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Updated Jan 16, 2025

In This Section

  
This section contains the following topics:
 

1.  Assisting With Federal Records Requests

 

Introduction

  
This topic contains information about assisting with requesting Federal records, including

Change Date

  
February 19, 2019

III.i.2.C.1.a.  VA’s Duty to Obtain Federal Records

  
The submission of a substantially complete initial or supplemental claim triggers the Department of Veterans Affairs’ (VA’s) duty to assist procedures which include a duty to make reasonable efforts to obtain relevant records in the custody of a Federal department or agency.
 
References:  For more information on

III.i.2.C.1.b.  Definition:  Federal Records

  
Federal records are any documents in the custody of a Federal department or agency.  Federal records include but are not limited to
  • service treatment records (STRs)
  • other service department records (such as personnel records, line-of-duty determinations, inpatient treatment records or behavioral health records) that are not included with the STRs
  • VA medical and other records (including Vet Center records and authorized VA medical treatment or examinations at a non-VA facility)
  • Social Security Administration (SSA) records
  • Public Health Service records, and
  • Department of Labor records.
References:  For more information on development procedures for

III.i.2.C.1.c.  Definition: Reasonable Efforts to Obtain Federal Records

  
Reasonable efforts to obtain relevant Federal records means VA must continue attempts to obtain the records until
  • records are obtained, or
  • it is reasonably certain that
    • the records do not exist, or
    • further efforts by VA to obtain the records would be futile.
References:  For more information on

III.i.2.C.1.d.  Concluding Federal Records Do Not Exist or Further Efforts Would be Futile

  
Determine on a case-by-case basis whether the requested Federal records do not exist or further attempts to obtain records would be futile based on
Important:  DD Form 2963, Service Treatment Record (STR) Transfer or Certification is a certification of the completeness of all available STRs at discharge from service.  Treat this, or a predecessor certification letter, as a statement from the records custodian that it is reasonably certain that additional STRs do not exist and further attempts to obtain additional records would be futile except as provided in M21-1, Part III, Subpart ii, 2.A.2.c.
 
References:  For more information on

III.i.2.C.1.e. Claimant Cooperation With the Duty to Assist in Obtaining Federal Records

  
The claimant must cooperate with VA’s attempts to obtain Federal records by providing
  • information, when requested by VA, to identify and locate existing records including
    • the department or agency that is the custodian of the records
    • the approximate time frame covered by the records, and
    • for treatment records, a general description of the condition for which the treatment was provided
  • information sufficient for the records custodian to conduct a search of records when records are requested to corroborate a stressor-event in service, and
  • authorization to release existing records when requested by the department or agency custodian in the form acceptable to the custodian.
References:  For more information on
 

 2.  Assisting With Non-Federal or Private Records Requests

 

Introduction

  
This topic contains information on providing assistance with obtaining non-Federal or private records, including

Change Date

  
February 19, 2019

III.i.2.C.2.a.  VA’s Duty to Obtain Relevant Non-Federal or Private Records

  
Upon receipt of a substantially complete initial or supplemental claim, VA must make reasonable efforts to assist a claimant in obtaining relevant non-Federal or private records from all sources that the claimant adequately identifies.
 
When a claimant or the claimant’s representative adequately identifies the existence of relevant records, VA has a duty to obtain those records by requesting them or by sending the claimant the appropriate VA forms to allow VA to request the relevant records at any point during the claims process.
 
When VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and/or VA Form 21-4142a, General Release from Medical Provider Information to the Department of Veterans Affairs (VA) is not of record but is necessary to make a proper request for the records identified by the claimant, follow the procedures in M21-1, Part III, Subpart ii, 3.1.d to request the necessary release forms.
 
Note:  VA  has a duty to return for clarification unclear or insufficient private or VA medical records if it appears that a request for clarification could provide relevant information necessary to properly decide a claim.  If VA does not obtain clarification, then it must explain why such clarification is not necessary.
 
References:  For more information on

III.i.2.C.2.b.  Definition:  Reasonable Efforts to Obtain Relevant Private Records

  
Reasonable efforts to obtain relevant private records that are not in the custody of a Federal department or agency include making
  • an initial request for such evidence, and
  • at least one follow-up request if no response is received from the custodian of the records unless a response to the initial request indicates that
    • the records do not exist, or
    • a follow-up request would be futile.
If VA receives information showing that subsequent requests to a different custodian of the records could result in obtaining the records sought, then reasonable efforts include making
  • an initial request to the new source, and
  • at least one follow-up request to the new source if the records are not received.
References:  For more information on

III.i.2.C.2.c.  Definition:  Adequate Identification of Private Records

  
Adequate identification of private records entails a claimant and/or the claimant’s representative identifying at least the following information to VA:
  • the existence of relevant records, and
  • the provider or source of the medical treatment for which the records exist.
The records must be identified in claims-related evidence or correspondence originating from the claimant or the claimant’s representative.  Examples of acceptable means of identifying records include, but are not limited to,
  • a claims form
  • statements made in support of a claim, or
  • a Compensation and Pension examination report that transcribes a Veteran’s report of the existence of private records.

III.i.2.C.2.d.  Assisting in Obtaining Third Party Records

  
VA is obligated to make reasonable efforts to obtain records pertaining to another individual if
  • those records are
    • adequately identified by the claimant
    • relevant to the claim, and
    • potentially helpful in substantiating the claim, and
  • VA would be authorized to disclose the relevant portions of such records to the Veteran under the Privacy Act and 38 U.S.C. 5701 and 38 U.S.C. 7332.
However, in certain circumstances, VA may conclude that reasonable efforts do not include requesting third-party records even when adequately identified by a claimant.  A case-by-case determination should be made to decide whether an attempt to obtain such records is within the scope of VA’s duty to exert reasonable efforts to obtain the records of another individual.
 
An adjudicator may determine that reasonable efforts do not include a request of third-party records when the following factors weigh unfavorably:
  • the third party’s interest in their records
  • the likelihood that the request would result in consent to disclose the records to the claimant
  • the potential for such a request to generate conflict or otherwise adversely affect the safety, health, or rights of either the claimant or the third party, and
  • whether there is a basis for believing that records of the type referenced by the claimant exist, as distinguished from mere speculation that such records may exist.
Example 1:  A determination that reasonable efforts do not require seeking a third party’s consent to disclose their records to the claimant would be most strongly justified in a case where the interests of the third party are adverse to the claimant’s interest, such as where the claimant alleges that the third party assaulted the claimant or engaged in other improper or unlawful behavior.  In such cases, the third-party’s interest in maintaining the confidentiality of their records would be high, and the likelihood that the third party would consent to disclosure of their records would be quite low.  Further, asking the third party to allow disclosure to the claimant may create some risk of conflict or other adverse effects.
 
Example 2:  Where the interests of the claimant and the third party are not adverse, there ordinarily would be a stronger basis for a finding that VA’s reasonable efforts may include asking the third party to consent to disclosure of their records to the claimant.  For example, if a claimant who is claiming service connection for PTSD alleges that the records of another Veteran will verify his exposure to a particular stressor experienced by both service members, then reasonable efforts should be made to obtain the records given that the third party does not have an adverse interest, it is plausible that the third party would consent, resulting conflict is unlikely, and there is a basis for believing that the records exist.
 
Important:  VA adjudicators generally may not consider documents that cannot be disclosed to the claimant.
 
Note:  VA’s duty to assist generally would not require VA to obtain a court order to secure authority for third-party disclosure.  Obtaining a court order related to a pending benefits claim would typically be beyond the scope of the “reasonable efforts” VA must undertake to assist a claimant in obtaining evidence necessary to substantiate a claim as contemplated by 38 U.S.C. 5103A(a).
 
Reference:  For more information on seeking records pertaining to an individual other than the claimant, see VAOPGCPREC 5-2014.
 

3.  Notification of Inability to Obtain Records

Introduction

  
This topic contains general information on VA’s obligation to notify the claimant of the inability to obtain records, including notification requirements of inability to obtain

Change Date

  
July 28, 2022

III.i.2.C.3.a.  Notification Requirements of Inability to Obtain Private Records

  
VA has a duty under 38 U.S.C. 5103A(b) and 38 CFR 3.159(e) to notify claimants of the inability to obtain any relevant private records that are identified by the claimant and necessary to substantiate a claim.
 
If VA has made reasonable efforts to obtain relevant private records identified by the claimant, and such records are not obtained, decision makers must ensure that claimants receive the appropriate notification.  The notification must
  • identify the records that were not obtained
  • briefly explain the efforts made to obtain the records
  • describe any further action that will be taken with respect to the claim including follow-up requests and that VA is processing the claim based on the evidence of record, and
  • indicate that the claimant is ultimately responsible for providing the evidence.
Note:  The required notification of inability to obtain private records may also be sent when making a final attempt to obtain the records.
 
References:  For more information on

III.i.2.C.3.b.  Notification  Requirements of Inability to Obtain Federal Records

  
VA has the duty under 38 CFR 3.159(e) to notify claimants of the inability to obtain relevant Federal records that are necessary to substantiate a claim.
 
If, after continued efforts to obtain Federal records, it is reasonably certain that such records do not exist or further efforts to obtain them would be futile, VA must provide the claimant with a final notification letter as discussed in M21-1, Part III, Subpart ii, 1.A.1.g.
 
The notification must contain the following information:
  • the identity of the Federal records that were not obtained
  • an explanation of the efforts made to obtain the records
  • a description of any further action that will be taken with respect to the claim including a notice that VA will process the claim based on the evidence of record unless the claimant furnishes such records, and
  • an indication that the claimant is ultimately responsible for providing the evidence.
Important:  The format of the final notification letter may be determined based on the individual case, as dictated by M21-1, Part III, Subpart ii, 1.A.1.e.
 
References:  For more information on