub. L. 115–55, § 2(h)(1), Aug. 23, 2017, 131 Stat. 1108.)
§ 5105. Joint applications for social security and dependency and indemnity compensation
(a) The Secretary and the Commissioner of Social Security may jointly prescribe forms for use by survivors of members and former members of the uniformed services in filing application for benefits under chapter 13 of this title and title II of the Social Security Act (42 U.S.C. 401 et seq.). Such forms shall request information sufficient to constitute an application for benefits under both chapter 13 of this title and title II of the Social Security Act (42 U.S.C. 401 et seq.).
(b) When an application on any document indicating an intent to apply for survivor benefits is filed with either the Secretary or the Commissioner of Social Security, it shall be deemed to be an application for benefits under both chapter 13 of this title and title II of the Social Security Act (42 U.S.C. 401 et seq.). A copy of each such application filed with either the Secretary or the Commissioner, together with any additional information and supporting documents (or certifications thereof) which may have been received by the Secretary or the Commissioner with such application, and which may be needed by the other official in connection therewith, shall be transmitted by the Secretary or the Commissioner receiving the application to the other official. The preceding sentence shall not prevent the Secretary and the Commissioner of Social Security from requesting the applicant, or any other individual, to furnish such additional information as may be necessary for purposes of chapter 13 of this title and title II of the Social Security Act (42 U.S.C. 401 et seq.), respectively.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1226, § 3005; Pub. L. 97–295, § 4(95)(A), Oct. 12, 1982, 96 Stat. 1313; Pub. L. 98–160, title VII, § 702(16), Nov. 21, 1983, 97 Stat. 1010; renumbered § 5105, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(b)(9), Aug. 6, 1991, 105 Stat. 405; Pub. L. 103–296, title I, § 108(k), Aug. 15, 1994, 108 Stat. 1488; Pub. L. 112–154, title V, § 503, Aug. 6, 2012, 126 Stat. 1191.)
§ 5106. Furnishing of information by other agencies
The head of any Federal department or agency shall provide such information to the Secretary as the Secretary may request for purposes of determining eligibility for or amount of benefits, or verifying other information with respect thereto. The cost of providing information to the Secretary under this section shall be borne by the department or agency providing the information.
(Added Pub. L. 94–432, title IV, § 403(2), Sept. 30, 1976, 90 Stat. 1372, § 3006; amended Pub. L. 99–576, title VII, § 701(62), Oct. 28, 1986, 100 Stat. 3296; renumbered § 5106, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 106–475, § 5, Nov. 9, 2000, 114 Stat. 2099.)
§ 5107. Claimant responsibility; benefit of the doubt
(a)Claimant Responsibility.—Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.
(b)Benefit of the Doubt.—The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.
(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4106, § 3007; renumbered § 5107 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)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 106–398, § 1 [[div. A], title XVI, § 1611(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–359; Pub. L. 106–419, title I, § 104(c)(2), Nov. 1, 2000, 114 Stat. 1828; Pub. L. 106–475, § 4, Nov. 9, 2000, 114 Stat. 2098.)
§ 5108. Supplemental claims
(a)In General.—If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record.
(b)Duty to Assist.—
(1) If a claimant, in connection with a supplemental claim, reasonably identifies existing records, whether or not in the custody of a Federal department or agency, the Secretary shall assist the claimant in obtaining the records in accordance with section 5103A of this title.
(2) Assistance under paragraph (1) shall not be predicated upon a finding that new and relevant evidence has been presented or secured.
(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4107, § 3008; renumbered § 5108, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 115–55, § 2(i)(1), Aug. 23, 2017, 131 Stat. 1109.)
§ 5109. Independent medical opinions
(a) When, in the judgment of the Secretary, expert medical opinion, in addition to that available within the Department, is warranted by the medical complexity or controversy involved in a case being considered by the Department, the Secretary may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department.
(b) The Secretary shall make necessary arrangements with recognized medical schools, universities, or clinics to furnish such advisory medical opinions. Any such arrangement shall provide that the actual selection of the expert or experts to give the advisory opinion in an individual case shall be made by an appropriate official of such institution.
(c) The Secretary shall furnish a claimant with notice that an advisory medical opinion has been requested under this section with respect to the claimant’s case and shall furnish the claimant with a copy of such opinion when it is received by the Secretary.
(d)
(1) The Board of Veterans’ Appeals shall remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion from an independent medical expert under this section if the Board finds that the Veterans Benefits Administration should have exercised its discretion to obtain such an opinion.
(2) The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.
(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4107, § 3009; renumbered § 5109, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–83, § 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 115–55, § 2(j), Aug. 23, 2017, 131 Stat. 1109.)
§ 5109A. Revision of decisions on grounds of clear and unmistakable error
(a) A decision by the Secretary under this chapter 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 that constitutes a reversal or revision of a prior decision 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 Secretary on the Secretary’s own motion or upon request of the claimant.
(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.
(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.
(Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)
§ 5109B. Expedited treatment of returned and remanded claims
The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Veterans Benefits Administration of any claim that is returned by a higher-level adjudicator under section 5104B of this title or remanded by the Board of Veterans’ Appeals.
(Added Pub. L. 108–183, title VII, § 707(a)(1), Dec. 16, 2003, 117 Stat. 2672; amended Pub. L. 115–55, § 2(k)(1), Aug. 23, 2017, 131 Stat. 1109.)