**§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 (hereafter
in this paragraph referred to as the "notice"). In the notice, 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. The
information and evidence that the claimant is informed that the claimant
is to provide must be provided within one year of the date of the
notice. If the claimant has not responded to the notice 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 notice, 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))

\(3\) No duty to provide the notice described in paragraph (b)(1) of
this section arises:

\(i\) Upon receipt of a Notice of Disagreement; or

\(ii\) When, as a matter of law, entitlement to the benefit claimed
cannot be established. (Authority: 38 U.S.C. 5103(a), 5103A(a)(2))

\(c\) *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
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, 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 §3.309,
§3.313, §3.316, and §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 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))

\(g\) The authority recognized in subsection (g) of 38 U.S.C. 5103A is
reserved to the sole discretion of the Secretary and will be
implemented, when deemed appropriate by the Secretary, through the
promulgation of regulations. (Authority: 38 U.S.C. 5103A(g))

\[55 FR 52273, Dec. 21, 1990, as amended at 66 FR 45630, Aug. 29, 2001;
73 FR 23356, Apr. 30, 2008; 73 FR 24868, May 6, 2008\]

**Supplement *Highlights* references**: 47(1), 79(1).