VA’s Duty to Assist: Legacy System vs. Appeals Reform
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 VA Have the Duty to Assist in the Legacy Appeals System?
When a veteran files a 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 or private 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 ensuring that VA receives the evidence. Additionally, 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).
Does the Duty to Assist in the Legacy Appeals System Include C&P Exams?
VA is required to schedule a veteran for a Compensation and Pension examination (C&P) if there is reason for 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. Additionally, when the Board of Veterans’ Appeals is reviewing a veteran’s file for adjudication, it may discover that some medical questions have been left unanswered or prior examinations were inadequate. In this situation, the Board may request an independent medical opinion (IMO) from a doctor of a specialty that is 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. If an IMO is conducted, the veteran and his or her representative will be notified and will have 60 days to respond with evidence or argument if necessary.
However, if VA believes that neither an exam nor an IMO would 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.
Does VA’s Duty to Assist Apply to Remands in the Legacy Appeals System?
In 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 their appeal was pending. Here, duty to assist errors can include inadequate medical examinations or opinions as mentioned above, or a lack of Stegall compliance. Specifically, Stegall requires VA to comply with previous remand orders. For example, if the Regional Office fails to follow the instructions of the Board when it reviews and decides a claim on remand, it is in violation of Stegall. This reflects a duty to assist error and the Board will likely have to vacate the decision containing the error and remand it back to the Regional Office for correction. Importantly, in the Legacy system, appeals may be returned to the Board following development or correction with the same docket number.
When Does VA Have the Duty to Assist Under Appeals Reform?
Under Appeals Reform, 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 will no longer be obligated to remand decisions for the purpose of developing additional evidence for the claim. However, if the Board finds that the Regional Office made a duty to assist error, it can remand the case and instruct the Regional Office 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. Regional Office) adjudication on appeal. In other words, the only evidence that can be looked at for duty to assist errors in Appeals Reform, has to already be in the file prior to the initial decision. For example, a Veteran never explained that he had symptoms from his time in service until now. As a result, the Regional Office did not get a medical opinion. In the new system, this would not be considered a duty to assist error. However, in the old system, the Veteran could have provided information about his symptoms in his Notice of Disagreement or other submissions subsequent to the Rating Decision and the Board would have remanded to comply with the duty to assist.
How Does VA Correct Pre-Decisional Duty to Assist Errors Under Appeals Reform?
In order to correct pre-decisional duty to assist errors, the Board may instruct the Agency of Original Jurisdiction (AOJ) to obtain an advisory medical opinion. However, unlike the Legacy Appeals system, the Board cannot request independent medical opinions under Appeals Reform. If there is no pre-decisional duty to assist error, the Board is instructed to either grant or deny the claim based on the evidence considered by the AOJ, and any evidence submitted during or within 90 days of the filing of the Notice of Disagreement or the Board hearing.
If the Board remands an appeal for correction of a pre-decisional duty to assist error, the appeal is not automatically returned to the Board following development the way it is in the Legacy appeals system. Instead, the AOJ will re-adjudicate 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.