Title 38
SECTION 3.328
3.328 lndependent medical opinions.
§ 3.328 lndependent medical opinions.(a) General. When warranted by the medical complexity or controversy involved in a pending claim, an advisory medical opinion may be obtained from one or more medical experts who are not employees of VA. Opinions shall be obtained from recognized medical schools, universities, clinics or medical institutions with which arrangements for such opinions have been made, and an appropriate official of the institution shall select the individual expert(s) to render an opinion.
(b) Requests. A request for an independent medical opinion in conjunction with a claim pending before VA may be initiated by the office having jurisdiction over the claim, by the claimant, or by his or her duly appointed representative. The request must be submitted in writing and must set forth in detail the reasons why the opinion is necessary. All such requests shall be submitted through the Veterans Service Center Manager or Pension Management Center Manager of the office having jurisdiction over the claim, and those requests which in the judgment of the Veterans Service Center Manager or Pension Management Center Manager merit consideration shall be referred to the Compensation Service or the Pension and Fiduciary Service for approval.
(c) Approval. (1) Requests for independent medical opinions shall be approved when one of the following conditions is met:
(i) The director of each Service from which a benefit is sought, or his or her designee, determines that the issue under consideration poses a medical problem of such complexity or controversy as to justify solicitation of an independent medical opinion; or
(ii) The independent medical opinion is required to fulfill the instructions contained in a remand order from the Board of Veterans' Appeals.
(2) A determination that an independent medical opinion is not warranted may be contested only as part of an appeal to the Board of Veterans' Appeals on the merits of the decision rendered on the primary issue by VA.
(d) Notification. The Compensation Service or the Pension and Fiduciary Service shall notify the claimant when the request for an independent medical opinion has been approved with regard to his or her claim and shall furnish the claimant with a copy of the opinion when it is received. If, in the judgment of the Secretary, disclosure of the independent medical opinion would be harmful to the physical or mental health of the claimant, disclosure shall be subject to the special procedures set forth in § 1.577 of this chapter.
(Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. 552a(f)(3)) [55 FR 18602, May 3, 1990, as amended at 79 FR 2100, Jan. 13, 2014; 84 FR 170, Jan. 18, 2019]