38 U.S.C. § 5103A — Duty to assist claimants

Page 1034 TITLE 38—VETERANS’ BENEFITS § 5103A prescribed pursuant to subsection (a)(2) of such section as of the date of the enactment of this Act [Aug. 6, 2012].’’ APPLICABILITY OF REGULATIONS Pub. L. 110–389, title I, § 101(b), Oct. 10, 2008, 122 Stat. 4148, provided that: ‘‘The regulations required by para- graph (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 claim- ants 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 re- adjudicate 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 evi- dence 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 Ap- peals 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 readjudica- tion 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 iden- tify or readjudicate any claim that— ‘‘(A) is not submitted during the one-year period re- ferred 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 sec- tion 5102 of this title and enacting provisions set out as a note under section 5102 of this title], or the amend- ments made by this section, shall be construed to re- quire 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 sec- tion.’’ § 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 as- sistance to a claimant under this section if no reasonable possibility exists that such assist- ance would aid in substantiating the claim. (3) The Secretary may defer providing assist- ance under this section pending the submission by the claimant of essential information miss- ing 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 un- able to obtain; (ii) briefly explain the efforts that the Sec- retary 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 submis- sion of records at a later date if such submis- sion 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 re- quest that a second request would be futile in obtaining such records. (3)(A) This section shall not apply if the evi- dence 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 evalua- tion 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 Sec- retary, the Secretary— (A) shall encourage claimants to submit rel- evant 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 ob- taining the following records if relevant to the claim: (A) The claimant’s service medical records and, if the claimant has furnished the Sec- retary 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 infor- mation sufficient to locate those records. (C) Any other relevant records held by any Federal department or agency that the claim- ant adequately identifies and authorizes the Secretary to obtain. (2) Whenever the Secretary attempts to obtain records from a Federal department or agency Page 1035 TITLE 38—VETERANS’ BENEFITS § 5103A under this subsection, the efforts to obtain those records shall continue until the records are ob- tained unless it is reasonably certain that such records do not exist or that further efforts to ob- tain 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 pro- viding 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 per- sistent or recurrent symptoms of disability; and (B) indicates that the disability or symp- toms may be associated with the claimant’s active military, naval, air, or space service; but (C) does not contain sufficient medical evi- dence 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 juris- diction’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 juris- diction 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 sec- tion, 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 adjudi- cator shall return the claim for correction of such error and readjudication. (2)(A) If the Board of Veterans’ Appeals, dur- ing review on appeal of an agency of original ju- risdiction decision, identifies or learns of an error on the part of the agency of original juris- diction 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 evi- dence 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 jurisdic- tion to obtain an advisory medical opinion under section 5109 of this title. (3) Nothing in this subsection shall be con- strued 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 high- er-level review or during review on appeal with respect to the claim. (g) REGULATIONS.—The Secretary shall pre- scribe regulations to carry out this section. (h) RULE WITH RESPECT TO DISALLOWED CLAIMS.—Nothing in this section shall be con- strued to require the Secretary to readjudicate a claim that has been disallowed except when new and relevant evidence is presented or se- cured, as described in section 5108 of this title. (i) OTHER ASSISTANCE NOT PRECLUDED.—Noth- ing in this section shall be construed as pre- cluding the Secretary from providing such other assistance under subsection (a) to a claimant in substantiating a claim as the Secretary con- siders 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.) Editorial Notes AMENDMENTS 2021—Subsecs. (c)(1)(A), (d)(2)(B). Pub. L. 116–283 sub- stituted ‘‘air, or space service’’ for ‘‘or air service’’. 2017—Subsec. (e). Pub. L. 115–55, § 2(d)(2), added sub- sec. (e). Former subsec. (e) redesignated (g). Subsec. (f). Pub. L. 115–55, § 2(d)(2), added subsec. (f). Former subsec. (f) redesignated (h). Pub. L. 115–55, § 2(c), substituted ‘‘readjudicate’’ for ‘‘reopen’’ and ‘‘relevant’’ for ‘‘material’’. Subsecs. (g) to (i). Pub. L. 115–55, § 2(d)(1), redesig- nated subsecs. (e) to (g) as (g) to (i), respectively. 2012—Subsec. (b). Pub. L. 112–154, § 505(a), amended subsec. (b) generally. Prior to amendment, text read as follows: ‘‘(1) As part of the assistance provided under sub- section (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Sec- retary and authorizes the Secretary to obtain. ‘‘(2) Whenever the Secretary, after making such rea- sonable 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 re- spect 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 ob- tained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.’’ Subsec. (c). Pub. L. 112–154, § 505(b), amended subsec. (c) generally. Prior to amendment, text read as follows: ‘‘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 rel- evant to the claim: Page 1036 TITLE 38—VETERANS’ BENEFITS § 5104 ‘‘(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 ex- amination 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.’’ 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 OF 2012 AMENDMENT Pub. L. 112–154, title V, § 505(c), Aug. 6, 2012, 126 Stat. 1193, provided that: ‘‘(1) IN GENERAL.—The amendments made by sub- sections (a) and (b) [amending this section] shall take effect on the date that is 180 days after the date of the enactment of this Act [Aug. 6, 2012] and shall apply with respect to assistance obligations of the Secretary of Veterans Affairs on or after such date. ‘‘(2) CONSTRUCTION.—Nothing in this section [amend- ing this section] or the amendments made by this sec- tion shall be construed to require the Secretary to carry out assistance in accordance with requirements of section 5103A of title 38, United States Code, as in ef- fect on the day before the effective date established in paragraph (1) on or after such effective date.’’ § 5104. Decisions and notices of decisions (a) In the case of a decision by the Secretary under section 511 of this title affecting the pro- vision 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 expla- nation 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 cri- teria that must be satisfied to grant service connection or the next higher level of com- pensation. (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 stake- holders on how to improve notice under this section; and (2) publish such recommendations on a pub- licly 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.) Editorial Notes PRIOR PROVISIONS Prior section 5104 was renumbered section 8304 of this title. AMENDMENTS 2022—Subsecs. (c), (d). Pub. L. 117–168 added subsecs. (c) and (d). 2017—Subsec. (b). Pub. L. 115–55 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as fol- lows: ‘‘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.’’ 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 imme- diately 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)’’. 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 this section 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 cer- tification of certain capabilities of the Department of Veterans Affairs to carry out the new appeals system established by Pub. L. 115–55 and to address appeals of decisions on legacy claims, with provision for early ap- plicability 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 bracketed note thereunder. EFFECTIVE DATE Pub. L. 101–237, title I, § 115(b), Dec. 18, 1989, 103 Stat. 2066, 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 Vet- erans Affairs made after January 31, 1990.’’ RULE OF CONSTRUCTION Amendment by Pub. L. 117–168 not to be construed to apply subsec. (a) of this section to decisions of the