§ 5109. Independent medical opinions

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1988

   Pub. L. 100–687 div. A title I § 103(a)(1) · 102 Stat. 4105

   Enacted · 38 U.S.C. § 5109

   Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4107, § 3009

   Source evidence

   Code source credit
   Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4107, § 3009

   Enacted provision · exact public law section
   (1) Chapter 51 is amended by adding at the end of subchapter I the following new sections: “§ 3007. Burden of proof; benefit of the doubt “(a) Except when otherwise provided by the Administrator in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Veterans’ Administration 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 Administrator shall assist such a claimant in developing the facts pertinent to the claim. Such assistance shall include requesting information as described in section 3006 of this title. “(b) When, after consideration of all evidence and material of record in a case before the Veterans’ Administration with respect to benefits under laws administered by the Veterans’ Administration, 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 Administrator the burden specified in subsection (a) of this section. “§ 3008. Reopening disallowed claims “If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Administrator shall reopen the claim and review the former disposition of the claim.”. “§ 3009. Independent medical opinions “(a) When, in the judgment of the Administrator, expert medical opinion, in addition to that available within the Veterans’ Administration, is warranted by the medical complexity or controversy involved in a case being considered by the Veterans’ Administration, the Administrator may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Veterans’ Administration. “(b) The Administrator 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 Administrator 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 Administrator.”.

2. 1991

   Department of Veterans Affairs Health-Care Personnel Act of 1991

   Pub. L. 102–40 title IV § 402(b)(1) · 105 Stat. 187

   Changed · 38 U.S.C. § 5109

   Pub. L. 102–40 renumbered section 3009 of this title as this section

   Source evidence

   Code amendment note
   Pub. L. 102–40 renumbered section 3009 of this title as this section.

   Enacted provision · exact public law section
   (1) Each section contained in any of chapters 51, 53, 55, 57, 59, 61, 71, 72, 76, 78 (as redesignated by subsection (a)), 81, 83, and 85 is redesignated so that the first two digits of the section number of that section are the same as the chapter number of the chapter containing that section.

3. 1991

   Pub. L. 102–83 § 4(b)(1) · 105 Stat. 378

   Substituted · 38 U.S.C. § 5109(a)

   Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places

   Source evidence

   Code amendment note
   Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places.

   Enacted provision · exact public law section
   (1) Title 38 is further amended by striking out “Administrator” and “Administrator’s” each place they appear (except as provided in paragraphs (2) and (9) and including where they appear in section headings and tables of sections) and inserting in lieu thereof “Secretary” and “Secretary’s”, respectively.

4. 1991

   Pub. L. 102–83 § 4(a)(3) · 105 Stat. 378

   Substituted · 38 U.S.C. § 5109(a)

   Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” wherever appearing

   Target inherited from the preceding amendment note.

   Source evidence

   Code amendment note
   Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” wherever appearing.

   Enacted provision · exact public law section
   (3) Such title is further amended by striking out “Veterans’ Administration” each place it appears (other than as amended under paragraphs (1) and (2) and as specified in paragraph (4)) and inserting in lieu thereof “Department”.

5. 1991

   Pub. L. 102–83 § 4(b)(1) · 105 Stat. 378

   Substituted · 38 U.S.C. § 5109(b); 38 U.S.C. § 5109(c)

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

   Source evidence

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

   Enacted provision · exact public law section
   (1) Title 38 is further amended by striking out “Administrator” and “Administrator’s” each place they appear (except as provided in paragraphs (2) and (9) and including where they appear in section headings and tables of sections) and inserting in lieu thereof “Secretary” and “Secretary’s”, respectively.

6. 2017

   Veterans Appeals Improvement and Modernization Act of 2017

   Pub. L. 115–55 § 2(j) · 131 Stat. 1105

   Added · 38 U.S.C. § 5109(d)

   Pub. L. 115–55 added subsec. (d)

   Source evidence

   Code amendment note
   Subsec. (d). Pub. L. 115–55 added subsec. (d).

   Enacted provision · exact public law section
   (j) Remand to Obtain Advisory Medical Opinion.— Section 5109 of such title is amended by adding at the end the following new subsection: “(d) (1) The Board of Veterans’ Appeals shall remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion from an independent medical expert under this section if the Board finds that the Veterans Benefits Administration should have exercised its discretion to obtain such an opinion. “(2) The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.” .

   Effective date note
   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 address appeals of decisions on legacy claims, with provision 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 bracketed note thereunder.

6 of 6 references resolved to an enrolled provision