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38 U.S.C. § 5108 (VETERANS’ BENEFITS)
§ 5108. Supplemental claims
(a) In General.—
If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record.
(b) Duty to Assist.—
(1) If a claimant, in connection with a supplemental claim, reasonably identifies existing records, whether or not in the custody of a Federal department or agency, the Secretary shall assist the claimant in obtaining the records in accordance with section 5103A of this title.
(2) Assistance under paragraph (1) shall not be predicated upon a finding that new and relevant evidence has been presented or secured.
(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4107, § 3008; renumbered § 5108, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 115–55, § 2(i)(1), Aug. 23, 2017, 131 Stat. 1109.)
heading: Editorial Notes
heading: Amendments
text: 2017—Pub. L. 115–55 amended section generally. Prior to amendment, text read as follows: “If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.”
1991—Pub. L. 102–40 renumbered section 3008 of this title as this section.
Pub. L. 102–83 substituted “Secretary” for “Administrator”.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2017 Amendment
text: 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.
heading: Effective Date
text: Section effective Sept. 1, 1989, see section 401(a) of Pub. L. 100–687, set out as a note under section 7251 of this title.
heading: Construction of 2017 Amendment
text: Pub. L. 115–55, § 2(i)(2), Aug. 23, 2017, 131 Stat. 1109, provided that: “Section 5108 of such title [38 U.S.C. 5108], as amended by paragraph (1), shall not be construed to impose a higher evidentiary threshold than the new and material evidence standard that was in effect pursuant to such section on the day before the date of the enactment of this Act [Aug. 23, 2017].”
38 U.S.C. § 5109A (VETERANS’ BENEFITS)
§ 5109A. Revision of decisions on grounds of clear and unmistakable error
(a) A decision by the Secretary under this chapter is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised.
(b) For the purposes of authorizing benefits, a rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.
(c) Review to determine whether clear and unmistakable error exists in a case may be instituted by the Secretary on the Secretary’s own motion or upon request of the claimant.
(d) A request for revision of a decision of the Secretary based on clear and unmistakable error may be made at any time after that decision is made.
(e) Such a request shall be submitted to the Secretary and shall be decided in the same manner as any other claim.
(Added Pub. L. 105–111, § 1(a)(1), Nov. 21, 1997, 111 Stat. 2271.)
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date
text: Pub. L. 105–111, § 1(c)(1), Nov. 21, 1997, 111 Stat. 2272, provided that: “Sections 5109A and 7111 of title 38, United States Code, as added by this section, apply to any determination made before, on, or after the date of the enactment of this Act [Nov. 21, 1997].”
38 U.S.C. § 5109B (VETERANS’ BENEFITS)
§ 5109B. Expedited treatment of returned and remanded claims
The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the Veterans Benefits Administration of any claim that is returned by a higher-level adjudicator under section 5104B of this title or remanded by the Board of Veterans’ Appeals.
(Added Pub. L. 108–183, title VII, § 707(a)(1), Dec. 16, 2003, 117 Stat. 2672; amended Pub. L. 115–55, § 2(k)(1), Aug. 23, 2017, 131 Stat. 1109.)
heading: Editorial Notes
heading: Amendments
text: 2017—Pub. L. 115–55, § 2(k)(1), amended section generally. Prior to amendment, text read as follows: “The Secretary shall take such actions as may be necessary to provide for the expeditious treatment by the appropriate regional office of the Veterans Benefits Administration of any claim that is remanded to a regional office of the Veterans Benefits Administration by the Board of Veterans’ Appeals.”
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 2017 Amendment
text: 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.
38 U.S.C. § 5121A (VETERANS’ BENEFITS)
§ 5121A. Substitution in case of death of claimant
(a) Substitution.—
(1) If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of the death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion.
(2) Any person seeking to be substituted for the claimant shall present evidence of the right to claim such status within such time as prescribed by the Secretary in regulations.
(3) Substitution under this subsection shall be in accordance with such regulations as the Secretary may prescribe.
(b) Limitation.—
Those who are eligible to make a claim under this section shall be determined in accordance with section 5121 of this title.
(Added Pub. L. 110–389, title II, § 212(a), Oct. 10, 2008, 122 Stat. 4151.)
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date
text: Pub. L. 110–389, title II, § 212(c), Oct. 10, 2008, 122 Stat. 4151, provided that: “Section 5121A of title 38, United States Code, as added by subsection (a), shall apply with respect to the claim of any claimant who dies on or after the date of the enactment of this Act [Oct. 10, 2008].”
38 U.S.C. § 5122 (VETERANS’ BENEFITS)
§ 5122. Cancellation of checks mailed to deceased payees
A check received by a payee in payment of accrued benefits shall, if the payee died on or after the last day of the period covered by the check, be returned to the issuing office and canceled, unless negotiated by the payee or the duly appointed representative of the payee’s estate. The amount represented by such check, or any amount recovered by reason of improper negotiation of any such check, shall be payable in the manner provided in section 5121 of this title, without regard to section 5121(c) of this title. Any amount not paid in the manner provided in section 5121 of this title shall be paid to the estate of the deceased payee unless the estate will escheat.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1229, § 3022; Pub. L. 99–576, title VII, § 701(67), Oct. 28, 1986, 100 Stat. 3296; renumbered § 5122 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 104–316, title II, § 202(t), Oct. 19, 1996, 110 Stat. 3845.)
heading: Editorial Notes
heading: Amendments
text: 1996—Pub. L. 104–316 in last sentence struck out “upon settlement by the General Accounting Office” after “shall be paid”.
1991—Pub. L. 102–40 renumbered section 3022 of this title as this section and substituted “5121” for “3021” in two places and “5121(c)” for “3021(c)”.
1986—Pub. L. 99–576 substituted “the payee’s” for “his” in first sentence.
38 U.S.C. § 5123 (VETERANS’ BENEFITS)
§ 5123. Rounding down of pension rates
The monthly or other periodic rate of pension payable to an individual under section 1521, 1541, or 1542 of this title or under section 306(a) of the Veterans’ and Survivors’ Pension Improvement Act of 1978 (Public Law 95–588), if not a multiple of $1, shall be rounded down to the nearest dollar.
(Added Pub. L. 97–253, title IV, § 403(a)(1), Sept. 8, 1982, 96 Stat. 802, § 3023; renumbered § 5123, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–83, § 5(c)(1), Aug. 6, 1991, 105 Stat. 406.)
heading: Editorial Notes
heading: References in Text
text: Section 306(a) of the Veterans’ and Survivors’ Pension Improvement Act of 1978 (Public Law 95–588), referred to in text, is section 306(a) of Pub. L. 95–588, title III, Nov. 4, 1978, 92 Stat. 2508, which is set out as a note under section 1521 of this title.
heading: Prior Provisions
text: Prior sections 5201 to 5228 were renumbered sections 8501 to 8528 of this title, respectively.
heading: Amendments
text: 1991—Pub. L. 102–40 renumbered section 3023 of this title as this section.
Pub. L. 102–83 substituted “1521, 1541, or 1542” for “521, 541, or 542”.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date
text: Section 403(b) of Pub. L. 97–253, as amended by Pub. L. 98–21, title I, § 111(e), Apr. 20, 1983, 97 Stat. 73; Pub. L. 98–369, div. B, title VI, § 2662(j), July 18, 1984, 98 Stat. 1160, provided that:
“(1) Except as provided in paragraph (2), the amendment made by subsection (a)(1) [enacting this section] shall apply with respect to amounts payable for periods beginning after May 31, 1983.
“(2) In the cases of individuals to whom pension is payable under sections 521, 541, and 542 [now 1521, 1541, and 1542] of title 38, United States Code, the amendment made by subsection (a)(1) shall take effect on the first day after May 31, 1983, that an increase is made in maximum annual rates of pension pursuant to section 3112 [now 5312] of title 38, United States Code.”
38 U.S.C. § 5305 (VETERANS’ BENEFITS)
§ 5305. Waiver of retired pay
Except as provided in section 1414 of title 10, any person who is receiving pay pursuant to any provision of law providing retired or retirement pay to persons in the Armed Forces, or as a commissioned officer of the National Oceanic and Atmospheric Administration or of the Public Health Service, and who would be eligible to receive pension or compensation under the laws administered by the Secretary if such person were not receiving such retired or retirement pay, shall be entitled to receive such pension or compensation upon the filing by such person with the department by which such retired or retirement pay is paid of a waiver of so much of such person’s retired or retirement pay as is equal in amount to such pension or compensation. To prevent duplication of payments, the department with which any such waiver is filed shall notify the Secretary of the receipt of such waiver, the amount waived, and the effective date of the reduction in retired or retirement pay.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1231, § 3105; Pub. L. 91–621, § 6(a)(3), Dec. 31, 1970, 84 Stat. 1864; Pub. L. 99–576, title VII, § 701(72), Oct. 28, 1986, 100 Stat. 3297; renumbered § 5305, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(a)(1), (2)(A)(viii), Aug. 6, 1991, 105 Stat. 403; Pub. L. 108–454, title III, § 308(b), Dec. 10, 2004, 118 Stat. 3614.)
heading: Editorial Notes
heading: Amendments
text: 2004—Pub. L. 108–454 substituted “Except as provided in section 1414 of title 10, any” for “Any” in first sentence.
1991—Pub. L. 102–40 renumbered section 3105 of this title as this section.
Pub. L. 102–83, § 4(a)(2)(A)(viii), substituted “Secretary” for “Veterans’ Administration”.
Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.
1986—Pub. L. 99–576 substituted “such person” for “he” and “such person’s” for “his”.
1970—Pub. L. 91–621 substituted “National Oceanic and Atmospheric Administration” for “Coast and Geodetic Survey”.
38 U.S.C. § 5306 (VETERANS’ BENEFITS)
§ 5306. Renouncement of right to benefits
(a) Any person entitled to pension, compensation, or dependency and indemnity compensation under any of the laws administered by the Secretary may renounce the right thereto. The application renouncing the right shall be in writing over the person’s signature. Upon the filing of such an application, payment of such benefits and the right thereto shall be terminated, and such person shall be denied any and all rights thereto from such filing.
(b) Renouncement of rights shall not preclude any person from filing a new application for pension, compensation, or dependency and indemnity compensation at a later date, but such new application shall be treated as an original application, and no payments shall be made for any period before the date such new application is filed.
(c) Notwithstanding subsection (b), if a new application for pension under chapter 15 of this title or for dependency and indemnity compensation for parents under section 1315 of this title is filed within one year after renouncement of that benefit, such application shall not be treated as an original application and benefits will be payable as if the renouncement had not occurred.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1231, § 3106; Pub. L. 99–576, title VII, § 701(73), Oct. 28, 1986, 100 Stat. 3297; renumbered § 5306, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(a)(1), Aug. 6, 1991, 105 Stat. 403; Pub. L. 103–446, title V, § 503, Nov. 2, 1994, 108 Stat. 4663.)
heading: Editorial Notes
heading: Amendments
text: 1994—Subsec. (c). Pub. L. 103–446 added subsec. (c).
1991—Pub. L. 102–40 renumbered section 3106 of this title as this section.
Subsec. (a). Pub. L. 102–83 substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.
1986—Subsec. (a). Pub. L. 99–576 substituted “the” for “his” before “right” in first sentence.
38 U.S.C. § 5307 (VETERANS’ BENEFITS)
§ 5307. Apportionment of benefits
(a) All or any part of the compensation, pension, or emergency officers’ retirement pay payable on account of any veteran may—
(1) if the veteran is being furnished hospital treatment, institutional, or domiciliary care by the United States, or any political subdivision thereof, be apportioned on behalf of the veteran’s spouse, children, or dependent parents; and
(2) if the veteran is not living with the veteran’s spouse, or if the veteran’s children are not in the custody of the veteran, be apportioned as may be prescribed by the Secretary.
(b) Where any of the children of a deceased veteran are not in the custody of the veteran’s surviving spouse, the pension, compensation, or dependency and indemnity compensation otherwise payable to the surviving spouse may be apportioned as prescribed by the Secretary.
(c) If a veteran is not living with the veteran’s spouse, or if any of the veteran’s children are not in the custody of the veteran, any subsistence allowance payable to the veteran under chapter 31 of this title or that portion of the educational assistance allowance payable on account of dependents under chapter 34 of this title may be apportioned as may be prescribed by the Secretary.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1231, § 3107; Pub. L. 92–540, title V, § 505, Oct. 24, 1972, 86 Stat. 1099; Pub. L. 98–160, title VII, § 703(2), Nov. 21, 1983, 97 Stat. 1010; renumbered § 5307, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405.)
heading: Editorial Notes
heading: Amendments
text: 1991—Pub. L. 102–40 renumbered section 3107 of this title as this section.
Subsecs. (a)(2), (b), (c). Pub. L. 102–83 substituted “Secretary” for “Administrator”.
1983—Subsec. (a)(1). Pub. L. 98–160, § 703(2)(A), substituted “the veteran’s spouse” for “his wife”.
Subsec. (a)(2). Pub. L. 98–160, § 703(2)(A)–(C), substituted “the veteran’s spouse” for “his wife”, “the veteran’s children” for “his children”, and “the custody of the veteran” for “his custody”.
Subsec. (b). Pub. L. 98–160, § 703(2)(D), substituted “surviving spouse” for “widow” in two places.
Subsec. (c). Pub. L. 98–160, § 703(2)(A)–(C), (E), substituted “the veteran’s spouse” for “his wife”, “the veteran’s children” for “his children”, “the custody of the veteran” for “his custody”, and “payable to the veteran” for “payable to him”.
1972—Subsec. (c). Pub. L. 92–540 inserted provisions relating to that portion of the educational assistance allowance payable on account of dependents under chapter 34 of this title.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of 1972 Amendment
text: Amendment by Pub. L. 92–540 effective 90 days after Oct. 24, 1972, see section 601(b) of Pub. L. 92–540, set out as a note under section 4101 of this title.
38 U.S.C. § 5308 (VETERANS’ BENEFITS)
§ 5308. Withholding benefits of persons in territory of the enemy
(a) When any alien entitled to gratuitous benefits under laws administered by the Secretary is located in territory of, or under military control of, an enemy of the United States or of any of its allies, any award of such benefits in favor of such alien shall be terminated forthwith.
(b) Any alien whose award is terminated under subsection (a) shall not thereafter be entitled to any such gratuitous benefits except upon the filing of a new claim, accompanied by evidence satisfactory to the Secretary showing that such alien was not guilty of mutiny, treason, sabotage, or rendering assistance to such enemy. Except as provided in section 5309 of this title, such gratuitous benefits shall not be paid for any period before the date the new claim is filed.
(c) While such alien is located in territory of, or under military control of, an enemy of the United States or of any of its allies, the Secretary, in the Secretary’s discretion, may apportion and pay any part of such benefits to the dependents of such alien. No dependent of such alien shall receive benefits by reason of this subsection in excess of the amount to which the dependent would be entitled if such alien were dead.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1231, § 3108; Pub. L. 99–576, title VII, § 701(74), Oct. 28, 1986, 100 Stat. 3297; renumbered § 5308 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, § 4(a)(1), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405.)
heading: Editorial Notes
heading: Amendments
text: 1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3108 of this title as this section.
Subsec. (a). Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.
Subsec. (b). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator”.
Pub. L. 102–40, § 402(d)(1), substituted “5309” for “3109”.
Subsec. (c). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” and “Secretary’s” for “Administrator’s”.
1986—Subsec. (c). Pub. L. 99–576 substituted “the Administrator’s” for “his” in first sentence, and “the dependent” for “he” in second sentence.
38 U.S.C. § 5309 (VETERANS’ BENEFITS)
§ 5309. Payment of certain withheld benefits
(a) Any person who, but for section 5308 of this title, was entitled to benefits under any of the laws administered by the Secretary, whose award of benefits was terminated under such section, or whose benefits were not paid pursuant to sections 3329 and 3330 of title 31, and who was not guilty of mutiny, treason, sabotage, or rendering assistance to an enemy of the United States or its allies, shall be paid the full amount of any benefits not paid because of such section 5308, or withheld (including the amount of any checks covered on such person’s account into the Treasury as miscellaneous receipts together with any amount to such person’s credit in the special-deposit account) pursuant to sections 3329 and 3330 of title 31. The Secretary shall certify to the Secretary of the Treasury the amounts of payments which, but for this section, would have been made from the special deposit account, and the Secretary of the Treasury, as directed by the Secretary, shall reimburse the appropriations of the Department from such special deposit account, or cover into the Treasury as miscellaneous receipts the amounts so certified.
(b) No payments shall be made for any period before the date claim therefor is filed under this section to any person whose award was terminated, or whose benefits were not paid, before July 1, 1954, because such person was a citizen or subject of Germany or Japan residing in Germany or Japan.
(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1232, § 3109; Pub. L. 97–258, § 3(k)(4), Sept. 13, 1982, 96 Stat. 1065; Pub. L. 99–576, title VII, § 701(75), Oct. 28, 1986, 100 Stat. 3297; renumbered § 5309 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, § 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405.)
heading: Editorial Notes
heading: Amendments
text: 1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3109 of this title as this section.
Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places in last sentence.
Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” in last sentence.
Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration” in first sentence.
Pub. L. 102–40, § 402(d)(1), substituted “5308” for “3108” in two places in first sentence.
1986—Subsec. (a). Pub. L. 99–576, § 701(75)(A), substituted “such person’s” for “his” in two places.
Subsec. (b). Pub. L. 99–576, § 701(75)(B), substituted “such person” for “he”.
1982—Subsec. (a). Pub. L. 97–258 substituted “sections 3329 and 3330 of title 31” for “sections 123–128 of title 31” wherever appearing.
38 U.S.C. § 5311 (VETERANS’ BENEFITS)
§ 5311. Prohibition of certain benefit payments
There shall be no payment of dependency and indemnity compensation, death compensation, or death pension which, because of a widow’s relationship with another man before enactment of Public Law 87–674, would not have been payable by the Veterans’ Administration under the standard for determining remarriage applied by that agency before said enactment.
(Added Pub. L. 91–376, § 8(b), Aug. 12, 1970, 84 Stat. 790, § 3111; renumbered § 5311, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238.)
heading: Editorial Notes
heading: References in Text
text: Public Law 87–674, referred to in text, is Pub. L. 87–674, Sept. 19, 1962, 76 Stat. 558, which was enacted Sept. 19, 1962, and amended sections 101, 103, and 3010 [now 5110] of this title to provide for the restoration of certain widows and children to the benefit rolls upon annulment of their marriages or remarriages.
heading: Amendments
text: 1991—Pub. L. 102–40 renumbered section 3111 of this title as this section.