What Does It Mean That VA Should Be “Non-Adversarial”?

CCK Law: Our Vital Role in Veterans Law

The VA disability claims system is legally non-adversarial, which means VA must work with a veteran to develop and support a claim rather than work to defeat it. Most people expect a courtroom fight, but the VA disability compensation process is intended to be cooperative and veteran-friendly; when VA violates that duty, veterans can appeal.

The main exception comes at the federal court stage, where the process turns adversarial.

In this article:

• VA has a legal “duty to assist” a veteran in gathering evidence.
• The “benefit of the doubt” rule favors the veteran when the evidence is balanced.
• VA must apply a low, veteran-friendly standard of proof.
• The process becomes adversarial only at the Court of Appeals for Veterans Claims.

Watch CCK Law Partner and former VA Veterans Law Judge Brad Hennings lead a discussion with other CCK attorneys about VA’s duty to be “non-adversarial” and how veterans can protect their rights:

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What Does “Non-Adversarial” Mean in the VA Claims Process?

A non-adversarial system is one in which VA helps the veteran prove a claim instead of opposing it. In a traditional adversarial system, two opposing sides argue before a neutral judge or jury, and that neutral party decides who wins. The VA claims process is different. VA is not meant to be a courtroom opponent. By law, VA is supposed to assist the veteran and decide claims in a veteran-friendly way.

Courts have described this design for decades.

• The U.S. Supreme Court has called VA proceedings “informal and nonadversarial.” Henderson v. Shinseki, 562 U.S. 428, 440 (2011).
• The Supreme Court has recognized that Congress placed “a thumb on the scale in the veteran’s favor” throughout VA review, and interpretive doubt in veterans laws is generally resolved in the veteran’s favor. See Brown v. Gardner, 513 U.S. 115 (1994)
• The U.S. Court of Appeals for the Federal Circuit has described the veterans benefits system as “strongly and uniquely pro-claimant.” Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).

How Does VA’s Non-Adversarial System Create a “Duty to Assist” Veterans?

VA’s duty to assist requires VA to make “reasonable efforts” (see below) to gather the evidence needed to support a veteran’s claim. This duty comes from the Veterans Claims Assistance Act of 2000 and is codified at 38 USC § 5103A and 38 CFR § 3.159.

In practice, VA must try to obtain the veteran’s service personnel and medical records, VA treatment records, and relevant private medical records. VA generally gathers records once it is told they exist, so a veteran should identify where the records are located.

What Does “Reasonable Effort” Mean?

A “reasonable effort” usually means VA must make more than one attempt to obtain records it does not already hold. For private medical records, VA generally makes at least two attempts, unless it is clear that the records do not exist or cannot be obtained. See 38 CFR § 3.159(c)(1). If VA cannot obtain the records, it must notify the veteran and give the veteran a chance to submit them.

When Must VA Provide a C&P Exam?

VA must provide a Compensation and Pension (C&P) exam when the evidence meets a low, four-part threshold. A C&P exam is a medical examination VA orders to assess a claimed disability, and it is part of the duty to assist.

Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), VA must provide an exam when the record shows:

• competent evidence of a current disability or ongoing symptoms;
• evidence of an in-service event, injury, or disease;
• an indication that the disability may be related to service; and
• insufficient evidence for VA to decide the claim.

The third element is a low threshold. It requires only an “indication” that a disability “may be” connected to service. If VA declines to order an exam, a veteran can request one and argue that the threshold is met.

What Is VA’s Duty to Assist at a Board Hearing?

At a hearing before the Board of Veterans’ Appeals (BVA), the Veterans Law Judge has a duty to help the veteran understand the case. The judge must explain the issues involved and suggest evidence the veteran could submit to support the claim. This duty reflects the non-adversarial nature of the administrative process. [ATTORNEY REVIEW: confirm current basis and scope of the hearing-officer duty under AMA dockets — historically tied to 38 CFR § 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488 (2010).]

How Does the “Benefit of the Doubt” Rule Work?

VA’s benefit of the doubt rule requires VA to decide in the veteran’s favor when the positive and negative evidence are roughly equal. This balance is called “equipoise.” The rule is set out at 38 USC § 5107(b) and 38 CFR § 3.102.

What Is VA’s Standard of Proof?

VA uses an “at least as likely as not” standard, which means VA should grant a claim when the chance that a disability is connected to service is 50 percent or greater. For example, if VA finds at least a 50 percent likelihood that a veteran’s depression is related to service, VA should grant service connection. If the likelihood is below 50 percent, VA will find the condition “less likely than not” related to service and deny the claim.

This standard is lower than standards elsewhere in U.S. law. Criminal cases use “beyond a reasonable doubt,” and many civil cases use “clear and convincing evidence.” Both are higher than VA’s roughly 50-50 standard.

Are Favorable Findings Binding on VA? Can VA Change Its Mind About Evidence at a Later Date?

When VA makes a finding favorable to the veteran, that finding is generally binding at later stages of the same claim. Under the current system, this rule appears at 38 USC § 5104A. For example, if VA concedes that a veteran served in a location tied to herbicide exposure, it cannot later reverse that concession in the same claim.

What Is the “Attitude of Rating Officers” Rule?

The “attitude of rating officers” regulation keeps VA employees from letting personal feelings affect a decision. Under 38 CFR § 4.23, a rating officer must not let an antagonistic or even abusive attitude by a claimant influence how they handle a claim. The rule is one more reflection of the system’s veteran-friendly design.

What Happened to “Reopening” a Claim With New and Material Evidence?

VA replaced the old “reopening” process on February 19, 2019, when the Appeals Modernization Act (AMA) took effect. A veteran can no longer “reopen” a finally decided claim with “new and material evidence.” Instead, a veteran files a Supplemental Claim with new and relevant evidence. See 38 CFR § 3.2501; the Supplemental Claim form is VA Form 20-0995.

VA has no deadline for filing a claim in the first place, but a decision becomes final once the one-year window to challenge it closes. Even after a decision is final, VA does not permanently close the claim. A veteran can file a Supplemental Claim with new and relevant evidence. “New” means evidence VA did not already have, and “relevant” means evidence that tends to prove or disprove an issue in the claim. This standard is lower than the old “new and material” standard.

Timing matters for back pay. If a veteran files the Supplemental Claim within one year of the decision, they can preserve the earlier effective date. VA generally allows filing later, but the veteran can lose retroactive benefits.

When Does the VA Claims Process Become Adversarial?

The VA process becomes adversarial when a veteran appeals to federal court. From the regional office through the Board of Veterans’ Appeals, the system stays non-adversarial. But once a veteran appeals a Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC), VA is represented by its own attorneys and argues against the veteran’s position.

A veteran has 120 days from a Board decision to appeal to the CAVC. See 38 USC § 7266. Because this stage is adversarial and technical, veterans often choose to work with a VA-accredited representative who has court experience.

Does VA Always Meet Its Duty to Be Non-Adversarial?

Not always. The government has designed the VA claims process to be non-adversarial, but many veterans still feel that VA works against them, especially after a denial. A denial does not always mean the process failed or that a claim lacks merit. Often it means VA needs more evidence, a clearer link to service, or a second look through an appeal. But it can be challenging to tell the difference.

Understanding the built-in protections — the duty to assist, the benefit of the doubt, and the right to appeal — can help a veteran decide on the right next step after a decision.

Hiring an experienced VA-accredited representative may also provide a valuable resource to a veteran questioning whether VA performed its duty properly.

Frequently Asked Questions About the Non-Adversarial VA Process

Is VA really on the veteran’s side?

Legally, VA must run a non-adversarial, veteran-friendly claims process, which includes helping gather evidence and applying the benefit of the doubt. In practice, outcomes vary, and a veteran who disagrees with a decision can respond through VA’s appeal options.

Do I need a lawyer for a VA claim?

The VA claims process does not require a veteran to have a representative, although free, VA-accredited representation may be available. Representation often matters more at the Board of Veterans’ Appeals or at the Court of Appeals for Veterans Claims, where the process is more complex and, at court, adversarial.

Does the benefit of the doubt mean VA must approve my claim?

No. The benefit of the doubt applies only when the positive and negative evidence are roughly equal. If the evidence weighs against the claim, VA can deny it. The rule helps veterans in close cases, not in every case.

What is the difference between “new and relevant” and “new and material” evidence?

“New and material” was the older reopening standard. Since February 2019, Supplemental Claims use “new and relevant” evidence, a lower, more veteran-friendly threshold from the Appeals Modernization Act.

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