Sorry for the mess!

The site is undergoing a massive update. All the content on the site still works but things just might look a little messy and disorganized. Most of the upgrades will probably be don by the end of the month. Thank you for your understanding!

Updated Dec 04, 2024

In This Section

  
This section contains the topic “Duty to Provide a Medical Examination or Opinion.”

1. Duty to Provide a Medical Examination or Opinion

Introduction

  
This topic contains information on the obligation of the Department of Veterans Affairs (VA) to assist a claimant by obtaining a medical opinion or examination, including

Change Date

  
December 4, 2024

IV.i.1.A.1.a.  Purpose of Obtaining Medical Examinations and Opinions

  
The submission of a substantially complete claim triggers the duty of the Department of Veterans Affairs (VA) to assist a claimant in obtaining a medical examination or opinion when necessary to substantiate the claim.
 
Exception:  An examination or opinion is not part of the duty to assist in a supplemental claim unless new and relevant evidence is presented or secured.
 
The purpose is to obtain medical evidence relevant to establishing entitlement to benefits, when the evidence of record is not sufficient to make a decision, such as information about
  • diagnosis
  • onset, or
  • etiology.
References:  For more information on

IV.i.1.A.1.b.  Regulatory Standard for Finding an Examination or Medical Opinion Necessary

  
The regulatory criteria for finding an examination or medical opinion necessary under the duty to assist are in 38 CFR 3.159(c)(4).
 
A medical opinion or examination is necessary when there is not sufficient medical evidence of record to make a decision on the claim, and
  • there is competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability
  • the evidence establishes that the Veteran
  • the evidence indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability.
Important:  An examination and/or opinion is not warranted until all three elements described above are present in the evidence.
 
Notes:
  • The bulleted criteria above primarily contemplate claims for compensation.
  • M21-1, Part IV, Subpart i, 1.B provides guidance on how the elements of the standard are applied.
  • For pension claims that require a permanent and total (P&T) disability determination, a medical examination is necessary for all claims when there is insufficient medical evidence available to decide the claim.
References:  For more information on

IV.i.1.A.1.c. Reviewing Evidence Before Determining an Examination or Opinion Is Necessary

  
An examination or opinion is only necessary under 38 CFR 3.159(c)(4) when there is not sufficient medical evidence of record to make a decision on the claim.
 
38 CFR 3.326 similarly provides that an examination is authorized when medical evidence accompanying the claim is not adequate for rating purposes.  To illustrate the principle, the regulation adds that any hospital report, any government or private institution examination report, or statement from a private physician can be used to decide a claim without an examination if adequate for rating purposes.
 
These provisions together mean that a review of the available medical evidence is required before deciding whether an examination or opinion is necessary.
 
This does not necessarily mean that all development must be completed before making the determination.  However, if practical, delay making it until other relevant development is complete because the development may affect whether an examination or opinion is necessary.
 
Important:  Apply this block in conjunction with M21-1, Part IV, Subpart i, 1.A.1.d and e (timing of examination or opinion determinations when additional development is required and documenting the status of examination review) as well as all pertinent regulations and M21-1 content.
 
References:  For more information on

IV.i.1.A.1.d.  Timing of Examination or Opinion Determinations When Other Development Is Required

  
The timing for determining that an exam or opinion is necessary under the duty to assist and then requesting an examination or opinion may vary case-by-case and can depend on other required development.
 
As a general rule, apply the following principles unless there is specific development guidance to the contrary that is applicable to a particular type of claim:
  • To the extent practical, wait to determine whether an examination or opinion is necessary under 38 CFR 3.159(c)(4) until after the development of all other relevant evidence.  If sufficient medical evidence is obtained that is adequate for rating purposes, it could make an examination unnecessary.
  • Wait for completion of additional relevant development before inputting an examination or opinion request under M21-1, Part IV, Subpart i, 2.A, when the evidence requested is likely to be important to ensure that the examination or opinion are adequately informed or could enable an examiner to utilize the Acceptable Clinical Evidence process as an alternative to an in-person physical examination.
Important:
  • Service Treatment Records (STRs) must be of record, unless after all required efforts they are unavailable, prior to requesting audiological examination for service connection (SC) for hearing loss because the results of any in-service audiological testing, and potentially other records entries, are important to the audiologist’s assessment on etiology of hearing loss.
  • In some cases, an examination review may indicate that examination for some claimed conditions is necessary.  However, development may be pending relevant to the examination review for other claimed conditions.  When it is clear that the pending development will be imminently completed (within a week’s time or less), and in judgment of the individual developing the claim it would be to the Veteran’s advantage to wait for the development to be completed (for example, to avoid multiple scheduled examination appointments), it is appropriate to wait to enter the examination request.
  • For foreign examinations, schedule all necessary exams at one time after needed development has been completed.
  • For claims for increase, it is generally not necessary to delay scheduling of an examination while waiting for completion of additional development.  However, waiting for completion of pending development may be warranted if
    • the pending development is directly relevant to the contention for which an increased evaluation is claimed and has the potential to make an examination unnecessary (for example, a surgical report), or
    • pending development relevant to other contentions is expected to be completed soon and waiting is deemed appropriate and to the Veteran’s advantage, as discussed above.
Situation:  A Vietnam Veteran with combat service claims SC for hearing loss, posttraumatic stress disorder (PTSD) with symptoms of sleep impairment, back pain due to a back injury in service, and gastroesophageal reflux disease (GERD) with reflux and stomach upset due to medication taken for his back condition.  STRs are not yet of record but development has been initiated.  Combat service as an infantryman is shown on the DD Form 214, Certificate of Uniformed Service.  Development has been initiated for private treatment records pertaining to PTSD and the back condition.
 
Result:
  • The evidentiary standards for requesting the PTSD and hearing loss examinations have been satisfied on the basis of the lay report of symptoms, combat service, and a plausible nexus.  Request the PTSD examination, but wait until the STRs are received before requesting the audio examination.  Although the private treatment records pertain to PTSD, the examination should be requested at the earliest point possible.
  • Update the permanent claim-level notes, as directed at M21-1, Part IV, Subpart i, 1.A.1.e, to reflect that the examination review is partially complete, reviews for back pain and GERD with reflux and stomach upset need to be conducted after receipt of STRs, and STRs are required before the audiological examination may be requested.  Although private treatment records pertain to the back claim, they are not expected to be specifically relevant to the determination as to whether examination is needed since the Veteran’s lay report of symptoms satisfies the Element 1 standard for evidence of a current disability.  Although the private records are relevant to the claimed issue and the development must be completed, the determination as to whether examination is necessary is not contingent on receipt of the private records unless there is an indication that they may include evidence of service incurrence or development of a chronic disability listed in 38 CFR 3.309(a) during the appropriate presumptive period, which is generally not the case.
Note:  Apply this block in conjunction with M21-1, Part IV, Subpart i, 1.A.1.c and e (reviewing evidence before determining an examination is necessary and documenting the status of examination review) as well as all other pertinent regulations and M21-1 content.
 
References:  For more information on

IV.i.1.A.1.e.  Documenting the Status of Examination Review

  
Fully document the status of examination review and associated development in the claims folder.
 
Follow the steps in the table below to accomplish documentation of the status of examination review during the development process.
 
Step
Action
1
At the time of initial development, insert a permanent claim-level note in the Veterans Benefits Management System (VBMS), entering Exam Review at the beginning of the note.
 
Annotate the status of examination review either
  • in the note, preferably, or
  • on a separate document filed in the claims folder in the situation where a large number of contentions are claimed or the examination review is extensive or complicated
    • using Worksheet:  Compensation Worksheet in the VBMS CATEGORY TYPE field, and
    • noting the precise location of the examination review document in the permanent claim-level note.
Include the information below when annotating the status of the examination review.
  • Indicate whether it is
    • not yet performed
    • partially complete, or
    • complete for all issues.
  • If the review is complete for an issue and an examination is not warranted, include a brief explanation for each contention not warranting examination to reflect
    • which evidentiary element(s) required in 38 CFR 3.159(c)(4) was/were absent, or
    • that an examination is unnecessary because the evidence of record is sufficient to make a decision on the claim.
Example:  For a lack of evidence of
  • a current condition, state no current condition
  • an in-service-event, state STRs negative, and
  • an indication of an association, state no nexus.
If the exam review is
  • not yet performed or partially complete, go to Step 2, or
  • complete for all issues, no further action is required.
Important:  All notes pertaining to the status of examination review should begin with Exam Review.  This text can then be entered into the search function to locate all notes pertaining to examination review.
2
When an exam review is not yet performed or partially complete
  • indicate in the permanent claim-level note what outstanding development is required before examination review may be conducted for the remaining issues
  • establish a tracked item using the applicable option (either Exam Review – Not Performed or Exam Review – Partially Complete) from the COMPMGT menu with a suspense date corresponding with the pending development, and
  • go to Step 3.
3
During subsequent stages of the development process
  • add a permanent claim-level note to accurately reflect the status of any outstanding contentions requiring examination review when the status of the development and/or examination review changes
  • maintain the applicable Exam Review tracked item, and update it as necessary, until examination review has been completed for all contentions to prevent the claim from reverting to ready for decision status before examination review is complete, and
  • when all examination reviews are complete, go to Step 4.
4
  • Close the Exam Review tracked item.
  • Update the permanent claim-level note to reflect that examination review is complete.
Note:  Ensure that if the examination review reveals an examination is required, the appropriate tracked items for requested examinations have been added before closing the Exam Review tracked item, to prevent the claim from being automatically routed as ready for decision.  Tracked items for requested examinations are system-generated when the examination request is properly submitted and accepted in VBMS.
 
Examples of Exam Review Notes:
  • Exam Review partially complete.  Exams requested for PTSD and hearing loss.  Exam review incomplete for back and knee pending receipt of PMRs from Dr. Jones, but STRs negative.  Exam not needed for GERD—STRs negative.
  • Exam Review not yet performed, as STRs required to determine need for exam for all contentions.  Development for STRs and PMRs pending.
 
Notes:
  • Apply this block in conjunction with M21-1, Part IV, Subpart i, 1.A.1.c and d (reviewing evidence before determining an examination is necessary, and timing of examination determinations when other development is required) as well as all other pertinent regulations and M21-1 content.
  • Exercise caution in making a Step 1 (initial development) determination that the status of examination review is complete for all contentions and no examination is warranted when subsequent development is required.  If subsequent development changes that determination, update the permanent note, change the review to partially complete, and proceed through the remainder of the table.
References:  For more information on