SUBCHAPTER I—CLAIMS

Amendments

1988—Pub. L. 100–687, div. A, title I, §103(c)(4), Nov. 18, 1988, 102 Stat. 4108, substituted “CLAIMS” for “APPLICATIONS” in heading for subchapter I.

§5100. Definition of “claimant”

For purposes of this chapter, the term “claimant” means any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.

(Added Pub. L. 106–475, §2, Nov. 9, 2000, 114 Stat. 2096.)

§5101. Claims and forms

(a) 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)(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 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 and the social security number of any 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 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.

(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.

(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.)

Prior Provisions

Prior section 5101 was renumbered section 8301 of this title.

Amendments

2003—Subsec. (a). Pub. L. 108–183 substituted “Commissioner of Social Security” for “Secretary of Health and Human Services”.

1991—Pub. L. 102–40, §402(b)(1), renumbered section 3001 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(1), (2)(E), substituted “Secretary” for “Administrator” after “prescribed by the”.

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

Pub. L. 102–40, §402(d)(1), substituted “5105” for “3005”.

1990—Subsec. (c). Pub. L. 101–508 added subsec. (c).

1986—Subsec. (b)(1). Pub. L. 99–576 substituted “surviving spouse or” for “widow or” in two places.

1982—Subsec. (a). Pub. L. 97–295 substituted “Health and Human Services” for “Health, Education, and Welfare”.

Pilot Programs on Expedited Treatment of Fully Developed Claims and Provision of Checklists to Individuals Submitting Claims

Pub. L. 110–389, title II, §221, Oct. 10, 2008, 122 Stat. 4154, provided that:

“(a) Pilot Program on Expedited Treatment of Fully Developed Claims.—

“(1) In general.—The Secretary of Veterans Affairs shall carry out a pilot program to assess the feasibility and advisability of providing expeditious treatment of fully developed compensation or pension claims to ensure that such claims are adjudicated not later than 90 days after the date on which such claim is submitted as fully developed.

“(2) Duration of pilot program.—The pilot program under this subsection shall be carried out during the one-year period beginning on the date that is 60 days after the date of the enactment of this Act [Oct. 10, 2008].

“(3) Program locations.—The pilot program under this subsection shall be carried out at 10 regional offices of the Department of Veterans Affairs selected by the Secretary for purposes of such pilot program.

“(4) Fully developed claim defined.—For purposes of this subsection, the term ‘fully developed claim’ means a claim for a benefit under a law administered by the Secretary—

“(A) for which the claimant—

“(i) received assistance from a veterans service officer, a State or country [probably should be “county”] veterans service officer, an agent, or an attorney; or

“(ii) submits along with the claim an appropriate indication that the claimant does not intend to submit any additional information or evidence in support of the claim and does not require additional assistance with respect to the claim; and

“(B) for which the claimant—

“(i) submits a certification in writing that is signed and dated by the claimant stating that, as of such date, no additional information or evidence is available or needs to be submitted in order for the claim to be adjudicated; and

“(ii) for which the claimant's representative, if any, submits a certification in writing that is signed and dated by the representative stating that, as of such date, no additional information or evidence is available or needs to be submitted in order for the claim to be adjudicated.

“(b) Pilot Program on Provision of Checklists to Individuals Submitting Claims.—

“(1) In general.—The Secretary shall carry out a pilot program to assess the feasibility and advisability of providing to a claimant for whom the Secretary is required under section 5103(a) of title 38, United States Code, to provide notice of required information and evidence to such claimant and such claimant's representative, if any, a checklist that includes information or evidence required to be submitted by the claimant to substantiate the claim.

“(2) Duration of pilot program.—The pilot program under this subsection shall be carried out—

“(A) for original claims filed after the date of the enactment of this Act [Oct. 10, 2008], during the one-year period beginning on the date that is 60 days after the date of the enactment of this Act; and

“(B) for claims to reopen and for claims for increased ratings that were filed after the date of the enactment of this Act, during the three-year period beginning on the date that is 60 days after the date of the enactment of this Act.

“(3) Program locations.—The pilot program under this subsection shall be carried out at four regional offices of the Department selected by the Secretary for purposes of such pilot program.

“(4) Construction.—A checklist provided under the pilot program under this subsection—

“(A) shall be construed to be an addendum to a notice provided under section 5103(a) of title 38, United Sates Code; and

“(B) shall not be considered as part of such notice for purposes of reversal or remand of a decision of the Secretary.

“(c) Reports.—

“(1) First initial report.—Not later than 335 days after the date of the enactment of this Act [Oct. 10, 2008], the Secretary shall submit to Congress a report on the pilot program under subsection (a) and the pilot program under subsection (b) with respect to claims described in subsection (b)(2)(A).

“(2) Second interim report.—Not later than 1,065 days after the date of the enactment of this Act, the Secretary shall submit to Congress a report on the pilot program under subsection (b) with respect to claims described in subsection (b)(2)(B).

“(3) Elements of interim reports.—The reports required by paragraphs (1) and (2) shall include the following:

“(A) Data concerning the number and type of claims covered by the respective pilot program.

“(B) The findings of the Secretary with respect to the respective pilot program.

“(C) The recommendations of the Secretary on the feasibility and advisability of continuing or expanding the respective pilot program and any necessary modifications to such pilot program for continuation or expansion.

“(D) Such other information as the Secretary considers appropriate.

“(4) Final report.—Not later than 180 days after the completion of each pilot program carried out under this section, the Secretary shall submit to Congress a final report on the feasibility and advisability of continuing or expanding the respective pilot program.”

Study of Performance Measures for Claims Adjudications of the Veterans Benefits Administration

Pub. L. 110–389, title II, §226, Oct. 10, 2008, 122 Stat. 4159, provided that:

“(a) Study of Work Credit System and Work Management System Required.—The Secretary of Veterans Affairs shall conduct a study on the effectiveness of the current employee work credit system and work management system of the Veterans Benefits Administration of the Department of Veterans Affairs, which is used—

“(1) to measure and manage the work production of employees of the Veterans Benefits Administration who handle claims for compensation and pension benefits; and

“(2) to evaluate more effective means of improving performance.

“(b) Contents of Study.—In carrying out the study under subsection (a), the Secretary shall consider—

“(1) measures to improve the accountability, quality, and accuracy for processing claims for compensation and pension benefits under laws administered by the Secretary that are adjudicated by the Veterans Benefits Administration;

“(2) accountability for claims adjudication outcomes;

“(3) the quality of claims adjudicated;

“(4) a simplified process to adjudicate claims;

“(5) the maximum use of information technology applications;

“(6) rules-based applications and tools for processing and adjudicating claims efficiently and effectively;

“(7) methods of reducing the time required to obtain information from outside sources; and

“(8) the elements needed to implement—

“(A) performance standards and accountability measures, intended to ensure that—

“(i) claims for benefits under the laws administered by the Secretary are processed in an objective, accurate, consistent, and efficient manner; and

“(ii) final decisions with respect to such claims are consistent and issued within the target identified in the most recent annual Performance and Accountability report submitted by the Secretary to Congress for the most recent fiscal year;

“(B) guidelines and procedures for the identification and prompt processing of such claims that are ready to rate upon submittal;

“(C) guidelines and procedures for the identification and prompt processing of such claims submitted by severely injured and very severely injured veterans, as determined by the Secretary; and

“(D) requirements for assessments of claims processing at each regional office for the purpose of producing lessons learned and best practices.

“(c) Report to Congress.—Not later than October 31, 2009, the Secretary shall submit to Congress a report on—

“(1) the study conducted under subsection (a); and

“(2) the components required to implement the updated system for evaluating employees of the Veterans Benefits Administration required under subsection (d).

“(d) Evaluation of Certain Veterans Benefits Administration Employees Responsible for Processing Claims for Compensation and Pension Benefits.—Not later than 210 days after the date on which the Secretary submits to Congress the report required under subsection (c), the Secretary shall establish an updated system for evaluating the performance and accountability of employees of the Veterans Benefits Administration who are responsible for processing claims for compensation or pension benefits. Such system shall be based on the findings of the study conducted by the Secretary under subsection (a).”

Review and Enhancement of Use of Information Technology in Veterans Benefits Administration

Pub. L. 110–389, title II, §227, Oct. 10, 2008, 122 Stat. 4160, provided that:

“(a) Review and Comprehensive Plan.—Not later than one year after the date of the enactment of this Act [Oct. 10, 2008], the Secretary of Veterans Affairs shall—

“(1) conduct a review of the use of information technology in the Veterans Benefits Administration with respect to the processing of claims for compensation and pension benefits; and

“(2) develop a comprehensive plan for the use of such technology in processing such claims so as to reduce subjectivity, avoidable remands, and regional office variances in disability ratings for specific disabilities.

“(b) Information Technology.—The plan developed under subsection (a)(2) shall include the following:

“(1) The use of rules-based processing or information technology systems utilizing automated decision support software at all levels of processing such claims.

“(2) The enhancement of the use of information technology for all aspects of the claims process.

“(3) Development of a technological platform that—

“(A) allows for the use of information that members of the Armed Forces, veterans, and dependents have submitted electronically, including uploaded military records, medical evidence, and other appropriate documentation; and

“(B) to the extent practicable—

“(i) provides the capability to such members, veterans, and dependents to view applications for benefits submitted online; and

“(ii) complies with the provisions of subchapter III of chapter 35 of title 44, United States Code, section 552a of title 5, United States Code, and other relevant security policies and guidelines.

“(4) The use of electronic examination templates in conjunction with the schedule for rating disabilities under section 1155 of title 38, United States Code.

“(5) Such changes as may be required to the electronic health record system of the Department of Veterans Affairs and the Department of Defense to ensure that Veterans Benefits Administration claims examiners can access the available electronic medical information of the Department of Veterans Affairs and the Department of Defense.

“(6) The provision of bi-directional access to medical records and service records between the Department of Veterans Affairs and the Department of Defense.

“(7) The availability, on a secure Internet website of the Department of Veterans Affairs, of a portal that can be used by a claimant to check on the status of any claim submitted by that claimant and that provides information, if applicable, on—

“(A) whether a decision has been reached with respect to such a claim and notice of the decision; or

“(B) if no such decision has been reached, notice of—

“(i) whether the application submitted by the claimant is complete;

“(ii) whether the Secretary requires additional information or evidence to substantiate the claim;

“(iii) the estimated date on which a decision with respect to the claim is expected to be made; and

“(iv) the stage at which the claim is being processed as of the date on which such status is checked.

“(c) Review of Best Practices and Lessons Learned.—In carrying out this section, the Secretary shall review—

“(1) best practices and lessons learned within the Department of Veterans Affairs; and

“(2) the use of the technology known as ‘VistA’ by other Government entities and private sector organizations who employ information technology and automated decision support software.

“(d) Reduction of Claims Processing Time.—In carrying out this section, the Secretary shall ensure that a plan is developed that, not later than three years after implementation, includes information technology to the extent possible to reduce the processing time for each compensation and pension claim processed by the Veterans Benefits Administration. The performance for claims processing under this plan shall be adjusted for changes to the numbers of claims filed in a given period, the complexity of those claims, and any changes to the basic claims processing rules which occur during the assessment period.

“(e) Consultation.—In carrying out this section, the Secretary of Veterans Affairs shall consult with information technology designers at the Veterans Benefits Administration, the Veterans Health Administration, VistA managers, the Secretary of Defense, appropriate officials of other Government agencies, appropriate individuals in the private and public sectors, veterans service organizations, and other relevant service organizations.

“(f) Report to Congress.—Not later than April 1, 2010, the Secretary shall submit to Congress a report on the review and comprehensive plan required under this section.”

Temporary Authority for Performance of Medical Disabilities Examinations by Contract Physicians

Pub. L. 108–183, title VII, §704, Dec. 16, 2003, 117 Stat. 2672, as amended by Pub. L. 110–389, §105, Oct. 10, 2008, 122 Stat. 4149; Pub. L. 111–275, title VIII, §809, Oct. 13, 2010, 124 Stat. 2894, provided that:

“(a) Authority.—Using appropriated funds, other than funds available for compensation and pension, the Secretary of Veterans Affairs may provide for the conduct of examinations with respect to the medical disabilities of applicants for benefits under laws administered by the Secretary by persons other than Department of Veterans Affairs employees. The authority under this section is in addition to the authority provided in section 504(b) of the Veterans’ Benefits Improvement Act of 1996 (Public Law 104–275; 38 U.S.C. 5101 note).

“(b) Performance by Contract.—Examinations under the authority provided in subsection (a) shall be conducted pursuant to contracts entered into and administered by the Under Secretary for Benefits.

“(c) Expiration.—The authority in subsection (a) shall expire on December 31, 2012. No examination may be carried out under the authority provided in that subsection after that date.

“(d) Report.—Not later than four years after the date of the enactment of this Act [Dec. 16, 2003], the Secretary shall submit to Congress a report on the use of the authority provided in subsection (a). The Secretary shall include in the report an assessment of the effect of examinations under that authority on the cost, timeliness, and thoroughness of examinations with respect to the medical disabilities of applicants for benefits under laws administered by the Secretary.”

Pilot Program for Use of Contract Physicians for Disability Examinations

Pub. L. 104–275, title V, §504, Oct. 9, 1996, 110 Stat. 3341, provided that:

“(a) Authority.—The Secretary of Veterans Affairs, acting through the Under Secretary for Benefits, may conduct a pilot program under this section under which examinations with respect to medical disability of applicants for benefits under laws administered by the Secretary that are carried out through the Under Secretary for Benefits may be made by persons other than employees of the Department of Veterans Affairs. Any such examination shall be performed pursuant to contracts entered into by the Under Secretary for Benefits with those persons.

“(b) Limitation.—The Secretary may carry out the pilot program under this section through not more than 10 regional offices of the Department of Veterans Affairs.

“(c) Source of Funds.—Payments for contracts under the pilot program under this section shall be made from amounts available to the Secretary of Veterans Affairs for payment of compensation and pensions.

“(d) Report to Congress.—Not later than three years after the date of the enactment of this Act [Oct. 9, 1996], the Secretary shall submit to the Congress a report on the effect of the use of the authority provided by subsection (a) on the cost, timeliness, and thoroughness of medical disability examinations.”

Expedited Treatment of Remanded Claims

Pub. L. 103–446, title III, §302, Nov. 2, 1994, 108 Stat. 4658, as amended by Pub. L. 105–368, title V, §512(c), Nov. 11, 1998, 112 Stat. 3342, provided that Secretary of Veterans Affairs was to take necessary actions to provide for expeditious treatment, by the Board of Veterans’ Appeals and by regional offices of the Veterans Benefits Administration, of any claim that had been remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action, prior to repeal by Pub. L. 108–183, title VII, §707(c), Dec. 16, 2003, 117 Stat. 2673.

Veterans’ Claims Adjudication Commission

Pub. L. 103–446, title IV, Nov. 2, 1994, 108 Stat. 4659, as amended by Pub. L. 104–275, title V, §503(a), Oct. 9, 1996, 110 Stat. 3341, established Veterans’ Claims Adjudication Commission which was directed to conduct comprehensive evaluation and assessment of Department of Veterans Affairs system for disposition of claims for veterans benefits and of system for delivery of such benefits, together with any related issues determined to be relevant to study, for purpose of determining means of increasing efficiency of system, means of reducing number of claims under system for which final disposition is pending, and means of enhancing ability of Department of Veterans Affairs to achieve final determination regarding claims under system in prompt and appropriate manner, and further provided for membership and powers of Commission, personnel matters, definitions and funding, and for submission of preliminary report to Secretary of Veterans Affairs and Congress not later than one year after Nov. 2, 1994, submission of final report not later than Dec. 31, 1996, and for termination of Commission 90 days after submission of final report.

§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.)

Prior Provisions

A prior section 5102, Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1225, §3002; renumbered §5102, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, §4(a)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405, related to application forms, prior to repeal by Pub. L. 106–475, §3(a), Nov. 9, 2000, 114 Stat. 2096.

Another prior section 5102 was renumbered section 8302 of this title.

Amendments

2003—Subsec. (c). Pub. L. 108–183 added subsec. (c).

Effective Date of 2003 Amendment

Pub. L. 108–183, title VII, §701(c), Dec. 16, 2003, 117 Stat. 2670, provided that: “The amendments made by this section [amending this section and section 5103 of this title] shall take effect as if enacted on November 9, 2000, immediately after the enactment of the Veterans Claims Assistance Act of 2000 (Public Law 106–475; 114 Stat. 2096).”

§5103. Notice to claimants of required information and evidence

(a) Required Information and Evidence.—(1) Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, 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, a claim for reopening a prior decision on a claim, or a claim for an increase in benefits;

(ii) shall provide that the contents for such notice be appropriate to the type of benefits or services sought under the claim;

(iii) shall specify for each type of claim for benefits the general information and evidence required to substantiate the basic elements of such type of claim; and

(iv) shall specify the time period limitations required pursuant to subsection (b).

(b) 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.

(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.)

Prior Provisions

A prior section 5103, Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1225, §3003; Pub. L. 99–570, title XI, §11007(a)(1), Oct. 27, 1986, 100 Stat. 3207–170; renumbered §5103, Pub. L. 102–40, title IV, §402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, §4(a)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405, related to incomplete applications, prior to repeal by Pub. L. 106–475, §3(a), Nov. 9, 2000, 114 Stat. 2096.

Another prior section 5103 was renumbered section 8303 of this title.

Amendments

2008—Subsec. (a). Pub. L. 110–389 designated existing provisions as par. (1) and added par. (2).

2003—Subsec. (b)(1). Pub. L. 108–183, §701(b)(1), substituted “such information or evidence must be received by the Secretary within one year from the date such notice is sent” for “if such information or evidence is not received by the Secretary within one year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application”.

Subsec. (b)(3). Pub. L. 108–183, §701(b)(2), added par. (3).

2001—Subsec. (b)(1). Pub. L. 107–14 substituted “one year” for “1 year”.

Effective Date of 2003 Amendment

Amendment effective as if enacted Nov. 9, 2000, immediately after the enactment of the Veterans Claims Assistance Act of 2000, Pub. L. 106–475, see section 701(c) of Pub. L. 108–183, set out as a note under section 5102 of this title.

Applicability of Regulations

Pub. L. 110–389, title I, §101(b), Oct. 10, 2008, 122 Stat. 4148, provided that: “The regulations required by paragraph (2) of section 5103(a) of title 38, United States Code (as amended by subsection (a) of this section), shall apply with respect to notices provided to claimants on or after the effective date of such regulations.”

Readjudication of Certain Claims; Notice

Pub. L. 108–183, title VII, §701(d), (e), Dec. 16, 2003, 117 Stat. 2670, 2671, provided that:

“(d) Procedures for Readjudication of Certain Claims.—(1) The Secretary of Veterans Affairs shall readjudicate a claim of a qualified claimant if the request for such readjudication is received not later than the end of the one-year period that begins on the date of the enactment of this Act [Dec. 16, 2003].

“(2) For purposes of this subsection, a claimant is qualified within the meaning of paragraph (1) if the claimant—

“(A) received notice under section 5103(a) of title 38, United States Code, requesting information or evidence to substantiate a claim;

“(B) did not submit such information or evidence within a year after the date such notice was sent;

“(C) did not file a timely appeal to the Board of Veterans’ Appeals or the United States Court of Appeals for Veterans Claims; and

“(D) submits such information or evidence during the one-year period referred to in paragraph (1).

“(3) If the decision of the Secretary on a readjudication under this subsection is in favor of the qualified claimant, the award of the grant shall take effect as if the prior decision by the Secretary on the claim had not been made.

“(4) Nothing in this subsection shall be construed to establish a duty on the part of the Secretary to identify or readjudicate any claim that—

“(A) is not submitted during the one-year period referred to in paragraph (1); or

“(B) has been the subject of a timely appeal to the Board of Veterans’ Appeals or the United States Court of Appeals for Veterans Claims.

“(e) Construction on Providing Renotification.—Nothing in this section [amending this section and section 5102 of this title and enacting provisions set out as a note under section 5102 of this title], or the amendments made by this section, shall be construed to require the Secretary of Veterans Affairs—

“(1) to provide notice under section 5103(a) of such title with respect to a claim insofar as the Secretary has previously provided such notice; or

“(2) to provide for a special notice with respect to this section and the amendments made by this section.”

§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 Records.—(1) As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.

(2) 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—

(A) identify the records the Secretary is unable to obtain;

(B) briefly explain the efforts that the Secretary made to obtain those records; and

(C) describe any further action to be taken by the Secretary with respect to the claim.

(3) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection (c), 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.

(c) Obtaining Records for Compensation Claims.—In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) shall include obtaining the following records if relevant to the claim:

(1) 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, or air service that are held or maintained by a governmental entity.

(2) 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.

(3) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain.

(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, or air service; but

(C) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.

(e) Regulations.—The Secretary shall prescribe regulations to carry out this section.

(f) Rule With Respect to Disallowed Claims.—Nothing in this section shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title.

(g) 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.)

§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) In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary.

(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.)

Prior Provisions

Prior section 5104 was renumbered section 8304 of this title.

Amendments

1994—Subsec. (a). Pub. L. 103–446 substituted “section 511” for “section 211(a)”.

1991—Pub. L. 102–40 renumbered section 3004 of this title as this section.

Pub. L. 102–54 amended section as in effect immediately before enactment of Pub. L. 102–40 by striking out “(1)” after “(a)” and substituting “(b)” for “(2)”, “subsection (a)” for “paragraph (1) of this subsection”, “(1)” for “(A)”, and “(2)” for “(B)”.

Effective Date

Section 115(b) of Pub. L. 101–237 provided that: “Section 3004 [now 5104] of title 38, United States Code, as added by subsection (a), shall apply with respect to decisions by the Secretary of Veterans Affairs made after January 31, 1990.”

§5105. Joint applications for social security and dependency and indemnity compensation

(a) The Secretary and the Commissioner of Social Security shall 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.). Each such form 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 such a form 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.)

References in Text

The Social Security Act, referred to in text, is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Title II of the Social Security Act is classified generally to subchapter II (§401 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see section 1305 of Title 42 and Tables.

Prior Provisions

Prior section 5105 was renumbered section 8305 of this title.

Amendments

1994—Subsec. (a). Pub. L. 103–296, §108(k)(1), substituted “Commissioner of Social Security” for “Secretary of Health and Human Services”.

Subsec. (b). Pub. L. 103–296, §108(k), substituted “Commissioner of Social Security” for “Secretary of Health and Human Services” in two places and amended second sentence generally. Prior to amendment, second sentence read as follows: “A copy of each such application filed with either Secretary, together with any additional information and supporting documents (or certifications thereof) which may have been received by that Secretary with such application, and which may be needed by the other Secretary in connection therewith, shall be transmitted by the Secretary receiving the application to the other Secretary.”

1991—Pub. L. 102–40, §402(b)(1), renumbered section 3005 of this title as this section.

Subsec. (a). Pub. L. 102–83, §4(b)(9)(A)–(C), substituted “(a) The Secretary” for “The Administrator” at the beginning of text and substituted “401 et seq.).” for “401 et seq.); and” in second sentence.

Subsec. (b). Pub. L. 102–83, §4(b)(9)(D)–(J), substituted “(b) When an application on such a form is filed with either the Secretary” for “when an application on such form has been filed with either the Administrator”, “filed with either Secretary” for “filed with the Administrator”, “received by that Secretary” for “received by the Administrator”, “needed by the other Secretary” for “needed by the Secretary”, and “by the Secretary receiving the application to the other Secretary.” for “by the Administrator to the Secretary;”, struck out “and a copy of each such application filed with the Secretary, together with any additional information and supporting documents (or certifications thereof) which may have been received by the Secretary with such form, and which may be needed by the Administrator in connection therewith, shall be transmitted by the Secretary to the Administrator.” before “The preceding sentence”, and substituted “the Secretary and the Secretary of Health and Human Services” for “the Secretary and the Administrator”.

1983—Pub. L. 98–160 substituted “title II of the Social Security Act (42 U.S.C. 401 et seq.)” for “subchapter II of chapter 7 of title 42” wherever appearing.

1982—Pub. L. 97–295 substituted “Health and Human Services” for “Health, Education, and Welfare” wherever appearing.

Effective Date of 1994 Amendment

Amendment by Pub. L. 103–296 effective Mar. 31, 1995, see section 110(a) of Pub. L. 103–296, set out as a note under section 401 of Title 42, The Public Health and Welfare.

§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.)

Amendments

2000—Pub. L. 106–475 inserted at end “The cost of providing information to the Secretary under this section shall be borne by the department or agency providing the information.”

1991—Pub. L. 102–40 renumbered section 3006 of this title as this section.

Pub. L. 102–83 substituted “Secretary” for “Administrator” in two places.

1986—Pub. L. 99–576 substituted “the Administrator” for “he” before “may request”.

Effective Date

Section effective Sept. 30, 1976, see section 405(a) of Pub. L. 94–432, set out as an Effective Date of 1976 Amendment note under section 1521 of this title.

§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.)

Amendments

2000—Pub. L. 106–475 substituted “Claimant responsibility; benefit of the doubt” for “Burden of proof; benefit of the doubt” in section catchline and amended text generally. Prior to amendment, text read as follows:

“(a) Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. Such assistance shall include requesting information as described in section 5106 of this title.

“(b) When, after consideration of all evidence and material of record in a case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section.”

Pub. L. 106–398, §1 [[div. A], title XVI, §1611(a)], directed the general amendment of the section catchline and text. Pub. L. 106–419, §104(c)(2), provided that, as of the enactment of Pub. L. 106–419, the amendment made by Pub. L. 106–398, §1 [[div. A], title XVI, §1611(a)], was deemed for all purposes not to have taken effect and that Pub. L. 106–398, §1 [[div. A], title XVI, §1611(a)], ceased to be in effect.

1991—Pub. L. 102–40, §402(b)(1), renumbered section 3007 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. 102–83, §4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.

Pub. L. 102–40, §402(d)(1), substituted “5106” for “3006”.

Subsec. (b). Pub. L. 102–83, §4(b)(1), (2)(E), substituted “Secretary” for “Administrator” before “the burden”.

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”.

Effective Date of 2000 Amendment

Pub. L. 106–475, §7, Nov. 9, 2000, 114 Stat. 2099, provided that:

“(a) In General.—Except as specifically provided otherwise, the provisions of section 5107 of title 38, United States Code, as amended by section 4 of this Act, apply to any claim—

“(1) filed on or after the date of the enactment of this Act [Nov. 9, 2000]; or

“(2) filed before the date of the enactment of this Act and not final as of that date.

“(b) Rule for Claims the Denial of Which Became Final After the Court of Appeals for Veterans Claims Decision in the Morton Case.—(1) In the case of a claim for benefits denied or dismissed as described in paragraph (2), the Secretary of Veterans Affairs shall, upon the request of the claimant or on the Secretary's own motion, order the claim readjudicated under chapter 51 of such title, as amended by this Act, as if the denial or dismissal had not been made.

“(2) A denial or dismissal described in this paragraph is a denial or dismissal of a claim for a benefit under the laws administered by the Secretary of Veterans Affairs that—

“(A) became final during the period beginning on July 14, 1999, and ending on the date of the enactment of this Act; and

“(B) was issued by the Secretary of Veterans Affairs or a court because the claim was not well grounded (as that term was used in section 5107(a) of title 38, United States Code, as in effect during that period).

“(3) A claim may not be readjudicated under this subsection unless a request for readjudication is filed by the claimant, or a motion is made by the Secretary, not later than 2 years after the date of the enactment of this Act.

“(4) In the absence of a timely request of a claimant under paragraph (3), nothing in this Act [see Short Title of 2000 Amendments note set out under section 101 of this title] shall be construed as establishing a duty on the part of the Secretary of Veterans Affairs to locate and readjudicate a claim described in this subsection.”

Effective Date

Section effective Sept. 1, 1989, see section 401(a) of Pub. L. 100–687, set out as a note under section 7251 of this title.

§5108. Reopening disallowed claims

If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.

(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.)

Amendments

1991—Pub. L. 102–40 renumbered section 3008 of this title as this section.

Pub. L. 102–83 substituted “Secretary” for “Administrator”.

Effective Date

Section effective Sept. 1, 1989, see section 401(a) of Pub. L. 100–687, set out as a note under section 7251 of this title.

§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.

(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; Pub. L. 102–83, §4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405.)

Amendments

1991—Pub. L. 102–40 renumbered section 3009 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. 102–83, §4(a)(3), (4), substituted “Department” for “Veterans’ Administration” wherever appearing.

Subsecs. (b), (c). Pub. L. 102–83, §4(b)(1), (2)(E), substituted “Secretary” for “Administrator” wherever appearing.

Effective Date

Section effective Sept. 1, 1989, see section 401(a) of Pub. L. 100–687, set out as a note under section 7251 of this title.

§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.)

Effective Date

Section 1(c)(1) of Pub. L. 105–111 provided that: “Sections 5109A and 7111 of title 38, United States Code, as added by this section, apply to any determination made before, on, or after the date of the enactment of this Act [Nov. 21, 1997].”

§5109B. Expedited treatment of remanded claims

The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the appropriate regional office of the Veterans Benefits Administration of any claim that is remanded to a regional office of the Veterans Benefits Administration by the Board of Veterans’ Appeals.

(Added Pub. L. 108–183, title VII, §707(a)(1), Dec. 16, 2003, 117 Stat. 2672.)