VA’s Duty to Assist
What is VA’s “Duty to Assist”?
The phrase “duty to assist” describes the U.S. Department of Veterans Affairs’ obligation to help veterans develop their claims. Duty to assist requires VA to aid veterans in gathering evidence to prove service connection, such as service personnel records, service medical records, and VA medical records.
VA’s Duty to Assist: Appeals Modernization Act
What is the Appeals Modernization Act (AMA)?
The Veterans Appeals Improvement and Modernization Act of 2017, also known as the Appeals Modernization Act (AMA), restructured the claims and appeals system. In the updated system, veterans can choose from one of three avenues when appealing a VA decision:
- A senior VA employee reviews the initial claim in a Higher-Level Review;
- The veteran submits a Supplemental Claim with new and relevant evidence; or
- The veteran files a Notice of Disagreement with the Board of Veterans’ Appeals.
Duty to Assist and the New Appeals System
Under the new appeals system, VA’s duty to assist only applies to initial claims and supplemental claims, and encompasses the following actions:
Duty to Notify
VA must inform veterans what evidence is needed to prove service connection. If a veteran is missing key documents showing their current diagnosis or in-service event, VA is required to let them know. VA must explain what evidence the veteran needs to locate, and what evidence VA will obtain on their behalf. Once VA determines that the claim can be processed, they should notify the veteran of any additional information that may help their claim be approved.
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.
Requesting Relevant Evidence
VA is required to request evidence and any relevant documents needed to substantiate the claim, which may 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
It is important for veterans to provide as much information as they have available and, if possible, identify records they need help obtaining. When VA has enough information to find the necessary documents, they must make a reasonable effort to secure them.
Also, veterans should look out for any notices from VA requesting permission to acquire certain records. For example, VA Form 21-4142 allows VA to obtain medical documents from private physicians.
When is Duty to Assist Forfeited?
While duty to assist does apply to the initial claim or a supplemental claim, it no longer applies to the Board of Veterans’ Appeals (Board). 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.
Similarly, Higher-Level Reviews are 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 will point out any duty to assist errors that may have led to a denial.
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.
Duty to Assist Errors
If VA does not make a reasonable effort in its duty to assist, this is called a duty to assist error.
When a duty to assist error is detected during the Higher-Level Review, veterans may receive a notice saying the claim is being deferred for additional development. As previously mentioned, the Board may also remand a VA decision based on a duty to assist error.
Veterans should be on the look out for information about attending an additional C&P exam or forms from VA requesting authorization for the release of private medical records.
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.
For example, say a veteran never explained that he 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. In the new appeals system, this would not be considered a duty to assist error.
How VA Corrects Duty to Assist Errors
If VA gives an inadequate explanation for not helping the veteran gather evidence, the rating decision can be challenged on this basis. To correct these 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.
VA’s Duty to Assist: Legacy System
What is VA’s Legacy System?
While new appeals are handled exclusively under the AMA system, appeals for VA decisions dated before February 19, 2019 may still be processed through the Legacy VA appeals system. Veterans can track their claim status through VA to determine if their appeal is being processed under the Legacy or AMA system.
Veterans appealing through the legacy system can still opt into the new system during certain points in the process.
Duty to Assist: Legacy vs. Appeals Reform
Just like in the new appeals system, the Legacy system requires VA to assist in the development of a veteran’s claim. However, there are a few key differences.
In the Legacy appeals system, the veteran can provide information about their symptoms in their Notice of Disagreement or other submissions after the rating decision. The Board of Veterans’ Appeals will then remand to comply with the duty to assist. In the new system, the duty only applies during the initial and supplemental claims.
Additionally, the Legacy appeals system allows for independent medical opinions (IMOs) during the Board review. If the Board discovers that some medical questions have been left unanswered or prior examinations were inadequate, the Board may request an IMO from a doctor of a specialty relevant to the pending appeal. These medical opinions are not exams that a veteran must attend, but rather a review of the evidence currently of record. IMOs cannot be requested in the AMA system at the Board level.
Do You Need Help Developing Your Appeal?
If VA failed in its duty to assist and denied your claim, Chisholm Chisholm & Kilpatrick LTD may be able to help you secure disability benefits. The team of accredited veterans’ advocates and lawyers understand what is needed to establish service connection and can help obtain the relevant evidence to develop your appeal.
Call CCK today at 800-544-9144 for a free case review.
