**Veterans Benefits Administration M21-1, Part III**

###### Department of Veterans Affairs Change 129

**Washington, DC 20420 October 15, 2004**

Veterans Benefits Manual M21-1, Part III, "Authorization and Clerical
Procedures," is changed as follows:

**Pages 1-i through 1-4:** Remove these pages and substitute pages 1-i
through 1-4 attached.

Chapter 1, paragraph 1.02, and paragraph 1.03 are retitled
"Consideration of Evidence," "Duty to Notify and Assist," and "Evidence
in Balance," respectively, to better reflect their content.

Subparagraph 1.01a is revised to show that, under 38 CFR 3.159, VA has
both a duty to notify and a duty to assist claimants who file
substantially complete claims.

Subparagraph 1.02a is reorganized into three subparagraphs, 1.02a
through 1.02c, to emphasize the elements of a substantially complete
claim, VA's duty to notify, and VA's duty to assist. Subparagraphs 1.02b
through 1.02e are renumbered accordingly.

Subparagraph 1.02b discusses the requirement for a claims file copy of
the VCAA notice and its enclosures.

In subparagraph 1.02c, a note is added to state that, in accordance with
VAOPGCPREC 5-2004, claims that cannot be substantiated do not require
duty-to-assist ("VCAA") notice or development.

Subparagraph 1.02e(6) is revised to indicate that the claimant should be
notified of the status of the claim whenever a follow-up request for
records is sent.

Subparagraph 1.02e(7) is revised to state that if requested Federal
records are not available, the notification letter should invite the
claimant to try to obtain the records him/herself.

In subparagraph 1.03b, the example is revised to clarify which evidence
is in balance, and the note is deleted because it is contrary to current
VA policy.

Other minor editorial changes are also made in these pages.

**Rescission:** Change 111.

> By Direction of the Under Secretary for Benefits
>
> Renée L. Szybala, Director
>
> Compensation and Pension Service

Distribution: RPC: 2068

FD: EX: ASO and AR (included in RPC 2068)

# 

# 

# 

# 

#  

October 15, 2004 M21-1, Part III

Change 129

CHAPTER 1. CONSIDERATION OF EVIDENCE

**CONTENTS**

PARAGRAPH PAGE

1.01 General 1-1

1.02 Duty to Notify and Assist 1-1

1.03 Evidence in Balance 1-4

1.04 Evidence Requested from Claimant 1-4

1.05 Evidence Requested from Other Sources 1-7

1.06 Acceptable Evidence (38 CFR 3.204) 1-7

1.07 Photocopies (38 CFR 3.204) 1-8

1.08 New and Material Evidence (38 CFR 3.156) 1-8

1.09 Certification of Statements to Establish Service Connection (38 CFR
3.200) 1-9

1.10 Affidavits or Certifications in Support of Claim 1-9

1.11 Procurement of Loyalty Clearances 1-10

12. Authentication of Foreign Documents (38 CFR 3.202) 1-11

1.13 Translation of Foreign Correspondence and Documents 1-12

1.14 Requests for Evidence from Countries on the Treasury Department
List (38 CFR 3.653) 1-12

**1-i**

**October 15, 2004 M21-1, Part III**

##  Change 129

**CHAPTER 1. CONSIDERATION OF EVIDENCE**

**1.01 GENERAL**

a\. Decisions on VA benefit eligibility and entitlement are based on the
evidence of record. Evidence consists of documents, records,
testimonials and information in other forms provided by, or obtained
for, a claimant. Under 38 CFR 3.159(b)(1), VA has a duty to notify a
claimant who files a substantially complete application of any medical
or lay evidence that is needed to substantiate the claim(s) made in the
application for benefits. In addition, VA has a duty to assist the
claimant in obtaining evidence to substantiate his or her claim(s)
before making a decision on the claim. We are charged with granting
every benefit supported by the law.

b\. Every effort should be made to request all evidence needed to decide
the claim based on the record available when the claim is filed.
Additional evidence will be developed as it is identified by the
claimant and/or his or her representative.

c\. While the claimant is ultimately responsible for providing evidence,
VA must make reasonable efforts to help the claimant obtain any evidence
that he or she adequately identifies which might enable the claimant to
substantiate the claim. The claimant has ultimate responsibility to
insure that non-Federal records are in the record at the time of the
decision. VA will make reasonable efforts to obtain non-Federal records
identified by the claimant if the claimant provides a release acceptable
to the record holder, and adequately identifies the records. Reasonable
efforts means an initial request and at least one follow up request, if
necessary, for records from non-Federal sources.

1.02 DUTY TO NOTIFY AND ASSIST. Pub. L. 106-475, the Veterans Claims
Assistance Act of 2000 (VCAA), and 38 CFR 3.159 define VBA's duty to
notify and assist claimants who file substantially complete claims for
VA benefits.

a\. **Application Substantially Complete.** Consider an application to
be substantially complete if the following information is provided:

-   Claimant's name,

-   Identifying service information,

-   Benefit claimed,

-   Disability(ies) for which the benefit is claimed (listing diagnosed
    condition(s) or chronic symptoms; references such as Agent Orange or
    Anthrax exposure are not \"disabilities\"),

-   Signature (except for those claims filed electronically in which we
    must develop for the signature), and

-   Income information (in pension and parents DIC claims).

b\. **Duty to Notify**

\(1\) If the application is not substantially complete, notify the
claimant and the claimant's representative, if any, of the information
he or she needs to provide in order to complete the application. Defer
assistance in developing evidence if the application is not
substantially complete.

\(2\) If the application is substantially complete, VA will notify the
claimant and the claimant's representative, if any, of:

-   Any information or evidence including any medical and lay evidence
    that is necessary to substantiate the claim;

-   What information or evidence that the claimant must submit to VA;
    and

-   What information or evidence the law requires VA to try to obtain on
    the claimant's behalf.

\(a\) The notice to the claimant should be in writing and include a
request that the claimant provide any evidence in the claimant's
possession that pertains to the claim and provide information needed to
identify records that VA will help obtain. Adequate identification of
records means the name and address of the custodian of the records, the
medical condition to which the records relate, and the approximate time
frame covered by these records. Request medical releases where
appropriate (e.g., a completed VA Form 21-4142, \"Authorization for
Release of Information\") to enable VA to request private medical
records on behalf of the claimant.

**1-1**

**M21-1, Part III October 15, 2004**

## Change 129

\(b\) The notice must also inform the claimant that he or she has one
year to submit any evidence and/or information to substantiate the
claim.

\(c\) The notice with all its enclosures (which are also called
attachments or templates) must be of record in the claims file to
document VA\'s compliance with its statutory Title 38 §5103(a) VCAA
notice responsibility. Offices are not required to include in the claims
file, copies of any blank forms issued with the notification letter.

c\. **Duty to Assist.** The statutory duty to assist includes:

-   Developing for all relevant evidence in the custody of a Federal
    department or agency, including VA medical records, service medical
    records, Social Security Administration records, or evidence from
    other Federal agencies;

-   Developing for relevant private records and lay or other evidence;

-   A duty to examine veterans or obtain a medical opinion *if* the
    examination or opinion is necessary to make a decision on a claim
    for compensation.

**NOTE**: Claims that cannot be substantiated because there is no legal
basis for the claim, or because undisputed facts render the claimant
ineligible for the claimed benefit, do not require duty-to-assist
("VCAA") notice or development (VAOPGCPREC 5-2004).

d\. **Requesting Non-Federal Records.** Under Pub. L. 106-475 and 38 CFR
3.159, VA must make a "reasonable effort" to assist a claimant in
obtaining the evidence necessary to substantiate a claim. "Reasonable
efforts" to obtain documentary evidence that is not under the
jurisdiction of a Federal department or agency will ordinarily require
an initial request for such evidence, and at least one follow-up request
if no response is received from the custodian of the records.

\(1\) Documents encompassed within the scope of this development include
medical records from all sources that the claimant adequately
identifies. Request that the claimant identify the type of record(s) to
be obtained, its custodian, the medical condition to which the records
relate, and the approximate time frame covered by these records.

> \(a\) These requirements apply to all types of non-Federal records.
>
> \(b\) If necessary, the claimant *must* complete a medical release.
>
> \(2\) When requesting records from non-Federal sources, allow 60 days
> for a response to the initial

request. Allow 30 days for a response to the follow-up request.

\(3\) At the same time a follow-up request is sent to a non-Federal
records custodian, notify the claimant by phone or letter advising him
or her that it is ultimately his or her responsibility to submit these
non-Federal records, but that we are making a follow-up request. The
notification should:

-   Identify all records that we were unable to obtain,

-   Briefly explain efforts made to obtain those records, and

-   Describe any further action VA will take with respect to the claim
    including processing the claim based on the evidence of record.

\(4\) After 60 days, continue processing the claim, ordering an
examination or a medical opinion, or taking any further needed action,
including rating the claim based on the evidence of record. In claims
for service connection, wait to schedule a VA examination until
requested Federal or non-Federal records establish that there was an
event, injury or disease in service that may be associated with the
claimed current condition.

> e\. **Records Under the Jurisdiction of a Federal Department or
> Agency.** Documents covered by

this provision of the statute include but are not limited to:

-   Service medical records and other relevant identified records
    pertaining to the claimant's active military, naval, or air service
    that are held by a governmental entity;

**1-2**

**October 15, 2004 M21-1, Part III**

**Change 129**

-   Records of relevant VA medical treatment or examination -- or
    treatment or examination at a non-VA facility if authorized by VA --
    provided the claimant adequately identifies the records; and

-   Any other relevant records held by any Federal department or agency
    that the claimant adequately identifies and authorizes us to obtain.

**Note**: Army National Guard records from the State are included in
this category.

> \(1\) In claims for disability compensation, the statute requires that
> we obtain all these records if relevant.
>
> \(2\) When records requested are in the custody of a Federal
> department or agency, the law obligates VA

to *continue* its attempts to obtain these records

-   Until we obtain them; or

-   Until it is reasonably certain that the records do not exist; or

-   Until it is reasonably certain that further efforts by VA to obtain
    them would be futile.

\(3\) A conclusion that further attempts would be futile should be
determined on a case by case basis on the type of information received
from the custodian of records.

\(4\) VA will consider that it has discharged its duty to assist if it
receives a statement from the Federal department or agency that the
records do not exist, that they don\'t have the records, that the
records are lost, or some similar expression of inability to provide the
requested record. This circumstance must be documented in the file
through either a letter from the purported record holder or report of
contact documenting the fact and the name, phone number and work site of
the responsible official with whom the regional office employee
discussed the matter.

\(5\) VA will also consider its duty to assist discharged if it
determines that there is no reasonable likelihood that further efforts
to obtain the records will be successful. This conclusion will be
documented in the file on a VA Form 119, \"Report of Contact,\" or memo
for the record which explains the basis of this finding.

\(6\) Frame the initial and follow-up requests for these records in a
complete and specific way so that the necessary information or evidence
is capable of identification. Allow 60 days for a response to the
initial request for records. Allow 30 days for follow-up requests.
Whenever a follow-up request is sent, inform the claimant of the status
of his or her claim, including VA efforts to obtain identified records.

> \(7\) If you receive an affirmative statement from a Federal records
> custodian that requested records do not

exist or are not in its possession, you do *not* have to make an
administrative decision that the service medical records or other
Federal records are not available. You must, however, provide the
claimant with a notice that:

-   Identifies the records we were unable to obtain;

-   Briefly explains the efforts made to obtain them;

-   Describes any further action we will take with respect to the claim;
    and

-   Invites the claimant to try to obtain them him/herself.

Give the claimant an additional 30 days to furnish information about
possible alternate sources of the evidence.

\(8\) If the 30-day follow-up period expires and no additional evidence
has been received, continue processing the claim based on the evidence
of record. Schedule an examination or request a medical opinion if it is
necessary to decide the claim. If Federal records cannot be obtained,
the rating decision and the letter of notification *must* clearly
indicate that the custodian of the identified Federal records stated
that the records could not be provided.

f\. **Both Federal and Non-Federal Relevant Records Cannot Be
Obtained.** If both Federal records

and non-Federal records have not been received after 60 days, notice
about the status of both requests may be included in a single letter,
but the letter must clearly differentiate between the actions we will
take concerning these two different categories of records.

**1-3**

**M21-1, Part III October 15, 2004**

**Change 129**

> g\. **Use of the Telephone.** All phone contacts must be documented as
> to time, subject, and substance

of the discussion on a signed VA Form 119 for the file. In addition, the
MAP-D record must be kept current for phone contacts.

> Notifications explaining what is needed to substantiate a claim must
> be in writing. However, you

may communicate that notification by telephone and send simultaneous
written notification for confirmation. You are encouraged to use the
telephone to:

-   seek the claimant's assistance in getting evidence or clarifying

> information; and,

-   take information from the claimant.

**1.03 EVIDENCE IN BALANCE**

a\. The reasonable doubt rule is found at 38 CFR 3.102. Every person
involved in the adjudication of compensation and pension claims must be
thoroughly familiar with this regulation.

b\. The benefit of the doubt belongs to the claimant. If there is a
balance of evidence supporting and against a factual issue, VA must make
a factual determination in favor of the claimant. In *Gilbert v
Derwinski*, No 89-53, the Court of Veterans Appeals (now the Court of
Appeals for Veterans Claims (CAVC)) likened the reasonable doubt rule to
a rule \"deeply embedded in sand lot baseball folklore that the \'tie
goes to the runner\'." If the ball clearly beats the runner, he is out
and the rule has no application; if the runner clearly beats the ball,
he is safe and again, the rule has no application; if, however the play
is close, then the runner is called safe by operation of the rule that
\'the tie goes to the runner\'." After obtaining all relevant evidence,
evaluate the evidence and determine if the evidence in favor of the
position held by the claimant is of greater weight than the evidence to
the contrary. If the evidence supports the position of the claimant, the
claim is allowed. If the evidence does not support the claimant, the
claim is disallowed. If the evidence is approximately balanced, resolve
doubt in favor of the claimant.

*Example:* A veteran filed for compensation based upon injuries acquired
as the result of an automobile accident while serving on active duty.
The police report indicates that the veteran\'s vehicle failed to
negotiate a curve and was speeding at the time of the accident. The
report also states that the road surface was slippery as the result of
rain earlier in the night, and that there were skid marks which indicate
that the veteran attempted to stop the vehicle prior to the accident.
The combined evidence that the accident was caused by hazardous road
conditions in contrast to being caused by the veteran's reckless driving
is in approximate balance and, therefore, the injuries that resulted
from the accident will be considered as having been incurred in the line
of duty.

**1.04 EVIDENCE REQUESTED FROM CLAIMANT**

a\. **Development of Evidence**. Evidence may be developed via BDN, PCGL
form letter, or original correspondence.

b\. **E-Mail, Fax and Telephone.** Use of e-mail, fax and telephone
development is strongly encouraged in appropriate cases.

> \(1\) Appropriate cases include, but are not limited to:

\(a\) receipt of medical evidence

\(b\) social security numbers and award/disallowance letters

> \(c\) addresses

**1-4**