§3.159 Department Of Veterans Affairs Assistance In Developing Claims.

[allan]

§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 ©(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. 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. VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. If VA does not receive the necessary information and evidence requested from the claimant within one year of the date of the notice, VA cannot pay or provide any benefits based on that application. If the claimant has not responded to the request 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 request, 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))

© 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 ©(1), ©(2), and ©(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©)

(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

© 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)© could be satisfied by competent evidence showing post-service treatment for a condition, or other possible association with military service.

(iii) Paragraph ©(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))

[55 FR 52273, Dec. 21, 1990, as amended at 66 FR 45630, Aug. 29, 2001]

Supplement Highlights reference: 47(1)

Edited September 30, 2009 by allan

[LarryJ]

For everybody that comes here, on the hadit board, this should be required reading. Members should not be allowed to post until they state that they have read this.

Thanks Allan.

[darkhorse]

The VA has assisted me but I have ended up doing EVERYTHING for them. The VA is so damn slow I find everything works a lot fast if I just get them everything they need. Then I have everything in my personal file too in case they come back and say this or that or they didnt address something that I turned in and know they have in their possession. Well, today I got a letter in the mail stating that they need my last employment information. They didn' t specify what they needed as in do they need verfication of when I started and ended work or do they need my termination documents stating the circumstances that led to me getting fired? I don't know what the heck they need and don't know how to go about getting it. I called human resources today but no one answered so I left a message.

What do they need and why would they want my employment information from my last job that ended over a year ago?

It's upsetting because here is what they have in their possession.

1. a letter from voc rehab that I cannot continue school due to my SC conditions.

2. My SSD award letter soley for SC conditions.

3. A thorough evaluation by a PHD Psych opining that I am totally disabled for any work due to my SC conditions.

4 A Comp&pen exam stating my judgment is affected by my dsysphoria and that I was terminated from my last job due to judgement issues. Also that I am deficient in most areas including work and school.

5. A buddy letter from my other half attesting to what I go through on a daily basis. It's notarized.

6. Continuous medical records showing NO remissions from my depressive symptoms, suicidal thoughts, and insomnia.

I sent the VA an IRIS response today and here is what I sent.

I got infomation last week that my claim was being finalized to be sent to the rating board. Now I get a letter indicating you need my past employment records. I need to know what exactly do you need? Is it just my paperwork that tells you when I worked there and do you need a copy of the termination paperwork? I'm really upset since all this is gonna do is delay my claim since you already have an Opinion that declared me unemployable, both my comp&pen exams, past medical records, SSDI information for same SC conditions, buddy letter etc...I'm really confused on why you keep requesting information when you have more than enough evidence that I'm unemployable. I am not mentally stable right now and all these request are nerve racking and negatively affecting my mental illness. I haven't worked since May 2008 and you have all my medical information that shows I can't work due to my service connected disabilities. You even have a letter from my Voc Rehab counselor stating that I can't continue with school since employment isn't feasible now or in the future. What else do you need? I really am upset over all this.

I just called human resources and left a message for them to call me back. I am going to make a sincere effort to get this to you as soon as possible.

This is really mentally draining for me.

This is what I sent but I haven't gotten an IRIS response yet. I am getting more and more angry the more I think about it. Can we all say together, DELAY TACTIC????????????

dh

Edited September 30, 2009 by darkhorse

[allan]

Thanks Larry.

I was hoping it might help some of the new folks filing claims.

Sorry Darkhorse, i'll have to bump this to someone more experienced.

This is over my head.

[cowgirl]

Thanks for the font edit, my gray matter was trying to comply with Larry's advice, instead I developed a buzzards neck and new crowsfeet trying to read the small print. :D

(Honest I do use the computer zoom and resize features! often)

[allan]

CG,

I went back & tried to read it with my new bifocals so I thought I should change it.

For those using IE browser, you can blow up any page by clicking down on the right hand corner where it shows 100% and increasing it to 125% or what ever is best for you.

I've found this really helps to view any small print or images.

[LarryJ]

Thanks for the font edit, my gray matter was trying to comply with Larry's advice, instead I developed a buzzards neck and new crowsfeet trying to read the small print.

You're beginning to get foul............er, FOWL, on us!