38 U.S.C. § 5108

Supplemental claims

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(a)In General.—If new and relevant evidence is presented or secured with respect to a supplemental claim, the Secretary shall readjudicate the claim taking into consideration all of the evidence of record.(b)Duty to Assist.—(1) If a claimant, in connection with a supplemental claim, reasonably identifies existing records, whether or not in the custody of a Federal department or agency, the Secretary shall assist the claimant in obtaining the records in accordance with section 5103A of this title.(2) Assistance under paragraph (1) shall not be predicated upon a finding that new and relevant evidence has been presented or secured.(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4107, § 3008; renumbered § 5108, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; Pub. L. 102–83, § 4(b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 115–55, § 2(i)(1), Aug. 23, 2017, 131 Stat. 1109.)Editorial NotesAmendments

2017—Pub. L. 115–55 amended section generally. Prior to amendment, text read as follows: “If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.”

1991—Pub. L. 102–40 renumbered section 3008 of this title as this section.

Pub. L. 102–83 substituted “Secretary” for “Administrator”.

Statutory Notes and Related SubsidiariesEffective Date of 2017 Amendment

Amendment 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.

Construction of 2017 Amendment

Pub. L. 115–55, § 2(i)(2), Aug. 23, 2017, 131 Stat. 1109, provided that: “Section 5108 of such title [38 U.S.C. 5108], as amended by paragraph (1), shall not be construed to impose a higher evidentiary threshold than the new and material evidence standard that was in effect pursuant to such section on the day before the date of the enactment of this Act [Aug. 23, 2017].”

Notes of Decisions

Cited in 739 cases (47 in the last 5 years), 1991–2026 · leading case: Trilles v. West, 13 Vet. App. 314 (Vet. App. 2000).

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Trilles v. West, 13 Vet. App. 314 (Vet. App. 2000). · cites it 36× “Applying a new-and-material-evidence standard under 38 U.S.C. § 5108 , the Court, on de novo review, also found that the evidence presented was not new and material and held that the Board did not err by not reopening the appellant's claim.”

William Shade v. Eric K. Shinseki, 24 Vet. App. 110 (Vet. App. 2010). · cites it 10× “156(a) did not comport with the requirements of 38 U.S.C. § 5108 , the statute requiring VA to reopen a previously denied claim when new and material evidence has been presented.”

Patrick F. D’AMICO, Claimant-Appellant, v. Togo D. WEST, Jr., Sec'y of Vets. Affairs, Respondent-Appellee, 209 F.3d 1322 (Fed. Cir. 2000). · cites it 12× “He also argued that the evidence of his discharge upgrade, dated in 1992, was new and material evidence that warranted reopening of his 1978 claim under 38 U.S.C. § 5108 (1994). The Board determined that the 1979 decision had become final because the record showed that notice of…”

Sarmiento v. Brown, 7 Vet. App. 80 (Vet. App. 1994). · cites it 10× “Similarly, the Board determined that appellant had submitted new but not material evidence, and thus denied reopening of appellant’s claim pursuant to 38 U.S.C. § 5108 . R. at 7-8. II. In Aguilar v.”

Akers v. Shinseki, 673 F.3d 1352 (Fed. Cir. 2012). · cites it 16× “According to Akers, neither the regulation, nor the statute which it implements, 38 U.S.C. § 5108 , requires that new and material evidence actually accompany a claim to reopen.”

James R. Cook, Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 318 F.3d 1334 (Fed. Cir. 2003). · cites it 3× “First, pursuant to 38 U.S.C. § 5108 , the Secretary must reopen a claim “[i]f new and material evidence [regarding the claim] is presented or secured.”

Russell v. Principi, 3 Vet. App. 310 (Vet. App. 1992). · cites it 4× “38 U.S.C. § 5108 (formerly § 3008). See also Manio v.”

Brian E. Routen, Claimant-Appellant v. Togo D. West, Sec'y of Vets. Affairs, 142 F.3d 1434 (Fed. Cir. 1998). · cites it 7× “See 38 U.S.C. § 5108 (1994); 38 C.F.R. § 3.156 .”

Woehlaert v. Nicholson, 21 Vet. App. 456 (Vet. App. 2007). · cites it 3× “38 U.S.C. §§ 5108 , 7105(c); 38 C.F.R. § 3.”

Larry A. Pelegrini v. Anthony J. Principi, 18 Vet. App. 112 (Vet. App. 2004). · cites it 2× “See 38 U.S.C. § 5108 ; 38 C.F.R. § 3.156 (a) (2003).”

Crispin B. Untalan v. R. James Nicholson, 20 Vet. App. 467 (Vet. App. 2006). · cites it 14× “Untalan argues that the Board erred, as a factual matter and as a matter of law, in finding that his testimony regarding his mens rea at the time that he rendered assistance to the enemy did not constitute new and material evidence pursuant to 38 U.S.C. § 5108 . The Secretary…”

Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). · cites it 4× “Moreover, the Board found that Boggs had failed to present new and material evidence to support his claim, which pursuant to 38 U.S.C. § 5108 and 38 C.F.R. § 3.156 , is required to reopen a claim that has been denied by the Board.”

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