M21-1-1mr 5. Requesting Federal Records

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M21-1-1MR

5. Requesting Federal Records

Introduction

This topic contains information about requesting Federal records, including

the types of Federal records that may be requested

continuing attempts to obtain records from a Federal department or agency

framing the requests

the waiting period after making the requests

concluding efforts to obtain records, and

notifying the claimant that records are not available.

a. Types of Federal Records That May Be Requested

VA may request the following Federal records:

service medical records

other relevant identified records pertaining to the claimant's service of the following type that are held by a government entity:

military

naval

air service

guard, or

reserves

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

records of relevant VA medical treatment or examination that the claimant identifies adequately

authorized VA medical treatment or examination at a non-VA facility if adequately identified, and

any other relevant records held by any Federal department or agency (such as those held by the Social Security Administration) that the claimant authorizes VA to obtain and adequately identifies.

Note: For disability compensation claims, obtain all the records if relevant and identified.

Reference: For more information on requesting records held by the Social Security Administration or other Federal department or agency, see M21-1, Part III, Chapter 9.

b. Continuing Attempts to Obtain Records

When records are in the custody of a Federal department or agency, the law obligates VA to continue attempts to obtain records until

records are obtained, or

it is reasonably certain that

the records do not exist, or

further efforts by VA to obtain the records would be futile.

VA must receive a response from the custodian before assuming it has met its duty to assist.

c. Framing the Requests

Frame the initial and any follow-up requests for Federal records in a complete and specific way so that the following is received

necessary information

necessary evidence, or

a negative reply.

Reference: For more information on how to create a request for service records, see chapter 4 of the Personnel Information Exchange System Participant Guide. This guide is now maintained on the VBA Compensation and Pension Service's Intranet site at: http://vbaw.vba.va.gov/bl/21/publicat/Users/index.htm#bmp.

d. Waiting Period After Making Requests

Allow

60 days for a response to the initial request, and

30 days for follow-up requests.

Inform the claimant of the status of his/her claim, including VA efforts to obtain identified records.

Note: If both Federal 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 categories of records.

e. Concluding Efforts to Obtain Records

Determine on a case-to-case basis whether further attempts to obtain records would be futile, based on the type of response received from the custodian of the record.

VA can be reasonably certain that records do not exist or that further attempts to request them would be futile in cases where a reply is received from the custodian of the records that

the requested records do not exist

the requested records are not in his/her possession

the requested records are lost, or

he/she is unable to provide the records for some other valid reason.

Any of the above must be documented in the file through either

a letter from the reported record holder, or

a report of contact on VA Form 119, "Report of Contact," or memo for record documenting the fact, with the name, phone number, and work site of the responsible official with whom the regional office employee discussed the matter.

f. Notifying the Claimant that Records Are Not Available

If VA receives an affirmative statement from a Federal records custodian that the requested records

do not exist or

are not in his/her possession,

VA is not required to make an administrative decision that the records are not available. However, the claimant must be provided with a notice that

identifies the records that could not be obtained

briefly explains the efforts made to obtain them; and

describes any further action to be taken with respect to the claim.

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

Note: If Federal records cannot be obtained, both the rating decision and the letter of notification must clearly indicate that the custodian of the records stated that the records could not be provided.