[House Report 119-98]
[From the U.S. Government Publishing Office]
119th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 119-98
======================================================================
IMPROVING VA TRAINING FOR MILITARY
SEXUAL TRAUMA CLAIMS ACT
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May 17, 2025.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
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Mr. Bost, from the Committee on Veterans' Affairs,
submitted the following
R E P O R T
[To accompany H.R. 2201]
[Including cost estimate of the Congressional Budget Office]
The Committee on Veterans' Affairs, to whom was referred
the bill (H.R. 2201) to amend title 38, United States Code, to
improve claims, made under laws administered by the Secretary
of Veterans Affairs, regarding military sexual trauma, and for
other purposes, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 2
Background and Need for Legislation.............................. 3
Hearings......................................................... 5
Subcommittee Consideration....................................... 6
Committee Consideration.......................................... 6
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 7
Statement of General Performance Goals and Objectives............ 7
Earmarks and Tax and Tariff Benefits............................. 7
Committee Cost Estimate.......................................... 7
Budget Authority and Congressional Budget Office Estimate........ 7
Federal Mandates Statement....................................... 8
Advisory Committee Statement..................................... 8
Applicability to Legislative Branch.............................. 8
Statement on Duplication of Federal Programs..................... 8
Section-by-Section Analysis of the Legislation................... 8
Changes in Existing Law Made by the Bill, as Reported............ 9
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Improving VA Training for Military
Sexual Trauma Claims Act''.
SEC. 2. IMPROVEMENT OF CLAIMS BASED ON MILITARY SEXUAL TRAUMA UNDER
LAWS ADMINISTERED BY THE SECRETARY OF VETERANS AFFAIRS.
(a) Training for Employees Who Process Such Claims.--
(1) In general.--Subsection (c) of section 1166 of title 38,
United States Code, is amended--
(A) in paragraph (1), by striking ``members of teams
established under subsection (a) are trained'' and
inserting ``each employee of the Department who
processes such a claim, communicates with a claimant
regarding evidence supporting such a claim, or decides
such a claim, receives annual sensitivity training and
training''; and
(B) by adding at the end the following new
paragraphs:
``(4) The Secretary shall ensure that training received by an
employee under this subsection is appropriate for how much experience
the employee has with such claims.
``(5) The Secretary shall update training under this subsection not
less than once annually.''.
(2) Report.--Not later than 90 days after the date of the
enactment of this Act, the Secretary of Veterans Affairs shall
submit to the Committees on Veterans' Affairs of the Senate and
House of Representatives a report regarding--
(A) training provided under such subsection before
such date; and
(B) plans of the Secretary to carry out the
amendments made by paragraph (1).
(b) Expansion of Duty to Assist in Obtaining Records for a
Compensation Claim.--Section 5103A(c) of title 38, United States Code,
is amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting, after paragraph (1), the following new
paragraph (2):
``(2) In the case of a claim under section 1166 of this title, the
assistance provided by the Secretary under this section shall include
obtaining--
``(A) the service personnel record of the claimant; and
``(B) the service medical record of the claimant.''.
(c) Sensitivity Training for Certain Contracted Health Care
Professionals: Report; Improvements.--Not later than 90 days after the
date of the enactment of this Act, the Secretary of Veterans Affairs
shall submit to the Committees on Veterans' Affairs of the Senate and
House of Representatives a report on--
(1) sensitivity training required for health care
professionals and individuals who communicate with veterans to
schedule examinations, contracted under section 504 of the
Veterans' Benefits Improvements Act of 1996 (Public Law 104-
275; 38 U.S.C. 5101 note), to perform examinations of veterans
who make claims under section 1166 of title 38, United States
Code; and
(2) the plan of the Secretary to--
(A) improve such sensitivity training; and
(B) ensure that a veteran who makes such a claim is
not retraumatized during such an examination by such a
contracted health care professional.
Purpose and Summary
H.R. 2201, the ``Improving VA Training for Military Sexual
Trauma Claims Act,'' was introduced by Rep. Young Kim of
California on March 18, 2025. The bill, as amended, would
ensure Department of Veterans Affairs (VA) employees who
process claims for disability compensation based on military
sexual trauma (MST), and the VA claims processors who
communicate with claimants about such MST claims, undergo
annual sensitivity training and annual training on how to
identify the evidence needed to support MST claims. The bill,
as amended, would also require VA to automatically obtain all
service personnel and service medical records of a veteran who
filed an MST claim. Finally, the bill would require VA to
submit a plan to Congress on how VA will improve sensitivity
training required for contracted vendors who schedule and
perform disability compensation examinations for veterans who
file MST claims.
Background and Need for Legislation
Section 1: Short Title
This Act may be cited as the ``Improving VA Training for
Military Sexual Trauma Claims Act.''
Section 2: Improvement of Claims Based on Military Sexual Trauma
Under Laws Administered by the Secretary of Veterans Affairs
When a veteran files a disability benefits claim, under 38
U.S.C. Sec. 5103A, VA has a ``duty to assist'' the veteran
with obtaining federal records, including service treatment
records and service personnel records, relevant to their claim.
Claims for service connection for a disability, such as post-
traumatic stress, based on an in-service military sexual trauma
(MST) are often difficult to prove because a veteran's service
records rarely directly corroborate that MST occurred, due
primarily to military culture that discourages reporting MST.
Current law (e.g., 38 C.F.R. Sec. 3.304(f)(5)), therefore,
allows VA to consider evidence in a veteran's service medical
and service personnel records that could corroborate the
veteran's account of experiencing an MST--so-called
``markers''.
Service personnel records can include markers of MST, such
as a request for a transfer to another military duty
assignment, or deterioration in military duty performance. A
claims processor may place a request with the appropriate
service records storage facility to provide a complete copy of
both a veteran's service medical records and service personnel
records (e.g., a single PersonnelInformation Exchange System
(PIES) request for both types of records).\1\ Yet, VA claims
processors do not always obtain the service personnel records,
and the VA Board of Veterans' Appeals (Board) continues to find
that the Veterans Benefits Administration (VBA) claims
processors failed under VA's duty to assist to obtain a
veteran's service medical records and service personnel records
in MST claims.\2\
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\1\See M21-1 VBA Adjudication Procedures Manual, Part III, Subpart
ii, Chapter 2, Section A--General Information on Service Records
(updated March 19, 2025), https://www.knowva.ebenefits.va.gov/system/
templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/
554400000001018/topic/554400000004049/M21-1-Adjudication-Procedures-
Manual.
\2\See e.g., Board of Veterans' Appeals Docket No. 240323-427068
(remanded March 26, 2025).
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VA is required by law to provide claims processors with
training to identify those ``markers,'' but there is no
requirement under the law for annual training to refresh their
knowledge of complex MST claims. Also, inadequate sensitivity
training has resulted in insensitive VA communications to MST
victims that can retraumatize those veterans. Although VA is
reportedly amending the language used in VA claims decisions to
ensure they are more sensitive, those claims decisions are just
one of many different types of communications that VBA claims
processors have with MST survivors.\3\ VA requires a one-time
sensitivity training for claims processors who communicate with
veterans who experienced an MST,\4\ but there is no requirement
under the law to provide those claims processors with annual
sensitivity training refreshers and to keep up with new best
practices in trauma-informed communication.
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\3\Congressionally Mandated Report--Claims for Disabilities
Incurred or Aggravated by Military Sexual Trauma (May 2025).
\4\Congressionally Mandated Report--Claims for Disabilities
Incurred or Aggravated by Military Sexual Trauma (May 2025).
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In fiscal year 2024, 10.6 percent of all denied MST claims
were denied because the veteran did not appear for their
scheduled disability compensation examination. Roughly 95% of
these exams are conducted by contracted exam vendors. The
Committee has learned from veterans' advocates and exam vendors
that MST survivors often miss their exams because retelling
their MST experience is triggering for them, and the exam
schedulers and the examiners are often insensitive or not
trauma-informed. Although VA recently provided contracted
examination vendors with a ``guide'' for trauma-informed
communication with veterans,\5\ contracted schedulers and
examiners are not required by VA to regularly complete
comprehensive sensitivity training. The Committee has learned
from vendors about how there are inconsistent policies from
vendor to vendor concerning how they interact with MST
survivors.
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\5\Ms. Kenesha Britton, Testimony of VA (March 26, 2025), HHRG-119-
VR09-Wstate-BrittonK-20250326.pdf.
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At a March 26, 2025, Subcommittee on Disability Assistance
and Memorial Affairs legislative hearing,\6\ the Committee
heard from veterans' advocates that improvements should be made
to ensure that MST survivors receive accurate and timely
decisions on their claims, and that communications from VA
claims processors and contracted examination vendors to MST
survivors are trauma-informed to prevent re-traumatization.
---------------------------------------------------------------------------
\6\Subcommittee on Disability Assistance and Memorial Affairs
Legislative Hearing | House Committee on Veterans Affairs.
---------------------------------------------------------------------------
In a statement for the record for the March 26, 2025,
legislative hearing, Ms. Nancy Springer, Associate Director,
National Legislative Service, Veterans of Foreign Wars of the
United States, stated:
``Some MST survivors are hesitant to report their
incidents for a variety of reasons, one of which is a
fear of retraumatization during the claims process. A
claims processor asking probing questions or a claimant
having to repeatedly recount assault details could be a
trigger. To help prevent these situations, the VFW
fully supports mandating this sensitivity training to
teach claims processors how to elicit vital information
for claims adjudication without retraumatizing . . .''
``Though their records may not contain traditional
evidentiary support such as a medical examination
directly attributable to a trauma, an investigation
report, or a police report, they may include
``markers'' that could substantiate a claim or provide
cause for further medical examination or opinion. For
example, personnel records could include abrupt or
nonstandard transfer requests or performance
evaluations that indicate an inexplicable drop in
performance. VA automatically obtaining these records
for claims related to MST and mental health would
standardize and therefore streamline procedures for
these typically complicated and nuanced claims.''\7\
---------------------------------------------------------------------------
\7\Nancy Springer, Statement for the Record of Veterans of Foreign
Wars of the United States (March 26, 2025), HHRG-119-VR09-20250326-
SD005.pdf.
---------------------------------------------------------------------------
In a statement for the record for the March 26, 2025,
legislative hearing, Mr. Marquis D. Barefield, Assistant
National Legislative Director, Disabled American Veterans,
stated:
``Markers of MST are often difficult to verify in
medical records. This bill highlights the need,
especially for claims related to MST to require VA to
obtain personnel records and service treatment records
and review them for these markers if there is no other
supporting evidence of record. This change will
increase the veteran's ability to validate their claim
and obtain the benefits they earned. By requiring those
who process MST claims to attend annual sensitivity
training and training tailored to MST, they are better
equipped to handle these unique cases with care and
professionalism and not retraumatizing veterans in the
process.''\8\
---------------------------------------------------------------------------
\8\Marquis D. Barefield, Statement for the Record of Disabled
American Veterans (March 26, 2025), HHRG-119-VR09-20250326-SD002.pdf.
---------------------------------------------------------------------------
In her written testimony for the March 26, 2025,
legislative hearing, Ms. Diane Boyd Rauber, Executive Director,
National Organization of Veterans' Advocates, Inc., stated that
``VA should always be obtaining the service personnel record
and service medical record of every veteran seeking benefits as
part of its regular duty to assist.''\9\
---------------------------------------------------------------------------
\9\Diane Boyd Rauber, Testimony of National Organization of
Veterans' Advocates, Inc. (March 26, 2025), HHRG-119-VR09-Wstate-
BoydRauberD-20250326.pdf (House.gov).
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To address these issues, this section would require VA
employees who process MST based claims and those who
communicate with claimants about such claims undergo annual
training, commensurate with their experience level, on how to
identify ``markers'' in evidence that could support a grant of
an MST claim. This section would also require annual
sensitivity training for VA claims processors and require VA to
update such training annually. It would also require VA to
report to Congress on the training required by this section.
Additionally, this section would require VA to automatically
obtain all service personnel and service medical records of a
veteran who filed an MST claim. Finally, this section would
require VA to submit a plan to Congress on how VA will improve
sensitivity training required for contracted disability
compensation examiners, as well as for those who schedule
contracted examinations.
The Committee believes that this section is critical to
ensure that veterans who have endured a military sexual trauma
are not retraumatized by the VA disability compensation
process, including when receiving VA communications and
undergoing VA-contracted disability compensation examinations.
The Committee also believes that this section is important to
ensure that veterans pursuing disability compensation based on
a military sexual trauma receive timely and accurate decisions
on their claims.
Hearings
On March 26, 2025, the Subcommittee on Disability
Assistance and Memorial Affairs held a legislative hearing on
H.R. 2201 and other bills that were pending before the
subcommittee.
The following witnesses testified:
The Honorable Keith Self, U.S. House of
Representatives; The Honorable Young Kim, U.S. House of
Representatives; The Honorable August Pfluger, U.S.
House of Representatives; The Honorable Rudy Yakym III,
U.S. House of Representatives; The Honorable Tom
Barrett, U.S. House of Representatives; The Honorable
Robert P. Bresnahan, U.S. House of Representatives;
Mrs. Patricia Krisfalusy-Maxon, Sister of Master
Sergeant Dennis Krisfalusy, U.S. Air Force (Retired);
Colonel Andrew Shurtleff, U.S. Air Force (Retired); Ms.
Diane Boyd Rauber, Executive Director, National
Organization of Veterans' Advocates; Ms. Lesley Witter,
Senior Vice President, Advocacy, National Funeral
Directors Association; Ms. Kenesha Britton, Assistant
Deputy Undersecretary, Field Operations, Veterans
Benefits Administration, U.S. Department of Veterans
Affairs; Ms. Jocelyn Moses, Senior Principal Advisor,
Compensation Service, Veterans Benefits Administration,
U.S. Department of Veterans Affairs; Ms. Lisa Pozzebon,
Executive Director, Cemetery Operations, National
Cemetery Administration, U.S. Department of Veterans
Affairs; and Mr. Evan Deichert, Acting Deputy Vice
Chairman, Board of Veterans' Appeals, U.S. Department
of Veterans Affairs.
The following individuals and organizations submitted
statements for the record:
Disabled American Veterans; Paralyzed Veterans of
America; Tragedy Assistance Program for Survivors;
Veterans of Foreign Wars of the United States; and the
American Federation of Government Employees, AFL-CIO.
Subcommittee Consideration
On April 9, 2025, the Subcommittee on Disability Assistance
and Memorial Affairs met in an open markup session to consider
H.R. 2201. During consideration of the bill, the following
amendments were considered:
An amendment in the nature of a substitute to H.R.
2201 was offered by Representative Luttrell to require
VA to automatically obtain all service personnel
records when requesting a claimant's service medical
records. The amendment in the nature of a substitute
was approved by voice vote.
A motion by Representative McGarvey to favorably forward
H.R. 2201, as amended, to the Full Committee, was agreed to by
voice vote.
Committee Consideration
On May 6, 2025, the Full Committee met in open markup
session with a quorum being present, to consider H.R. 2201, as
amended. A motion by Ranking Member Takano to report H.R. 2201,
as amended, favorably to the House of Representatives, was
agreed to by voice vote.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, no recorded votes were taken on
amendments or in connection with ordering H.R. 2201, as
amended, reported to the House.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee's performance
goals and objectives of H.R. 2201, as amended, are to ensure
that veterans who have endured a military sexual trauma are not
retraumatized by the VA disability compensation process and
ensure veterans have access to their earned VA disability
compensation benefits.
Earmarks and Tax and Tariff Benefits
H.R. 2201, as amended, does not contain any Congressional
earmarks, limited tax benefits, or limited tariff benefits as
defined in clause 9 of rule XXI of the Rules of the House of
Representatives.
Committee Cost Estimate
The Committee adopts as its own the Congressional Budget
Office cost estimate on this measure.
Budget Authority and Congressional Budget Office
Cost Estimate
Pursuant to clause (3)(c)(3) of rule XIII of the Rules of
the House of Representatives, the following is the cost
estimate for H.R. 1969, as amended, provided by the
Congressional Budget Office (CBO) pursuant to section 402 of
the Congressional Budget Act of 1974:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
H.R. 2201 would require the Department of Veterans Affairs
(VA) to provide annual sensitivity training for employees who
process or decide claims for VA benefits that result from
military sexual trauma (MST). The bill also would require VA to
obtain a veteran's service personnel and service medical
records when processing those claims. The department already
provides annual sensitivity training to employees who handle
MST-related claims. Further, VA is already required to assist
veterans in obtaining necessary evidence to substantiate
benefits claims under current law. Such evidence may include
the veteran's service personnel and service medical records, as
well as other evidence. Because VA is already providing
employees with annual sensitivity training and is required to
obtain all necessary evidence when processing benefits claims,
those requirements would not affect the federal budget.
The bill would also require VA to submit two reports to the
Congress on the sensitivity training it provides to department
employees and to contracted medical professionals who process,
decide, or evaluate claims for VA benefits concerning MST.
Using information on the cost of similar reports, CBO estimates
the reporting requirements would increase spending subject to
appropriation by less than $500,000.
The CBO staff contact for this estimate is Logan Smith. The
estimate was reviewed by Christina Hawley Anthony, Deputy
Director of Budget Analysis.
Phillip L. Swagel,
Director, Congressional Budget Office.
Federal Mandates Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandate Reform Act, P.L. 104-4 is inapplicable to H.R. 2201, as
amended.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
2201, as amended.
Applicability to Legislative Branch
The Committee finds that H.R. 2201, as amended, does not
relate to the terms and conditions of employment or access to
public services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Statement on Duplication of Federal Programs
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 2201, as amended, would establish or reauthorize a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 would establish the short title of the bill as
the ``Improving VA Training for Military Sexual Trauma Claims
Act.''
Section 2: Improvement of claims based on Military Sexual Trauma
under laws administered by the Secretary of Veterans Affairs
Section 2 would amend 38 U.S.C. Sec. 1166(c), to require VA
employees who process claims based on MST and who communicate
with claimants about such MST claims to undergo annual
training, appropriate for their experience level, on how to
identify ``markers'' of MST, as well as annual sensitivity
training. This section would require VA to update such training
annually, and, not later than 90 days after the enactment of
the Act, to report to the Committees on Veterans' Affairs of
the House of Representatives and the Senate on VA's
implementation of the training required by this section.
Second 2 would also amend 38 U.S.C. Sec. 5103A(c) to
specify that in an MST claim under 38 U.S.C. Sec. 1166, VA's
duty to assist shall include obtaining the claimant's service
personnel records and service medical records.
Finally, Section 2 would require VA, not later than 90 days
after the date of enactment of this Act, to submit to
Committees on Veterans' Affairs of the Senate and House a
report on (1) how VA will improve sensitivity training required
for contracted disability compensation examiners, as well as
for those who schedule contracted examinations; and (2) VA's
plan to ensure that a veteran pursuing an MST claim is not
retraumatized during contracted disability compensation
examinations.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 38, UNITED STATES CODE
* * * * * * *
PART II--GENERAL BENEFITS
* * * * * * *
CHAPTER 11--COMPENSATION FOR SERVICE-
CONNECTED DISABILITY OR DEATH
* * * * * * *
SUBCHAPTER VI--GENERAL COMPENSATION PROVISIONS
* * * * * * *
Sec. 1166. Claims involving military sexual trauma
(a) Processing.--(1) The Secretary shall establish
specialized teams to process claims for compensation for a
covered mental health condition based on military sexual trauma
experienced by a veteran during active military, naval, air, or
space service.
(2) A peer support specialist of the Department--
(A) shall not be responsible for providing any
assistance to a veteran regarding a claim described in
paragraph (1), other than counseling services,
guidance, and support, pursuant to duties determined by
the Under Secretary for Health; and
(B) shall not participate in the adjudication of such
a claim.
(b) Referrals to MST Coordinators.--The Secretary shall
include, in forms for claims described in subsection (a), an
option for a veteran to elect to be referred to a military
sexual trauma coordinator of the Veterans Health Administration
at the facility of the Department nearest to the residence of
such veteran.
(c) Training.--(1) The Secretary shall ensure that [members
of teams established under subsection (a) are trained] each
employee of the Department who processes such a claim,
communicates with a claimant regarding evidence supporting such
a claim, or decides such a claim, receives annual sensitivity
training and training to identify markers indicating military
sexual trauma.
(2) The Secretary shall ensure that peer support specialists
of the Department receive annual training on how to provide
peer support regarding military sexual trauma.
(3) The Secretary shall provide annual training, regarding
the processing of claims described in subsection (a), to the
following individuals:
(A) Military sexual trauma coordinators of the
Veterans Health Administration.
(B) Peer support specialists of the Department.
(4) The Secretary shall ensure that training received by an
employee under this subsection is appropriate for how much
experience the employee has with such claims.
(5) The Secretary shall update training under this subsection
not less than once annually.
(d) Definitions.--In this section:
(1) The term ``covered mental health condition''
means post-traumatic stress disorder, anxiety,
depression, or other mental health diagnosis described
in the current version of the Diagnostic and
Statistical Manual of Mental Disorders published by the
American Psychiatric Association that the Secretary
determines to be related to military sexual trauma.
(2) The term ``military sexual trauma'' means, with
respect to a veteran, a physical assault of a sexual
nature, battery of a sexual nature, or sexual
harassment during active military, naval, air, or space
service.
* * * * * * *
PART IV--GENERAL ADMINISTRATIVE
PROVISIONS
* * * * * * *
CHAPTER 51--CLAIMS, EFFECTIVE DATES, AND
PAYMENTS
SUBCHAPTER I--CLAIMS
* * * * * * *
Sec. 5103A. Duty to assist claimants
(a) Duty To Assist.--(1) The Secretary shall make reasonable
efforts to assist a claimant in obtaining evidence necessary to
substantiate the claimant's claim for a benefit under a law
administered by the Secretary.
(2) The Secretary is not required to provide assistance to a
claimant under this section if no reasonable possibility exists
that such assistance would aid in substantiating the claim.
(3) The Secretary may defer providing assistance under this
section pending the submission by the claimant of essential
information missing from the claimant's application.
(b) Assistance in Obtaining Private Records.--(1) As part of
the assistance provided under subsection (a), the Secretary
shall make reasonable efforts to obtain relevant private
records that the claimant adequately identifies to the
Secretary.
(2)(A) Whenever the Secretary, after making such reasonable
efforts, is unable to obtain all of the relevant records
sought, the Secretary shall notify the claimant that the
Secretary is unable to obtain records with respect to the
claim. Such a notification shall--
(i) identify the records the Secretary is unable to
obtain;
(ii) briefly explain the efforts that the Secretary
made to obtain such records; and
(iii) explain that the Secretary will decide the
claim based on the evidence of record but that this
section does not prohibit the submission of records at
a later date if such submission is otherwise allowed.
(B) The Secretary shall make not less than two requests to a
custodian of a private record in order for an effort to obtain
relevant private records to be treated as reasonable under this
section, unless it is made evident by the first request that a
second request would be futile in obtaining such records.
(3)(A) This section shall not apply if the evidence of record
allows for the Secretary to award the maximum benefit in
accordance with this title based on the evidence of record.
(B) For purposes of this paragraph, the term ``maximum
benefit'' means the highest evaluation assignable in accordance
with the evidence of record, as long as such evidence is
adequate for rating purposes and sufficient to grant the
earliest possible effective date in accordance with section
5110 of this title.
(4) Under regulations prescribed by the Secretary, the
Secretary--
(A) shall encourage claimants to submit relevant
private medical records of the claimant to the
Secretary if such submission does not burden the
claimant; and
(B) in obtaining relevant private records under
paragraph (1), may require the claimant to authorize
the Secretary to obtain such records if such
authorization is required to comply with Federal,
State, or local law.
(c) Obtaining Records for Compensation Claims.--(1) In the
case of a claim for disability compensation, the assistance
provided by the Secretary under this section shall include
obtaining the following records if relevant to the claim:
(A) The claimant's service medical records and, if
the claimant has furnished the Secretary information
sufficient to locate such records, other relevant
records pertaining to the claimant's active military,
naval, air, or space service that are held or
maintained by a governmental entity.
(B) Records of relevant medical treatment or
examination of the claimant at Department health-care
facilities or at the expense of the Department, if the
claimant furnishes information sufficient to locate
those records.
(C) Any other relevant records held by any Federal
department or agency that the claimant adequately
identifies and authorizes the Secretary to obtain.
(2) In the case of a claim under section 1166 of this title,
the assistance provided by the Secretary under this section
shall include obtaining--
(A) the service personnel record of the claimant; and
(B) the service medical record of the claimant.
[(2)] (3) Whenever the Secretary attempts to obtain records
from a Federal department or agency under this subsection, the
efforts to obtain those records shall continue until the
records are obtained unless it is reasonably certain that such
records do not exist or that further efforts to obtain those
records would be futile.
(d) Medical Examinations for Compensation Claims.--(1) In the
case of a claim for disability compensation, the assistance
provided by the Secretary under subsection (a) shall include
providing a medical examination or obtaining a medical opinion
when such an examination or opinion is necessary to make a
decision on the claim.
(2) The Secretary shall treat an examination or opinion as
being necessary to make a decision on a claim for purposes of
paragraph (1) if the evidence of record before the Secretary,
taking into consideration all information and lay or medical
evidence (including statements of the claimant)--
(A) contains competent evidence that the claimant has
a current disability, or persistent or recurrent
symptoms of disability; and
(B) indicates that the disability or symptoms may be
associated with the claimant's active military, naval,
air, or space service; but
(C) does not contain sufficient medical evidence for
the Secretary to make a decision on the claim.
(e) Applicability of Duty to Assist.--(1) The Secretary's
duty to assist under this section shall apply only to a claim,
or supplemental claim, for a benefit under a law administered
by the Secretary until the time that a claimant is provided
notice of the agency of original jurisdiction's decision with
respect to such claim, or supplemental claim, under section
5104 of this title.
(2) The Secretary's duty to assist under this section shall
not apply to higher-level review by the agency of original
jurisdiction, pursuant to section 5104B of this title, or to
review on appeal by the Board of Veterans' Appeals.
(f) Correction of Duty to Assist Errors.--(1) If, during
review of the agency of original jurisdiction decision under
section 5104B of this title, the higher-level adjudicator
identifies or learns of an error on the part of the agency of
original jurisdiction to satisfy its duties under this section,
and that error occurred prior to the agency of original
jurisdiction decision being reviewed, unless the Secretary may
award the maximum benefit in accordance with this title based
on the evidence of record, the higher-level adjudicator shall
return the claim for correction of such error and
readjudication.
(2)(A) If the Board of Veterans' Appeals, during review on
appeal of an agency of original jurisdiction decision,
identifies or learns of an error on the part of the agency of
original jurisdiction to satisfy its duties under this section,
and that error occurred prior to the agency of original
jurisdiction decision on appeal, unless the Secretary may award
the maximum benefit in accordance with this title based on the
evidence of record, the Board shall remand the claim to the
agency of original jurisdiction for correction of such error
and readjudication.
(B) Remand for correction of such error may include directing
the agency of original jurisdiction to obtain an advisory
medical opinion under section 5109 of this title.
(3) Nothing in this subsection shall be construed to imply
that the Secretary, during the consideration of a claim, does
not have a duty to correct an error described in paragraph (1)
or (2) that was erroneously not identified during higher-level
review or during review on appeal with respect to the claim.
(g) Regulations.--The Secretary shall prescribe regulations
to carry out this section.
(h) Rule With Respect to Disallowed Claims.--Nothing in this
section shall be construed to require the Secretary to
readjudicate a claim that has been disallowed except when new
and relevant evidence is presented or secured, as described in
section 5108 of this title.
(i) Other Assistance Not Precluded.--Nothing in this section
shall be construed as precluding the Secretary from providing
such other assistance under subsection (a) to a claimant in
substantiating a claim as the Secretary considers appropriate.
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