VA’s Duty to Assist
CCK Law: Our Vital Role in Veterans Law
Between gathering evidence, forming effective arguments, and remembering deadlines, earning disability ratings from the Department of Veterans Affairs (VA) can be complex and difficult for many veterans. To help simplify this process, Congress passed laws giving VA a “duty to assist” veterans in developing their disability claims.
If you are a veteran seeking to file a claim with VA, then you should be aware of the obligations VA has to assist you in the process. In this article, you will learn about the benefits, limitations, and common pitfalls involved in VA’s duty to assist.
Key points of this article include:
- VA’s duty to assist compels VA to inform veterans of what evidence they need to prove their disability claims, help veterans acquire this evidence, and more.
- There are substantial limitations on VA’s obligation to assist veterans. These are often defined by the relevance of the evidence at hand and whether that evidence can be acquired through “reasonable effort.”
- When VA fails in its duty to assist, it is called a duty-to-assist error, and veterans can appeal based on this type of error.
What Is VA’s “Duty to Assist”?
The phrase “duty to assist” describes VA’s obligation to help veterans develop their disability claims, established by 38 U.S.C. § 5103A. Typically, the duty to assist compels VA to make “reasonable efforts” to perform the following functions:
- Informing veterans of the evidence they need or are missing for their claims (also known as the “duty to notify”)
- Assisting veterans in acquiring this evidence
- Considering all diagnostic codes and any “inferred claims” when rating veterans for disabilities
Importantly, under the Appeals Modernization Act of 2017, VA’s duty to assist applies until VA issues its initial decision. Practically speaking, this means the duty to assist only applies to initial claims and supplemental claims. If a veteran attempts to appeal a VA decision and chooses either the Higher-Level Review or Board of Veterans’ Appeals pathways, VA will not be obligated to assist the veteran.
Duty to Notify
One facet of VA’s duty to assist is called the “duty to notify” (38 U.S.C. § 5103; 38 C.F.R. § 3.159(b)). This rule requires VA to inform veterans on what evidence they need to prove their disability claims, as well as update veterans on what their claims might still be missing. Specifically, duty to notify compels VA to:
- Inform veterans of what evidence is needed to establish service connection.
- Explain what evidence veterans need to locate, and what evidence VA will obtain on their behalf.
- Notify veterans if their claim is missing key documents proving their current diagnosis or in-service event.
- Advise veterans on any additional information that may help their claim be approved, should VA determine that the claim can be processed.
Additionally, if VA is not able to obtain records after making reasonable efforts, VA has a duty to notify the veteran that they are responsible for providing VA with those records.
Acquiring Relevant Evidence
One of the most important aspects of VA’s duty to assist is its obligation to help veterans gather evidence to substantiate their disability claims. In particular, duty to assist requires VA to make a “reasonable effort” to acquire evidence and any other relevant documentation a veteran might need to establish service connection. (38 C.F.R. § 3.159(c)(1)–(3))
Some forms of evidence VA may gather on a veteran’s behalf include:
- VA medical records
- Service personnel records
- Service medical records
- A Compensation and Pension (C&P) exam
- Any other government or private records that may contain relevant information
To make the best use of this facet of VA’s duty to assist, veterans should identify to VA the evidence they need help obtaining. This includes providing information like the locations, date ranges, and contents of any records they seek. Once VA has enough information to find the necessary documents, it must then make a reasonable effort to secure them.
It is important to note that VA will only help a veteran obtain evidence that is “relevant” to substantiating a veteran’s claim. If VA determines a piece of evidence does not pertain to a veteran’s claim, they may refuse to seek it out.
Using Favorable Diagnostic Codes and “Inferred Claims”
VA’s duty to assist also takes effect as they review the evidence for a veteran’s disability claim. When looking over the proof of a veteran’s claim, VA is obligated to rate a disability using the criteria that favor the veteran most readily. They are also compelled to consider “inferred claims.”
Michael Lostritto, Managing Attorney at CCK Law, explains further:
“Beyond building evidence for you, VA’s duty to assist means it must consider all diagnostic codes that could apply to your disability and use the codes that result in the most benefits. VA must also identify any ‘inferred’ claims that the evidence supports but that you left out. In other words, if VA can see from your evidence that you would be able to win a claim that you did not make, they must identify and grant an award for it anyway.”
What Counts as a “Reasonable Effort” When It Comes to VA Assistance?
Notably, what constitutes a “reasonable effort” to aid veterans can vary depending on what kind of evidence the veteran needs and where it can be found. For example:
“For VA, military, and federal records, VA will continue to request your records until concluding that the records do not exist or further efforts would be futile,” says Michael Lostritto. “On the other hand, for private records, VA will make at least one follow-up request to try to get your records.”
What Are the Limitations on VA’s Duty to Assist?
Though VA’s Duty to Assist is valuable in helping veterans retrieve evidence to substantiate their disability claims, there are limits to how far VA is compelled to go to aid a veteran’s claim. Some of the limitations affecting VA’s duty to assist include:
- Private record fees – Any fees required to obtain private medical records will not be paid for by VA. This leaves payment up to the veteran.
- Relevance of evidence – VA will only assist in obtaining evidence if they consider it to be “relevant” to a veteran’s claim. Veterans should inform VA of the existence, location, and important dates of any relevant evidence they want VA to seek on their behalf.
- Lack of argumentation – Though VA will help gather and process evidence, this does not mean they will help the veteran formulate an argument as to why they deserve disability compensation. Arguing in support of a veteran’s claim falls either to the veteran themselves or their legal representative.
- Reasonable effort – VA is obligated to make a “reasonable effort” to help veterans acquire evidence. When it comes to federal, military, or other governmental records, VA typically will continue to request records until they have either obtained them, determined the records do not exist, or conclude it would be futile to keep trying. For private medical records, on the other hand, VA may only make two requests to retrieve them: an initial request and one follow-up. After that, they will likely be left to the veteran to obtain.
When Does the Duty to Assist Not Exist?
In addition to the above limitations, there are other situations that impact how much aid a veteran will receive from VA via their duty to assist. The following are circumstances where veterans might forfeit their right to receive VA assistance, depending on the pathway they choose to pursue their disability claim:
- Board of Veterans’ Appeals – While the duty to assist applies to initial and supplemental claims, it does not apply to claims that end up before the Board of Veterans’ Appeals. Essentially, the Board is no longer obligated to remand decisions for the purpose of developing additional evidence for the claim. However, if the Board finds that the VA Regional Office made a duty-to-assist error, it can remand the case and instruct the Regional Office to fix that error. (38 C.F.R. § 20.802(a))
- Higher-Level Reviews – Higher-Level Reviews do not require VA to assist veterans in gathering evidence. Just like the Board review process, the Higher-Level Review looks at the adequacy of the previous decision, determines if the Regional Office fulfilled its duty to assist, and points out any duty-to-assist errors that may have led to a denial.
Lack of new and relevant evidence – Additionally, if a veteran chooses to reopen their previously denied claim, the veteran will need to provide new and relevant evidence before the duty to assist becomes applicable.
What Are Duty-to-Assist Errors?
A duty-to-assist error occurs when VA does not make a reasonable effort to assist a veteran in developing their disability claim. Duty-to-assist errors come in two major forms:
- VA failing to make an earnest attempt to obtain evidence on a veteran’s behalf; or
- VA neglecting to schedule a C&P exam or other medical opinion to confirm and rate a veteran’s diagnosis. Even if a C&P exam was conducted, it may be deemed inadequate if it contains obvious mistakes or if its results fail to hold up under scrutiny.
Generally, duty-to-assist errors are identified during the appeals process by one of the following parties:
- Higher-Level Reviewer – When a duty-to-assist error is detected during a Higher-Level Review, veterans may receive a notice saying the claim is being deferred for additional development.
- Board of Veterans’ Appeals judge – As previously mentioned, the Board may also remand a VA decision based on a duty-to-assist error.
- The veteran or their legal representative – Veterans and their legal representatives may also notice a duty-to-assist error and notify VA of its existence.
It is important to note that the duty-to-assist error must be pre-decisional, meaning it occurred prior to the Agency of Original Jurisdiction (e.g., Regional Office) adjudication on appeal. In other words, the only evidence that can be looked at for duty-to-assist errors must already be in the file prior to the initial decision. (38 C.F.R. § 20.802(a); National Org. of Veterans’ Advocates v. Sec’y of VA, 981 F.3d 1360 (Fed. Cir. 2020).)
For example, say a veteran never explained that they had service-related symptoms until after a rating decision. As a result, the Regional Office did not get a medical opinion and denied the veteran’s claim. Under the AMA, this would not be considered a duty-to-assist error.
How Does VA Correct Duty-to-Assist Errors?
To correct duty-to-assist errors, the Higher-Level Review senior VA employee or the Board may instruct the Regional Office or the Agency of Original Jurisdiction (AOJ) to obtain additional evidence or an advisory medical opinion.
If the Board remands an appeal for correction of a duty-to-assist error, the appeal is not automatically returned to the Board following development. Instead, the AOJ will readjudicate the pending appeal. It will only be returned to the Board if the claimant files another Notice of Disagreement within one year of the AOJ’s readjudication.
How Are Duty-to-Assist Errors Fixed?
Duty-to-assist errors indicate there was a mistake during the claims process and can play a significant role in delaying claims. However, there are a variety of ways that veterans can respond to a duty-to-assist error, including:
- Using the error to file for an appeal – If VA gives an inadequate explanation for the error it made, its rating decision can be challenged on this basis. This could be invaluable for veterans who initially received unfavorable ratings.
- Compelling VA to readjudicate – Depending on the severity of the error they made, VA may be obligated to correct it of their own volition. This may lead them to obtain new evidence, reconsider the rating criteria, and ultimately issue a more favorable decision on a veteran’s claim.
- Pursuing back pay – If a duty-to-assist error prompts VA to reconsider and ultimately grant a veteran’s disability claim, the veteran is typically entitled to back pay for the delay caused by the error.
Need Help Developing Your Appeal? Contact CCK Law
If VA failed in its duty to assist and denied or underrated your claim, the attorneys at Chisholm Chisholm & Kilpatrick may be able to help you secure the disability compensation you deserve. Our team of accredited veterans’ advocates and lawyers understands what is needed to establish service connection and can help obtain the relevant records to develop your appeal.
Call CCK Law today at (800) 544-9144 or contact us online to tell us about your case.
