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Title 38 — Veterans' BenefitsRelease 119-73not60

§5109 Independent Medical Opinions

Title 38 › Part IV— GENERAL ADMINISTRATIVE PROVISIONS › Chapter 51— CLAIMS, EFFECTIVE DATES, AND PAYMENTS › Subchapter I— CLAIMS › § 5109

Last updated Apr 5, 2026|Official source

Summary

The Secretary may get advisory medical opinions from outside experts when a case is medically complex or controversial. The VA must arrange this with recognized medical schools, universities, or clinics, which choose the experts. The Secretary must notify the claimant and give a copy of the opinion when it is received. If the Board finds the Veterans Benefits Administration should have sought one, it must remand the case to get the opinion and include the questions the expert should answer.

Full Legal Text

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.

Legislative History

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.

Reference

Citations & Metadata

Citation

38 U.S.C. § 5109

Title 38 — Veterans' Benefits

Last Updated

Apr 5, 2026

Release point: 119-73not60