38 U.S.C. § 5109 — Independent medical opinions

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). Page 1041 TITLE 38—VETERANS’ BENEFITS § 5110 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), sub- stituted ‘‘Secretary’’ for ‘‘Administrator’’ wherever ap- pearing. 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. § 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 estab- lishes the error, the prior decision shall be re- versed or revised. (b) For the purposes of authorizing benefits, a rating or other adjudicative decision that con- stitutes 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 un- mistakable error exists in a case may be insti- tuted 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 man- ner as any other claim. (Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 105–111, § 1(c)(1), Nov. 21, 1997, 111 Stat. 2272, 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 returned and re- manded claims The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Veterans Benefits Administra- tion of any claim that is returned by a higher- level adjudicator under section 5104B of this title or remanded by the Board of Veterans’ Ap- peals. (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.) Editorial Notes AMENDMENTS 2017—Pub. L. 115–55, § 2(k)(1), amended section gen- erally. Prior to amendment, text read as follows: ‘‘The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the appro- priate regional office of the Veterans Benefits Adminis- tration of any claim that is remanded to a regional of- fice of the Veterans Benefits Administration by the Board of Veterans’ Appeals.’’ 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. SUBCHAPTER II—EFFECTIVE DATES § 5110. Effective dates of awards (a)(1) Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indem- nity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (2) For purposes of determining the effective date of an award under this section, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession: (A) A request for higher-level review under section 5104B of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a deci- sion. (B) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the agency of original jurisdiction issues a decision. (C) A notice of disagreement on or before the date that is one year after the date on which the agency of original jurisdiction issues a de- cision. (D) A supplemental claim under section 5108 of this title on or before the date that is one year after the date on which the Board of Vet- erans’ Appeals issues a decision. (E) A supplemental claim under section 5108 of this title on or before the date that is one