Duty to Assist Definition
The duty to assist requires VA to gather information and evidence that may help support the veteran’s claim, such as service personnel records, service medical records, and VA medical records. VA must make reasonable efforts to obtain such information; however, if VA determines the evidence does not exist, or has exhausted its “reasonable efforts” to locate it, then it has a duty to notify the veteran. In doing so, VA will indicate that the veteran is ultimately responsible for providing those records, if possible.
Duty to Assist: C&P Exams
VA is required to schedule a veteran for a Compensation & Pension (C&P) examination if there is reason for VA to believe that the exam will be helpful in resolving the claim. VA will order an examination as part of its duty to assist if the record contains evidence of a disability (or symptoms of a disability), evidence of an in-service event, and some indication that the veteran’s disability is associated with service.
Duty to Assist: Remands
In the old appeals system, known as the Legacy appeals system, VA is required to remand a veteran’s claim for any duty to assist errors that occurred at any time while the appeal was pending. Appeals may be returned to the Board following development or correction with the same docket number.
Changes to VA’s Duty to Assist Under Appeals Modernization Act (AMA)
There have been several notable changes to VA’s duty to assist stemming from the implementation of the Appeals Modernization Act (AMA). Under AMA, VA’s duty to assist is limited insofar as it is only required when a veteran files an initial claim for benefits, and when a veteran files a supplemental claim with new and relevant evidence. The duty to assist no longer applies to the Board, meaning the Board is no longer obligated to remand decisions for the purposes of developing additional evidence for the claim.
However, if the Board finds that the Regional Office (RO) made a duty to assist error, it can remand the case and instruct the RO to fix that error. 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. RO) adjudication on appeal. In other words, the only evidence that can be looked at for duty to assist errors under AMA has to already have been in the file prior to the initial decision.
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