(a) General. When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA. Opinions shall be obtained from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made, and an appropriate official of the institution shall select the individual expert(s) to render an opinion.
(b) Requests. A request for an independent medical opinion in conjunction with a claim pending before VA may be initiated by the office having jurisdiction over the claim, by the claimant, or by his or her duly appointed representative. The request must be submitted in writing and must set forth in detail the reasons why the opinion is necessary. All such requests shall be submitted through the Veterans Service Center Manager or Pension Management Center Manager of the office having jurisdiction over the claim, and those requests which in the judgment of the Veterans Service Center Manager or Pension Management Center Manager merit consideration shall be referred to the Compensation Service or the Pension and Fiduciary Service for approval.
(c) Approval. (1) Requests for independent medical opinions shall be approved when one of the following conditions is met:
(i) The director of each Service from which a benefit is sought, or his or her designee, determines that the issue under consideration poses a medical problem of such complexity or controversy as to justify solicitation of an independent medical opinion; or
(ii) The independent medical opinion is required to fulfill the instructions contained in a remand order from the Board of Veterans' Appeals.
(2) A determination that an independent medical opinion is not warranted may be contested only as part of an appeal to the Board of Veterans' Appeals on the merits of the decision rendered on the primary issue by VA.
(d) Notification. The Compensation Service or the Pension and Fiduciary Service shall notify the claimant when the request for an independent medical opinion has been approved with regard to his or her claim and shall furnish the claimant with a copy of the opinion when it is received. If, in the judgment of the Secretary, disclosure of the independent medical opinion would be harmful to the physical or mental health of the claimant, disclosure shall be subject to the special procedures set forth in § 1.577 of this chapter.
(Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. 552a(f)(3))
[55 FR 18602, May 3, 1990, as amended at 79 FR 2100, Jan. 13, 2014; 84 FR 170, Jan. 18, 2019]
Notes of Decisions
Cited in
17
cases (
3 in the last 5 years), 1991–2023 · leading case:
Shoffner v. Principi, 16 Vet. App. 208 (Vet. App. 2002).
Shoffner v. Principi, 16 Vet. App. 208 (Vet. App. 2002).
· cites it 4× “§ 5109 ; 38 C.F.R. § 3.328 . Although the specialist's opinion that the RO sought was not an IMO, because it was provided by a VA physician, it was sought to clarify a question of etiology left open by the non-VA medical evidence of record.”
Barney O. Padgett v. R. James Nicholson, 19 Vet. App. 133 (Vet. App. 2005).
· cites it 2× “§ 5109 (c); 38 C.F.R. § 3.328 (d) (2004). c. Legislative Purpose: The express purpose for enacting the provision that is now codified as section 7109 was "to improve the appellate procedures applicable to veterans' claims by authorizing the referral of such claims to independent…”
Gary Littlejohn v. United States, 321 F.3d 915 (9th Cir. 2003).
“38 C.F.R. § 3.328 . This claimant-friendly system provides no opportunity for the VA to develop and offer evidence of the kind that eventually proved the undoing of Littlejohn’s FTCA claim.”
Bielby v. Brown, 7 Vet. App. 260 (Vet. App. 1994).
· cites it 2× “38 C.F.R. § 3.328 (1993). The VA Adjudication PROCEDURE Manual, Part VI, para.”
Ouida Wise v. Eric K. Shinseki, 26 Vet. App. 517 (Vet. App. 2014).
“260, 267 (1994) (remanding for the Board to consider medical treatises supporting a theory that the Board rejected “as lacking support in the medical community”); 38 C.F.R. § 3.328 (c) (2013) (authorizing VA to seek an independent medical opinion when, inter alia, “the issue…”
Cousino v. Derwinski, 1 Vet. App. 536 (Vet. App. 1991).
“In addition, if deemed necessary for an accurate assessment of appellant’s condition, an independent medical opinion may also be obtained under 38 C.F.R. § 3.328 (a) (1991). The results of such examination, and the opinion, if obtained, are to be provided to appellant who is…”
Perry v. Brown, 9 Vet. App. 2 (Vet. App. 1996).
“§ 5109 ; 38 C.F.R. § 3.328 (1995), or to provide for a VA examination of the veteran, see 38 C.”
Pellerin v. Brown, 10 Vet. App. 415 (Vet. App. 1997).
· cites it 2× “§ 7109 (West 1991); 38 C.F.R. § 3.328 (1993).. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As noted above, BVA has previously considered the issues of the veteran’s entitlement to service connection for lumbar spine and right leg disorders on one or more bases and, in each…”
Lawson v. Shinseki, 449 F. App'x 2 (Fed. Cir. 2010).
“Lawson asserted that the facts of his case entitled him to an advisory medical opinion from a medical expert not employed by the Department of Veterans Affairs, under the terms of 38 C.F.R. § 3.328 , which provide for such advisory opinions in cases involving “medical complexity…”
13-23 799 (Board of Vet. App. 2017).
· cites it 2× “The Board has considered the request; however, the evidence of record does not show that this case raises medical issues complex, controversial, or obscure enough to warrant such an outside examination under 38 C.F.R. §§ 3.328 and 20.901(d). Indeed, the representative failed to…”
Ghee v. McDonald, 641 F. App'x 976 (Fed. Cir. 2016).
“See generally 38 C.F.R. § 3.328 (explaining as a matter of discretion the factual circumstances when “an advisory medical opinion may be obtained”).”
09-50 948 (Board of Vet. App. 2017).
“The Board acknowledges the Veteran's representative's request in the January 2017 written brief for "if the Board is unable to grant to the increased evaluations to exercise authority under 38 C.F.R. §§ 3.328 and 20.901(d) [and for] and Independent Medical Opinion from an expert…”
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.