**§21.1032 VA has a duty to assist claimants in obtaining evidence.**

\(a\) *VA's duty to assist begins when VA receives a complete or
substantially complete application*.

\(1\) Except as provided in paragraph (d) of this section, upon receipt
of a complete or substantially complete application for educational
assistance under subpart C, D, G, H, K, or L of this part, VA will:

\(i\) Make reasonable efforts to help a claimant obtain evidence
necessary to substantiate the claim; and

\(ii\) Give the assistance described in paragraphs (b) and (c) of this
section to an individual attempting to reopen a finally decided claim.

\(2\) VA will not pay any fees a custodian of records may charge to
provide the records VA requests. (Authority: 38 U.S.C. 5103A)

\(b\) *Obtaining records not in the custody of a Federal department or
agency*.

\(1\) VA will make reasonable efforts to obtain relevant records not in
the custody of a Federal department or agency. These records include
relevant records from:

\(i\) State or local governments;

\(ii\) Private medical care providers;

\(iii\) Current or former employers; and

\(iv\) Other non-Federal governmental sources.

\(2\) The reasonable efforts described in paragraph (b)(1) of this
section will generally consist of an initial request for the records
and, if VA does not receive the records, at least one follow-up request.
The following are exceptions to this provision concerning the number of
requests that VA generally will make:

\(i\) VA will not make a follow-up request 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.

\(ii\) If VA receives information showing that subsequent requests to
the initial or another custodian could result in obtaining the records
sought, reasonable efforts will include an initial request and, if VA
does not receive the records, at least one follow-up request to the new
source or an additional request to the original source.

\(3\) 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:

\(i\) The person, company, agency, or other custodian holding the
records;

\(ii\) The approximate time frame covered by the records; and

\(iii\) In the case of medical treatment records, the condition for
which treatment was provided.

\(4\) 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)

\(c\) *Obtaining records in the custody of a Federal department or
agency*.

\(1\) 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:

> \(i\) Military records;
>
> \(ii\) Medical and other records from VA medical facilities;
>
> \(iii\) Records from non-VA facilities providing examination or
> treatment at VA expense; and
>
> \(iv\) Records from other Federal agencies.

\(2\) 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 cases in which the Federal department or agency advises VA that
the requested records do not exist or that the custodian of such records
does not have them.

\(3\) The claimant must cooperate fully with VA's reasonable efforts to
obtain relevant records from Federal department or agency custodians. At
VA's request, the claimant must provide enough information to identify
and locate the existing records, including:

> \(i\) The custodian or agency holding the records;
>
> \(ii\) The approximate time frame covered by the records; and
>
> \(iii\) In the case of medical treatment records, the condition for
> which treatment was provided.

\(4\) 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)

\(d\) *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 or 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 not credible 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)

\(e\) *Duty to notify claimant of inability to obtain records*.

\(1\) VA will notify the claimant either orally or in writing when VA:

\(i\) Makes reasonable efforts to obtain relevant non-Federal records,
but is unable to obtain them; or

\(ii\) After continued efforts to obtain Federal records, concludes that
it is reasonably certain they do not exist or that further efforts to
obtain them would be futile.

\(2\) For non-Federal records requests, VA may provide the notice to the
claimant at the same time it makes its final attempt to obtain the
relevant records.

\(3\) VA will make a record of any oral notice conveyed under paragraph
(e) of this section to the claimant.

\(4\) The notice to the claimant 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;

\(iii\) The fact described in paragraph (e)(1)(i) or (e)(1)(ii) of this
section;

\(iv\) 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

\(v\) A notice that the claimant is ultimately responsible for obtaining
the evidence.

\(5\) If VA becomes aware of the existence of relevant records before
deciding the claim, VA will notify the claimant of the existence of such
records and ask 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 ask that the claimant
obtain the records and provide them to VA.

\(6\) For the purpose of this section, if VA must notify the claimant,
VA will provide notice to:

> \(i\) The claimant;
>
> \(ii\) His or her fiduciary, if any; and
>
> \(iii\) His or her representative, if any. (Authority: 38 U.S.C.
> 5102(b), 5103(a), 5103A)

\[72 FR 16965, Apr. 5, 2007\]

**Supplement *Highlights* references**: 42(1), 69(1), 73(1).