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Chapter 1. Rules Of Evidence


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Veterans Benefits Administration M21-1, Part III

Department of Veterans Affairs Change 111

Washington, DC 20420 December 29, 2003

Veterans Benefits Manual M21-1, Part III, “Authorization Procedures,” is changed as follows:

Pages 1-1 through 1-2 : Remove these pages and substitute pages 1-1 through 1-2 , attached.

Paragraph 1.02 (2)(B) has been revised to reflect 38 USC 5102.

Paragraph 1.02 b.(4) has been revised to reflect that after 60 days, the regional office will continue processing the claim, according to the Veterans Benefits Act of 2003, Section 701, which amended 38 USC §§ 5102 and 5103.

          • By Direction of the Under Secretary for Benefits




                    • Ronald J. Henke, Director




                              • Compensation and Pension Service






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














LOCAL REPRODUCTION AUTHORIZED


December 29, 2003 M21-1, Part III


Change 111

CHAPTER 1. RULES 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. VA has a duty to assist a claimant who files a substantially complete claim in obtaining evidence to substantiate his or her claim 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 identifies which might enable the claimant to substantiate the claim. The claimant has ultimate responsibility to insure that non-governmental information is in the record at the time of the decision. VA will make reasonable efforts to obtain non-governmental records identified by the claimant if the claimant provides a release acceptable to the record holder, and adequately identifies the records. Reasonable efforts mean an initial request and at least one follow up request, if necessary, for records from non-Federal agency sources.


1.02 DUTY TO ASSIST. Pub. L. 106-475 and 38 CFR 3.159 defines VBA’s duty to assist claimants who file substantially complete claims for VA benefits. This 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 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.

      1. Application 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).
        • (1) If the application is not substantially complete, notify the claimant and the claimant’s


          • (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;

        1-1

        M21-1, Part III December 29, 2003

        Change 111

        [*]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 identify any records he or she believes are relevant to the claim and provide information needed to identify records that VA will help obtain. Adequate identification of records would normally include the 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.

        (B) The notice must also inform the claimant that if information and evidence requested from the claimant to substantiate the application is not received within one year from the date of the notice, no benefit may be paid based on that application (38 USC 5102).

        b. 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 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. Ordinarily, you should wait to schedule a VA examination until requested Federal and non-Federal records indicate that there was an event, injury or disease in service that may be associated with the claimed current condition.

        c. 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;

        [*]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

        1-2

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