38 U.S.C. § 5107

Claimant responsibility; benefit of the doubt

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(a)Claimant Responsibility.—Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.(b)Benefit of the Doubt.—The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4106, § 3007; renumbered § 5107 and amended Pub. L. 102–40, title IV, § 402(b)(1), (d)(1), May 7, 1991, 105 Stat. 238, 239; Pub. L. 102–83, § 4(a)(1), (3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 106–398, § 1 [[div. A], title XVI, § 1611(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–359; Pub. L. 106–419, title I, § 104(c)(2), Nov. 1, 2000, 114 Stat. 1828; Pub. L. 106–475, § 4, Nov. 9, 2000, 114 Stat. 2098.)Editorial NotesAmendments

2000—Pub. L. 106–475 substituted “Claimant responsibility; benefit of the doubt” for “Burden of proof; benefit of the doubt” in section catchline and amended text generally. Prior to amendment, text read as follows:

“(a) Except when otherwise provided by the Secretary in accordance with the provisions of this title, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary shall assist such a claimant in developing the facts pertinent to the claim. Such assistance shall include requesting information as described in section 5106 of this title.

“(b) When, after consideration of all evidence and material of record in a case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specified in subsection (a) of this section.”

Pub. L. 106–398, § 1 [[div. A], title XVI, § 1611(a)], directed the general amendment of the section catchline and text. Pub. L. 106–419, § 104(c)(2), provided that, as of the enactment of Pub. L. 106–419, the amendment made by Pub. L. 106–398, § 1 [[div. A], title XVI, § 1611(a)], was deemed for all purposes not to have taken effect and that Pub. L. 106–398, § 1 [[div. A], title XVI, § 1611(a)], ceased to be in effect.

1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3007 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)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.

Pub. L. 102–40, § 402(d)(1), substituted “5106” for “3006”.

Subsec. (b). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” before “the burden”.

Pub. L. 102–83, § 4(a)(3), (4), substituted “Department” for “Veterans’ Administration”.

Pub. L. 102–83, § 4(a)(1), substituted “administered by the Secretary” for “administered by the Veterans’ Administration”.

Statutory Notes and Related SubsidiariesEffective Date of 2000 Amendment

Pub. L. 106–475, § 7, Nov. 9, 2000, 114 Stat. 2099, provided that:“(a)In General.—Except as specifically provided otherwise, the provisions of section 5107 of title 38, United States Code, as amended by section 4 of this Act, apply to any claim—“(1) filed on or after the date of the enactment of this Act [Nov. 9, 2000]; or“(2) filed before the date of the enactment of this Act and not final as of that date.“(b)Rule for Claims the Denial of Which Became Final After the Court of Appeals for Veterans Claims Decision in the Morton Case.—(1) In the case of a claim for benefits denied or dismissed as described in paragraph (2), the Secretary of Veterans Affairs shall, upon the request of the claimant or on the Secretary’s own motion, order the claim readjudicated under chapter 51 of such title, as amended by this Act, as if the denial or dismissal had not been made.“(2) A denial or dismissal described in this paragraph is a denial or dismissal of a claim for a benefit under the laws administered by the Secretary of Veterans Affairs that—“(A) became final during the period beginning on July 14, 1999, and ending on the date of the enactment of this Act; and“(B) was issued by the Secretary of Veterans Affairs or a court because the claim was not well grounded (as that term was used in section 5107(a) of title 38, United States Code, as in effect during that period).“(3) A claim may not be readjudicated under this subsection unless a request for readjudication is filed by the claimant, or a motion is made by the Secretary, not later than 2 years after the date of the enactment of this Act.“(4) In the absence of a timely request of a claimant under paragraph (3), nothing in this Act [see Short Title of 2000 Amendments note set out under section 101 of this title] shall be construed as establishing a duty on the part of the Secretary of Veterans Affairs to locate and readjudicate a claim described in this subsection.”

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.

Notes of Decisions

Cited in 2,896 cases (231 in the last 5 years), 1991–2025 · leading case: Holliday v. Principi, 14 Vet. App. 280 (Vet. App. 2001).

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Holliday v. Principi, 14 Vet. App. 280 (Vet. App. 2001). · cites it 18× “The Board determined "that the veteran's claims are well grounded within the meaning of 38 U.S.C. § 5107 (a)," as then extant, but denied on the merits increased disability ratings for diplopia, sinusitis with headaches, and a laceration of the left upper eyelid.”

Rezi P. Forshey, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 284 F.3d 1335 (Fed. Cir. 2002). · cites it 10× “38 U.S.C. § 5107 (b) (West Supp.2001) (emphasis added).”

Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). · cites it 12× “Fagan argues that the Veterans Court incorrectly interpreted the benefit of the doubt doctrine codified at 38 U.S.C. § 5107 (b) and, as a result, improperly failed to consider statements in a medical examiner’s report as “evidence.”

Michael H. Jones v. Eric K. Shinseki, 23 Vet. App. 382 (Vet. App. 2010). · cites it 10× “Rather than providing a "nonspeculative determination of the degree of likelihood," however, the examiners concluded that it would be speculation to offer such an opinion. It should be noted that both McLendon and the applicable statutes require some assessment of probability,…”

Barney O. Padgett v. R. James Nicholson, 19 Vet. App. 133 (Vet. App. 2005). · cites it 11× “§ 7261 (b)(1) to "take due account" of the application of 38 U.S.C. § 5107 (b), the "benefit-of-the-doubt" rule in every case.”

Frances D'Aries v. James B. Peake, 22 Vet. App. 97 (Vet. App. 2008). · cites it 4× “See 38 U.S.C. § 5107 (b). The express language of the statute makes it clear that it applies only to the adjudicatory process of the Secretary (and by extension, the Board) in the context of weighing information and evidence.”

Capellan v. Peake, 539 F.3d 1373 (Fed. Cir. 2008). · cites it 14× “§ 5103A, and the benefit-of-the-doubt statute applicable to veterans' claims, 38 U.S.C. § 5107 (b). We conclude that the jurisdictional requirements of § 7292 are met.”

James R. Cook, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 318 F.3d 1334 (Fed. Cir. 2003). · cites it 4× “§ 5108 (reopening of a claim based on new and material evidence), and former 38 U.S.C. § 5107 (a) (recognizing the VA’s duty to assist the claimant in the development of his claims) — that indicates that Congress intended to allow additional exceptions to the finality of VA…”

Sarmiento v. Brown, 7 Vet. App. 80 (Vet. App. 1994). · cites it 13× “3007 [currently 38 U.S.C. § 5107 ], as the latter prefers only request[s] from authorized agencies such as your office.”

Wensch v. Principi, 15 Vet. App. 362 (Vet. App. 2001). · cites it 6× “The appellant is correct that, pursuant to 38 U.S.C. § 5107 (b), veterans enjoy the "benefit of the doubt" with regard to factual issues material to their claims if the evidence is in equipoise.”

Arthur Bernklau, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 291 F.3d 795 (Fed. Cir. 2002). · cites it 6× “6 Prior to the enactment of the VCAA, a version of this “duty to assist” had been codified in 38 U.S.C. § 5107 . 7 Another provision of the VCAA, section 4, 114 Stat.”

Allday v. Brown, 7 Vet. App. 517 (Vet. App. 1995). · cites it 5× “In the May 24,1993, BVA decision here on appeal, the Board found that the claims for entitlement to service connection for heart disease, CVA, and lupus were all well grounded under 38 U.S.C. § 5107 . R. at 18. With respect to reopening the claim for service connection for heart…”

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— 38 U.S.C. § 5107(a) — 2 cases

Clemment B. Epps, Claimant-Appellant v. Hershel W. Gober, Acting Sec'y of Vets. Affairs, 126 F.3d 1464 (Fed. Cir. 1997).

Barney O. Padgett v. Anthony J. Principi, 18 Vet. App. 223 (Vet. App. 2004).

— 38 U.S.C. § 5107(b) — 28 cases

Emilio R. Ortiz, Sr., Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 274 F.3d 1361 (Fed. Cir. 2001).

Petri v. United States, 104 Fed. Cl. 537 (Fed. Cl. 2012).

13-33 796 (Board of Vet. App. 2018).

10-19 236 (Board of Vet. App. 2016).

10-40 408 (Board of Vet. App. 2016).

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