§5109 — Title 38 Veterans' Benefits | U.S. Code

Summary

The Secretary can get advisory medical opinions from outside medical experts when a case is medically complex or controversial. Those experts must not be Department employees. The Secretary must arrange with recognized medical schools, universities, or clinics to provide the opinions, and an appropriate official at the chosen institution must pick the specific expert for each case. The Secretary must tell the claimant when an outside opinion is requested and give the claimant a copy when it is received. If the Board of Veterans’ Appeals thinks the Veterans Benefits Administration should have asked for an outside opinion, the Board must send the claim back and order the agency to obtain one and include the questions the expert should answer.

Title 38, §5109

Veterans' Benefits — Source: USLM XML via OLRC

(a)When, in the judgment of the Secretary, expert medical opinion, in addition to that available within the Department, is warranted by the medical complexity or controversy involved in a case being considered by the Department, the Secretary may secure an advisory medical opinion from one or more independent medical experts who are not employees of the Department.

(b)The Secretary shall make necessary arrangements with recognized medical schools, universities, or clinics to furnish such advisory medical opinions. Any such arrangement shall provide that the actual selection of the expert or experts to give the advisory opinion in an individual case shall be made by an appropriate official of such institution.

(c)The Secretary shall furnish a claimant with notice that an advisory medical opinion has been requested under this section with respect to the claimant’s case and shall furnish the claimant with a copy of such opinion when it is received by the Secretary.

(d)(1)The Board of Veterans’ Appeals shall remand a claim to direct the agency of original jurisdiction to obtain an advisory medical opinion from an independent medical expert under this section if the Board finds that the Veterans Benefits Administration should have exercised its discretion to obtain such an opinion.

(2)The Board’s remand instructions shall include the questions to be posed to the independent medical expert providing the advisory medical opinion.

Notes & Related Subsidiaries

Editorial Notes

Amendments

2017—Subsec. (d). Pub. L. 115–55 added subsec. (d). 1991—Pub. L. 102–40 renumbered section 3009 of this title as this section. Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” in two places. Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration” wherever appearing. Subsecs. (b), (c). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” wherever appearing.

Statutory Notes and Related Subsidiaries

Effective Date

of 2017 AmendmentAmendment 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.

Effective Date

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.

§5109 Independent medical opinions

Summary

Title 38, §5109

Notes & Related Subsidiaries

Editorial Notes

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Citations & Metadata