U.S. Code » Title 38 » Part PART IV— GENERAL ADMINISTRATIVE PROVISIONS › Chapter CHAPTER 51— CLAIMS, EFFECTIVE DATES, AND PAYMENTS › Subchapter SUBCHAPTER I— CLAIMS

38 U.S.C. § 5109

Independent medical opinions

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(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.(Added Pub. L. 100–687, div. A, title I, § 103(a)(1), Nov. 18, 1988, 102 Stat. 4107, § 3009; renumbered § 5109, Pub. L. 102–40, title IV, § 402(b)(1), May 7, 1991, 105 Stat. 238; amended Pub. L. 102–83, § 4(a)(3), (4), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 404, 405; Pub. L. 115–55, § 2(j), Aug. 23, 2017, 131 Stat. 1109.)Editorial NotesAmendments

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 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.

Notes of Decisions
Cited in 20 cases (1 in the last 5 years), 1992–2024 · leading case: Barney O. Padgett v. R. James Nicholson, 19 Vet. App. 133 (Vet. App. 2005).
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Barney O. Padgett v. R. James Nicholson, 19 Vet. App. 133 (Vet. App. 2005). · cites it 4× “Considering these provisions in concert, the Court concludes that it would have been incongruous for Congress to have given discretionary authority to the Board to obtain a medical opinion but require initial review of that opinion by the RO, which already had an opportunity to…”
Shoffner v. Principi, 16 Vet. App. 208 (Vet. App. 2002). · cites it 4× “at 13; 38 U.S.C. § 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.”
Denise Jarrell v. R. James Nicholson, 20 Vet. App. 326 (Vet. App. 2006). · cites it 2× “See 38 U.S.C. § 5109 (e); Godfrey, 7 Vet.App.”
Charles L. Breedlove Brenda Breedlove v. Eric K. Shinseki, 24 Vet. App. 7 (Vet. App. 2010). · cites it 2× “§ 5108 ), to secure an independent medical opinion ( 38 U.S.C. § 5109 ). Chapter 51 also addresses effective dates of awards ( 38 U.”
Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009). “Cushman’s CUE arguments challenging the consideration of his altered medical record and the statutory construction and interpretation of the employability standard applied to his TDIU claim fall within the scope of this court’s review under 38 U.S.C. §§ 5109 and 7292. CUE is a…”
Thurber v. Brown, 5 Vet. App. 119 (Vet. App. 1993). “§ 7109 (West 1991); see also 38 U.S.C.A. § 5109 (West 1991) (similar statutory provision authorizing the Secretary, rather than the Board, to obtain an independent medical opinion).”
Earlee King v. Eric K. Shinseki, 23 Vet. App. 464 (Vet. App. 2010). · cites it 2× “See 38 U.S.C. § 5109 (CUE is collateral attack on final decision by RO or Board).”
James W. Stanley, Jr., Claimant-Appellant v. Anthony J. Principi, Sec'y of Vets. Affairs, 283 F.3d 1350 (Fed. Cir. 2002). “§ 5108 , or clear and unmistakable error, 38 U.S.C. § 5109 (A). We also hold that under 38 U.”
Vanerson v. West, 12 Vet. App. 254 (Vet. App. 1999). “” 38 U.S.C. § 5109 (a). Therefore, on remand, the Board must obtain adequate medical opinions with respect to the ascertainable time of inception of the seizure disorder and, if necessary, with respect to whether the condition increased in severity during service.”
Brewer v. West, 11 Vet. App. 228 (Vet. App. 1998). “105 (a) (now codified at 38 U.S.C. § 5109 (a))); Damrel v. Brown, 6 Vet.”
Winsett v. West, 11 Vet. App. 420 (Vet. App. 1998). “See also 38 U.S.C. § 5109 (similar statutory provision authorizing the Secretary, rather than the Board, to obtain an independent medical opinion).”
Perry v. Brown, 9 Vet. App. 2 (Vet. App. 1996). “901 (a), (d) (1995), or through a remand to the RO for it to obtain an IME opinion, see 38 U.S.C. § 5109 ; 38 C.F.R. § 3.328 (1995), or to provide for a VA examination of the veteran, see 38 C.”
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