The VA’s duty to assist claimants goes hand in hand with the VA “non-adversarial” process of adjudicating claims. The duty to assist requires VA to gather information that may help support the veteran’s claim, such as service personnel records, service medical records, and VA medical records.
When Does the VA Have the Duty to Assist?
When a veteran files a substantially complete claim for benefits, the VA is required to assist in the development of the claim. What this means is the VA must assist the veteran by seeking evidence to substantiate the claim. This includes obtaining all relevant VA medical records (if there are any), service personnel records, service medical records, and any other relevant government records that may contain information that support the veteran’s claim.
The duty to assist does not mean that a veteran does not have to provide information for their claim. The VA will only make efforts to get the records that the veteran identifies for them or that the VA knows to exist but the veteran is still responsible for submitting evidence. Additionally, the VA will only make so many attempts to retrieve these records and the veteran ultimately shoulders the burden of making sure the VA receives the records.
It is important to note that although the VA will attempt to retrieve evidence such as private medical records, they will only make “reasonable efforts” to obtain them. This means that if the VA determines that the records either do not exist, or any further attempts to obtain them will be unsuccessful, it will not continue to try to obtain them. Additionally, the VA will not pay for private medical records.
If the VA Cannot Obtain Records, Will I Be Notified?
If the VA is not able to obtain records after making reasonable efforts, it has a duty to notify the veteran that it was not able to obtain the records, and notify the veteran that they are ultimately responsible for providing the VA with those records.
The VA will issue what is called a VCAA notice. A VCAA notice is a letter that the VA sends to a claimant to notify them that it is either working to obtain records, or that it has been unable to obtain records and request that the veteran submit those records to the VA within a given timeframe (usually 30 days).
Does the Duty to Assist Include C&P Exams?
The VA is required to schedule a veteran for a Compensation and Pension examination (C&P) if there is reason for the VA to believe that the exam will be helpful in resolving the claim. VA will order an examination 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. If the VA believes that an exam would not provide useful information for deciding the claim, or if it finds there is enough medical evidence to decide the claim, it does not have to provide one.