38 U.S.C. § 5108 — Supplemental claims

Page 1040 TITLE 38—VETERANS’ BENEFITS § 5108 in paragraph (2), the Secretary of Veterans Affairs shall, upon the request of the claimant or on the Sec- retary’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 Af- fairs 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 Af- fairs 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 sub- section 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 lo- cate and readjudicate a claim described in this sub- section.’’ 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. Supplemental claims (a) IN GENERAL.—If new and relevant evidence is presented or secured with respect to a supple- mental 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 con- nection 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.) Editorial Notes AMENDMENTS 2017—Pub. L. 115–55 amended section generally. Prior to amendment, text read as follows: ‘‘If new and mate- rial 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.’’ 1991—Pub. L. 102–40 renumbered section 3008 of this title as this section. Pub. L. 102–83 substituted ‘‘Secretary’’ for ‘‘Adminis- trator’’. Statutory Notes and Related Subsidiaries 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 ad- dress appeals of decisions on legacy claims, with provi- sion 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, and brack- eted note thereunder. 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. CONSTRUCTION OF 2017 AMENDMENT Pub. L. 115–55, § 2(i)(2), Aug. 23, 2017, 131 Stat. 1109, provided that: ‘‘Section 5108 of such title [38 U.S.C. 5108], as amended by paragraph (1), shall not be con- strued to impose a higher evidentiary threshold than the new and material evidence standard that was in ef- fect pursuant to such section on the day before the date of the enactment of this Act [Aug. 23, 2017].’’ § 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 in- volved in a case being considered by the Depart- ment, 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 ar- rangements 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 in- dividual case shall be made by an appropriate of- ficial of such institution. (c) The Secretary shall furnish a claimant with notice that an advisory medical opinion has been requested under this section with re- spect 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 re- mand a claim to direct the agency of original ju- risdiction to obtain an advisory medical opinion from an independent medical expert under this section if the Board finds that the Veterans Ben- efits Administration should have exercised its discretion to obtain such an opinion. (2) The Board’s remand instructions shall in- clude the questions to be posed to the inde- pendent 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.) Editorial Notes AMENDMENTS 2017—Subsec. (d). Pub. L. 115–55 added subsec. (d).