(a) Notice of time limit for filing evidence. (1) If a claimant's application is incomplete, the claimant will be notified of the evidence necessary to complete the application. If the evidence is not received within 1 year from the date of such notification, pension, compensation, or dependency and indemnity compensation may not be paid by reason of that application (38 U.S.C. 5103(a)). Information concerning the whereabouts of a person who has filed claim is not considered evidence.
(2) The provisions of this paragraph are applicable to original initial applications, to applications for increased benefits by reason of increased disability, age, or the existence of a dependent, and to applications for reopening or resumption of payments. If substantiating evidence is required with respect to the veracity of a witness or the authenticity of documentary evidence timely filed, there will be allowed for the submission of such evidence 1 year from the date of the request therefor. However, any evidence to enlarge the proofs and evidence originally submitted is not so included.
(b) Extension of time limit. Time limits within which claimants or beneficiaries are required to act to perfect a claim or challenge an adverse VA decision may be extended for good cause shown. Where an extension is requested after expiration of a time limit, the action required of the claimant or beneficiary must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. Denials of time limit extensions are separately appealable issues.
(Authority: 38 U.S.C. 501)
[26 FR 1569, Feb. 24, 1961, as amended at 26 FR 2231, Mar. 16, 1961; 29 FR 1462, Jan. 29, 1964; 30 FR 133, Jan. 7, 1965; 55 FR 13529, Apr. 11, 1990; 79 FR 57695, Sept. 25, 2014]
Notes of Decisions
Cited in
44
cases (
6 in the last 5 years), 1982–2025 · leading case:
Mason v. Brown, 8 Vet. App. 44 (Vet. App. 1995).
Mason v. Brown, 8 Vet. App. 44 (Vet. App. 1995).
· cites it 8× “However, as pointed out below, the finality of the February 1988 RO decision is in question based on a possible request by the appellant for an extension of time to file an NOD pursuant to 38 C.”
Roy v. Brown, 5 Vet. App. 554 (Vet. App. 1993).
· cites it 4× “The dissent next argues that 38 C.F.R. § 3.109 (b), infra, conflicts with 38 C.”
AG v. Peake, 536 F.3d 1306 (Fed. Cir. 2008).
· cites it 4× “If AG succeeds in appealing the 1985 determination or otherwise convinces the VA that 38 C.F.R. § 3.109 (b) 4 applies to his situation, his challenge to the denial of his benefits will be made, in the first instance, to the agency upon remand.”
Richard C. Fournier v. Eric K. Shinseki, 23 Vet. App. 480 (Vet. App. 2010).
· cites it 4× “Citing 38 C.F.R. § 3.109 (a) (1971), 2 the appellant remarks that “a sensible explanation would have apprised Appellant of what evidence was needed to substantiate .”
Corry v. Derwinski, 3 Vet. App. 231 (Vet. App. 1992).
· cites it 4× “38 C.F.R. § 3.109 (b). Appellant’s statement (“I was unable to respond to your initial denial due to the nature of my condition” (R.”
Michael T. Rudd v. R. James Nicholson, 20 Vet. App. 296 (Vet. App. 2006).
“Rudd is also not precluded from filing a request for an extension of the one-year time limit to file a Notice of Disagreement for “good cause shown” under 38 C.F.R. § 3.109 (b) (2005). We, of course, express no opinion as to the potential success of any such pursuits.”
Morris v. Derwinski, 1 Vet. App. 260 (Vet. App. 1991).
· cites it 2× “See 38 C.F.R. § 3.109 (b) (1962 & 1979). However, by amendment effective April 11, 1990, this provision was removed and replaced with procedures providing for the filing by the claimant for an extension of the one-year time limit for good cause shown and for appeal of a denial…”
Malone v. Gober, 10 Vet. App. 539 (Vet. App. 1997).
· cites it 2× “231, 235 (1992) ( 38 C.F.R. § 3.109 (b)’s use of the word “may” commits the decision to extend the filing period of a Notice of Disagreement to the sole discretion of the Secretary); accord Scott v.”
Hamilton v. Brown, 4 Vet. App. 528 (Vet. App. 1993).
“), which in 38 C.F.R. § 3.109 (b) (1992) permit the Secretary to extend the one-year period for “good cause .”
Kenneth J. McPhail v. R. James Nicholson, 19 Vet. App. 30 (Vet. App. 2005).
· cites it 4× “Nor does the record contain any evidence that the appellant *32 sought at any time to avail himself of relief afforded under 38 C.F.R. § 3.109 (b), which allows for an extension “for good cause shown,” of the time limit within which claimants must act to perfect a claim or…”
Scott v. Brown, 7 Vet. App. 184 (Vet. App. 1994).
· cites it 2× “In an October 1991 decision, the Board found that the March 1987 claim had not been appealed within one year after the RO decision of April 1987, but remanded the matter to the RO for it to determine whether, pursuant to 38 C.F.R. § 3.109 (b) (1993), there was good cause to…”
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