[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38 CFR 3.159]

[Page 194-197]
 
            TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
 
                CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
 
PART 3--ADJUDICATION--Table of Contents
 
     Subpart A--Pension, Compensation, and Dependency and Indemnity 
                              Compensation
 
Sec. 3.159  Department of Veterans Affairs assistance in developing claims.

    (a) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Competent medical evidence means evidence provided by a person 
who is qualified through education, training, or experience to offer 
medical diagnoses, statements, or opinions. Competent medical evidence 
may also mean statements conveying sound medical principles found in 
medical treatises. It would also include statements contained in 
authoritative writings such as medical and scientific articles and 
research reports or analyses.
    (2) Competent lay evidence means any evidence not requiring that the 
proponent have specialized education, training, or experience. Lay 
evidence is competent if it is provided by a person who has knowledge of 
facts or circumstances and conveys matters that can be observed and 
described by a lay person.
    (3) Substantially complete application means an application 
containing the claimant's name; his or her relationship to the veteran, 
if applicable; sufficient service information for VA to verify the 
claimed service, if applicable; the benefit claimed and any medical 
condition(s) on which it is based; the claimant's signature; and in 
claims for nonservice-connected disability or death pension and parents' 
dependency and indemnity compensation, a statement of income.
    (4) For purposes of paragraph (c)(4)(i) of this section, event means 
one or more incidents associated with places, types, and circumstances 
of service giving rise to disability.
    (5) Information means non-evidentiary facts, such as the claimant's 
Social Security number or address; the name and military unit of a 
person who served with the veteran; or the name and address of a medical 
care provider who may have evidence pertinent to the claim.  
    (b) VA's duty to notify claimants of necessary information or 
evidence. (1) When VA receives a complete or substantially complete 
application for benefits, it will notify the claimant of any information 
and medical or lay evidence that is necessary to substantiate the claim. 
VA will inform the claimant which information and evidence, if any, that 
the claimant is to provide to VA and which information and evidence, if 
any, that VA will attempt to obtain on behalf of the claimant. VA will 
also request that the claimant provide any evidence in the claimant's 
possession that pertains to the claim. If VA does not receive the 
necessary information and evidence requested from the claimant within 
one year of the date of the notice, VA cannot pay or provide any 
benefits based on that application. If the claimant has not responded to 
the request within 30 days, VA may decide the claim prior to the 
expiration of the one-year period based on all the information and 
evidence contained in the file, including information and evidence it 
has obtained on behalf of the claimant and any VA medical examinations 
or medical opinions. If VA does so, however, and the claimant 
subsequently provides the information and evidence within one year of 
the date of the request, VA must readjudicate the claim.


(Authority: 38 U.S.C. 5103)

    (2) If VA receives an incomplete application for benefits, it will 
notify the claimant of the information necessary to complete the 
application and will defer assistance until the claimant submits this 
information.


(Authority: 38 U.S.C. 5102(b), 5103A(3))

    (c) VA's duty to assist claimants in obtaining evidence. Upon 
receipt of a substantially complete application for benefits, VA will 
make reasonable efforts to help a claimant obtain evidence necessary to 
substantiate the claim. In addition, VA will give the assistance 
described in paragraphs (c)(1), (c)(2), and (c)(3) to an individual 
attempting to reopen a finally decided claim. VA will not pay any fees

[[Page 195]]

charged by a custodian to provide records requested.
    (1) Obtaining records not in the custody of a Federal department or 
agency. VA will make reasonable efforts to obtain relevant records not 
in the custody of a Federal department or agency, to include records 
from State or local governments, private medical care providers, current 
or former employers, and other non-Federal governmental sources. Such 
reasonable efforts will generally consist of an initial request for the 
records and, if the records are not received, at least one follow-up 
request. A follow-up request is not required if a response to the 
initial request indicates that the records sought do not exist or that a 
follow-up request for the records would be futile. If VA receives 
information showing that subsequent requests to this or another 
custodian could result in obtaining the records sought, then reasonable 
efforts will include an initial request and, if the records are not 
received, at least one follow-up request to the new source or an 
additional request to the original source.
    (i) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from non-Federal agency or department 
custodians. The claimant must provide enough information to identify and 
locate the existing records, including the person, company, agency, or 
other custodian holding the records; the approximate time frame covered 
by the records; and, in the case of medical treatment records, the 
condition for which treatment was provided.
    (ii) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the person, company, agency, or 
other custodian holding the records.


(Authority: 38 U.S.C. 5103A(b))

    (2) Obtaining records in the custody of a Federal department or 
agency. VA will make as many requests as are necessary to obtain 
relevant records from a Federal department or agency. These records 
include but are not limited to military records, including service 
medical records; medical and other records from VA medical facilities; 
records from non-VA facilities providing examination or treatment at VA 
expense; and records from other Federal agencies, such as the Social 
Security Administration. VA will end its efforts to obtain records from 
a Federal department or agency only if VA concludes that the records 
sought do not exist or that further efforts to obtain those records 
would be futile. Cases in which VA may conclude that no further efforts 
are required include those in which the Federal department or agency 
advises VA that the requested records do not exist or the custodian does 
not have them.
    (i) The claimant must cooperate fully with VA's reasonable efforts 
to obtain relevant records from Federal agency or department custodians. 
If requested by VA, the claimant must provide enough information to 
identify and locate the existing records, including the custodian or 
agency holding the records; the approximate time frame covered by the 
records; and, in the case of medical treatment records, the condition 
for which treatment was provided. In the case of records requested to 
corroborate a claimed stressful event in service, the claimant must 
provide information sufficient for the records custodian to conduct a 
search of the corroborative records.
    (ii) If necessary, the claimant must authorize the release of 
existing records in a form acceptable to the custodian or agency holding 
the records.


(Authority: 38 U.S.C. 5103A(b))

    (3) Obtaining records in compensation claims. In a claim for 
disability compensation, VA will make efforts to obtain the claimant's 
service medical records, if relevant to the claim; other relevant 
records pertaining to the claimant's active military, naval or air 
service that are held or maintained by a governmental entity; VA medical 
records or records of examination or treatment at non-VA facilities 
authorized by VA; and any other relevant records held by any Federal 
department or agency. The claimant must provide enough information to 
identify and locate the existing records including the custodian or 
agency holding the records; the approximate time frame covered by the 
records; and, in the case of medical treatment records,

[[Page 196]]

the condition for which treatment was provided.


(Authority: 38 U.S.C. 5103A(c))

    (4) Providing medical examinations or obtaining medical opinions. 
(i) In a claim for disability compensation, VA will provide a medical 
examination or obtain a medical opinion based upon a review of the 
evidence of record if VA determines it is necessary to decide the claim. 
A medical examination or medical opinion is necessary if the information 
and evidence of record does not contain sufficient competent medical 
evidence to decide the claim, but:
    (A) Contains competent lay or medical evidence of a current 
diagnosed disability or persistent or recurrent symptoms of disability;
    (B) Establishes that the veteran suffered an event, injury or 
disease in service, or has a disease or symptoms of a disease listed in 
Sec. 3.309, Sec. 3.313, Sec. 3.316, and Sec. 3.317 manifesting during an 
applicable presumptive period provided the claimant has the required 
service or triggering event to qualify for that presumption; and
    (C) Indicates that the claimed disability or symptoms may be 
associated with the established event, injury, or disease in service or 
with another service-connected disability.
    (ii) Paragraph (4)(i)(C) could be satisfied by competent evidence 
showing post-service treatment for a condition, or other possible 
association with military service.
    (iii) Paragraph (c)(4) applies to a claim to reopen a finally 
adjudicated claim only if new and material evidence is presented or 
secured.


(Authority: 38 U.S.C. 5103A(d))

    (d) Circumstances where VA will refrain from or discontinue 
providing assistance. VA will refrain from providing assistance in 
obtaining evidence for a claim if the substantially complete application 
for benefits indicates that there is no reasonable possibility that any 
assistance VA would provide to the claimant would substantiate the 
claim. VA will discontinue providing assistance in obtaining evidence 
for a claim if the evidence obtained indicates that there is no 
reasonable possibility that further assistance would substantiate the 
claim. Circumstances in which VA will refrain from or discontinue 
providing assistance in obtaining evidence include, but are not limited 
to:
    (1) The claimant's ineligibility for the benefit sought because of 
lack of qualifying service, lack of veteran status, or other lack of 
legal eligibility;
    (2) Claims that are inherently incredible or clearly lack merit; and
    (3) An application requesting a benefit to which the claimant is not 
entitled as a matter of law.


(Authority: 38 U.S.C. 5103A(a)(2))

    (e) Duty to notify claimant of inability to obtain records. (1) If 
VA makes reasonable efforts to obtain relevant non-Federal records but 
is unable to obtain them, or after continued efforts to obtain Federal 
records concludes that it is reasonably certain they do not exist or 
further efforts to obtain them would be futile, VA will provide the 
claimant with oral or written notice of that fact.  VA will make a record 
of any oral notice conveyed to the claimant. For non-Federal records 
requests, VA may provide the notice at the same time it makes its final 
attempt to obtain the relevant records. In either case, the notice must 
contain the following information:
    (i) The identity of the records VA was unable to obtain;
    (ii) An explanation of the efforts VA made to obtain the records;
    (iii) A description of any further action VA will take regarding the 
claim, including, but not limited to, notice that VA will decide the 
claim based on the evidence of record unless the claimant submits the 
records VA was unable to obtain; and
    (iv) A notice that the claimant is ultimately responsible for 
providing the evidence.
    (2) If VA becomes aware of the existence of relevant records before 
deciding the claim, VA will notify the claimant of the records and 
request that the claimant provide a release for the records. If the 
claimant does not provide any necessary release of the relevant records 
that VA is unable to obtain, VA will request that the claimant

[[Page 197]]

obtain the records and provide them to VA.


(Authority: 38 U.S.C. 5103A(b)(2))

    (f) For the purpose of the notice requirements in paragraphs (b) and 
(e) of this section, notice to the claimant means notice to the claimant 
or his or her fiduciary, if any, as well as to his or her 
representative, if any.


(Authority: 38 U.S.C. 5102(b), 5103(a))

[66 FR 45630, Aug. 29, 2001]

Editorial Note: For Federal Register citations affecting Sec. 3.1, see the List of Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.




PART I -- DEPT OF VA       CFR





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