§ 5101. Claims and forms

§ 5101. Claims and forms

(a)

(1)

(A) Except as provided in subparagraph (B), a specific claim in the form prescribed by the Secretary (or jointly with the Commissioner of Social Security, as prescribed by section 5105 of this title) must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary.

(B)

(i) The Secretary may pay benefits under chapters 13 and 15 and sections 2303, 2307, and 5121 of this title to a survivor of a veteran who has not filed a formal claim if the Secretary determines that the record contains sufficient evidence to establish the entitlement of the survivor to such benefits.

(ii) For purposes of this subparagraph and section 5110 of this title, the earlier of the following dates shall be treated as the date of the receipt of the survivor’s application for benefits described in clause (i):

(I) The date on which the survivor of a veteran (or the representative of such a survivor) notifies the Secretary of the death of the veteran through a death certificate or other relevant evidence that establishes entitlement to survivors’ benefits identified in clause (i).

(II) The head of any other department or agency of the Federal Government notifies the Secretary of the death of the veteran.

(iii) In notifying the Secretary of the death of a veteran as described in clause (ii)(I), the survivor (or the representative of such a survivor) may submit to the Secretary additional documents relating to such death without being required to file a formal claim.

(2) If an individual has not attained the age of 18 years, is mentally incompetent, or is physically unable to sign a form, a form filed under paragraph (1) for the individual may be signed by a court-appointed representative, a person who is responsible for the care of the individual, including a spouse or other relative, or an attorney in fact or agent authorized to act on behalf of the individual under a durable power of attorney. If the individual is in the care of an institution, the manager or principal officer of the institution may sign the form.

(b)

(1) A claim by a surviving spouse or child for compensation or dependency and indemnity compensation shall also be considered to be a claim for death pension and accrued benefits, and a claim by a surviving spouse or child for death pension shall be considered to be a claim for death compensation (or dependency and indemnity compensation) and accrued benefits.

(2) A claim by a parent for compensation or dependency and indemnity compensation shall also be considered to be a claim for accrued benefits.

(c)

(1) Any person who applies for, signs a form on behalf of an individual to apply for, or is in receipt of any compensation or pension benefit under laws administered by the Secretary shall, if requested by the Secretary, furnish the Secretary with the social security number of such person, or TIN in the case that the person is not an individual, and the social security number of any claimant, dependent, or beneficiary on whose behalf, or based upon whom, such person applies for or is in receipt of such benefit. A person is not required to furnish the Secretary with a social security number for any person to whom a social security number has not been assigned.

(2) The Secretary shall deny the application of or terminate the payment of compensation or pension to a person who fails to furnish the Secretary with a social security number or TIN required to be furnished pursuant to paragraph (1) of this subsection. The Secretary may thereafter reconsider the application or reinstate payment of compensation or pension, as the case may be, if such person furnishes the Secretary with such social security number or TIN.

(3) The costs of administering this subsection shall be paid for from amounts available to the Department of Veterans Affairs for the payment of compensation and pension.

(d)

(1) The Secretary shall publish in a central location on the internet website of the Department—

(A) the disability benefit questionnaire forms of the Department for the submittal of evidence from non-Department medical providers regarding a disability of a claimant, including any form or process that replaces any such disability benefit questionnaire form; and

(B) details about the process used by the Department for submittal of evidence described in subparagraph (A).

(2) Subject to section 6103 of this title, if the Secretary updates a form described in paragraph (1)(A), the Secretary shall—

(A) accept the previous version of the form filed by a claimant if—

(i) the claimant provided to the non-Department medical provider the previous version of the form before the date on which the updated version of the form was made available; and

(ii) the claimant files the previous version of the form during the one-year period following the date the form was completed by the non-Department medical provider;

(B) request from the claimant (or from a non-Department medical provider if the claimant has authorized the provider to share health information with the Secretary) any other information that the updated version of the form requires; and

(C) apply the laws and regulations required to adjudicate the claim as if the claimant filed the updated version of the form.

(3) The Secretary may waive any interagency approval process required to approve a modification to a disability benefit questionnaire form if such requirement only applies by reason of the forms being made public.

(e) In this section:

(1) The term “mentally incompetent” with respect to an individual means that the individual lacks the mental capacity—

(A) to provide substantially accurate information needed to complete a form; or

(B) to certify that the statements made on a form are true and complete.

(2) The term “TIN” has the meaning given the term in section 7701(a)(41) of the Internal Revenue Code of 1986.

(Pub. L. 85–857, Sept. 2, 1958, 72 Stat. 1225, § 3001; Pub. L. 97–295, § 4(95)(A), Oct. 12, 1982, 96 Stat. 1313; Pub. L. 99–576, title VII, § 701(61), Oct. 28, 1986, 100 Stat. 3296; Pub. L. 101–508, title VIII, § 8053(a), Nov. 5, 1990, 104 Stat. 1388–352; renumbered § 5101 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), (b)(1), (2)(E), Aug. 6, 1991, 105 Stat. 403–405; Pub. L. 108–183, title VII, § 708(c)(2), Dec. 16, 2003, 117 Stat. 2674; Pub. L. 112–154, title V, § 502(a), Aug. 6, 2012, 126 Stat. 1190; Pub. L. 114–315, title I, § 101(a), Dec. 16, 2016, 130 Stat. 1538; Pub. L. 116–315, title II, §§ 2006(a), 2202(b)(1)(E), Jan. 5, 2021, 134 Stat. 4975, 4985.)

Editorial Notes

References in Text

Section 7701(a)(41) of the Internal Revenue Code of 1986, referred to in subsec. (e)(2), is classified to section 7701(a)(41) of Title 26, Internal Revenue Code.

Prior Provisions

Prior section 5101 was renumbered section 8301 of this title.

Amendments

2021—Subsec. (a)(1)(B)(i). Pub. L. 116–315, § 2202(b)(1)(E), substituted “2303” for “2302”.

Subsecs. (d), (e). Pub. L. 116–315, § 2006(a), added subsec. (d) and redesignated former subsec. (d) as (e).

2016—Subsec. (a)(1). Pub. L. 114–315 designated existing provisions as subpar. (A), substituted “Except as provided in subparagraph (B), a specific” for “A specific”, and added subpar. (B).

2012—Subsec. (a). Pub. L. 112–154, § 502(a)(1), designated existing provisions as par. (1) and added par. (2).

Subsec. (c)(1). Pub. L. 112–154, § 502(a)(2)(A), inserted “, signs a form on behalf of an individual to apply for,” after “who applies for” and “, or TIN in the case that the person is not an individual,” after “of such person” and substituted “claimant, dependent,” for “dependent”.

Subsec. (c)(2). Pub. L. 112–154, § 502(a)(2)(B), inserted “or TIN” after “social security number” in two places.

Subsec. (d). Pub. L. 112–154, § 502(a)(3), added subsec. (d).

2003—Subsec. (a). Pub. L. 108–183 substituted “Commissioner of Social Security” for “Secretary of Health and Human Services”.

1991—Pub. L. 102–40, § 402(b)(1), renumbered section 3001 of this title as this section.

Subsec. (a). Pub. L. 102–83, § 4(b)(1), (2)(E), substituted “Secretary” for “Administrator” after “prescribed by the”.

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 “5105” for “3005”.

1990—Subsec. (c). Pub. L. 101–508 added subsec. (c).

1986—Subsec. (b)(1). Pub. L. 99–576 substituted “surviving spouse or” for “widow or” in two places.

1982—Subsec. (a). Pub. L. 97–295 substituted “Health and Human Services” for “Health, Education, and Welfare”.

Statutory Notes and Related Subsidiaries

Effective Date of 2021 Amendment

Amendment by section 2202(b)(1)(E) of Pub. L. 116–315 applicable to deaths that occur on or after the date that is two years after Jan. 5, 2021, see section 2202(d) of Pub. L. 116–315, set out as a note under section 113 of this title.

Effective Date of 2016 Amendment

Pub. L. 114–315, title I, § 101(c), Dec. 16, 2016, 130 Stat. 1540, provided that: “The amendments made by subsection (a) [amending this section] shall apply with respect to claims for benefits based on a death occurring on or after the date of the enactment of this Act [Dec. 16, 2016].”

Effective Date of 2012 Amendment

Pub. L. 112–154, title V, § 502(b), Aug. 6, 2012, 126 Stat. 1191, provided that: “The amendments made by subsection (a) [amending this section] shall apply with respect to claims filed on or after the date of the enactment of this Act [Aug. 6, 2012].”

Rule of Construction

Pub. L. 116–315, title II, § 2006(e), Jan. 5, 2021, 134 Stat. 4977, provided that: “Nothing in this section [amending this section and enacting provisions set out as notes below] or section 5101(d) of such title [title 38], as added by subsection (a), may be construed to require the Secretary [of Veterans Affairs] to develop any new information technology system or otherwise require the Secretary to make any significant changes to the internet website of the Department.”

Temporary Halt on Elimination of Medical Examiner Positions in Department of Veterans Affairs

Pub. L. 116–315, title II, § 2002(b), Jan. 5, 2021, 134 Stat. 4968, provided that: “The Secretary of Veterans Affairs shall temporarily suspend the efforts of the Secretary in effect on the day before the date of the enactment of this Act [Jan. 5, 2021] to eliminate medical examiner positions in the Department of Veterans Affairs until the number of individuals awaiting a medical examination with respect to medical disability of the individuals for benefits under laws administered by the Secretary that are carried out through the Under Secretary for Benefits is equal to or less than the number of such individuals who were awaiting such a medical examination with respect to such purposes on March 1, 2020.”

Initial Form

Pub. L. 116–315, title II, § 2006(c), Jan. 5, 2021, 134 Stat. 4976, provided that: “The Secretary of Veterans Affairs shall begin carrying out section 5101(d)(1) of such title [title 38], as added by subsection (a), by publishing, as described in such section, the form described in such section that was in effect on January 1, 2020.”

Alternate Process

Pub. L. 116–315, title II, § 2006(d), Jan. 5, 2021, 134 Stat. 4976, provided that: “(1) Assessment and report.—“(A) In general.—Subject to paragraph (2), not later than 180 days after the date of the enactment of this act [sic] [Jan. 5, 2021], the Secretary [of Veterans Affairs] shall—“(i) assess the feasibility and advisability of replacing disability benefit questionnaire forms that are used by non-Department medical providers to submit to the Secretary evidence regarding a disability of a claimant for benefits under laws administered by the Secretary, with another consistent process that considers evidence equally, whether provided by a Department or a non-Department medical provider; and “(ii) submit to Congress—“(I) a report on the findings of the Secretary with respect to the assessment conducted under clause (i); and “(II) if the report submitted under subclause (I) of this clause includes a finding that replacing the disability benefit questionnaire forms described in clause (i) as described in such clause is feasible and advisable, a plan to replace such forms as described in such clause. “(B) Collaboration required.—If, in carrying out the assessment required by clause (i) of subparagraph (A), the Secretary determines that replacing the disability benefit questionnaire forms described in such clause as described in such clause is feasible and advisable, the Secretary shall collaborate with, partner with, and consider the advice of veterans service organizations, and such other stakeholders as the Secretary considers appropriate, on the replacement forms and process for submitting such forms. “(2) Requirements.—The Secretary may only determine under paragraph (1)(A) that replacing the forms described in such paragraph is feasible and advisable if the Secretary certifies that—“(A) it is in the best interest of veterans to do so; “(B) the replacement process would include all the medical information needed to adjudicate a claim for benefits under laws administered by the Secretary; and “(C) the new process will ensure that all medical information provided will be considered equally, whether it is provided by a Department medical provider or a non-Department medical provider. “(3) Implementation.—“(A) In general.—Subject to subparagraph (B), if the Secretary determines under paragraph (1)(A) that replacing the forms as described in such paragraph is feasible and advisable, the Secretary shall, not later than two years after the date on which the Secretary submits the report under paragraph (1)(B)(i)—“(i) replace the forms as described in paragraph (1)(A); “(ii) publish such replacement pursuant to subparagraph (A) of section 5101(d)(1), as added by subsection (a)(2); and “(iii) update the details under subparagraph (B) of such section. “(B) Reports by inspector general of the department of veterans affairs.—If the Secretary replaces the forms under subparagraph (A), the Inspector General of the Department of Veterans Affairs shall, not later than one year after the date that the Secretary replaces such forms and not less frequently than once each year thereafter until the date that is three years after the date on which the Secretary replaces such forms, submit to Congress a report on the process that replaced such forms that ascertains whether the process properly protects veterans. “(4) Limitation.—The Secretary may not discontinue the use of the disability benefit questionnaire forms described in paragraph (1)(A) until a replacement form or process is implemented.”

Overpayments of Pension to Veterans Receiving Pension From the Department of Veterans Affairs