VA’s Duty to Assist Veterans’ Claims and Common Errors
Maura Black: Hi everyone, thank you for tuning in today to CCK Live Under 5:00. My name is Maura Black, and I’m an attorney here at CCK. Today we will be reviewing VA’s duty to assist and discuss its application in practice.
Generally, the duty to assist requires VA to gather information that may help support a veteran’s claim. That information could be service personnel records, service medical records, VA medical records, and also a C&P or compensation and pension examination if there’s a reason to believe that would be necessary to resolve the veteran’s claim. Despite VA’s duty to obtain this information, it is important to note that VA’s duty to assist is not unlimited.
Veterans are still required to provide information that would support their claims. The caveat here is that VA will make reasonable efforts to obtain the records that the veteran identifies or that VA knows to exist. Anything beyond that needs to come directly from the veteran.
Additionally, if VA begins to gather evidence or attempt to obtain evidence, it will only make reasonable efforts to obtain it. If VA is unable to obtain records after making reasonable efforts, it has to notify the veteran but it’s not required to keep going over and over indefinitely.
Now that we’ve covered what the duty to assist is—it’s this general duty to gather evidence that would help the veteran’s claim—let’s talk about when it applies.
In the legacy system, which is the pre-appeals reform appeal system, the duty to assist applies at every point of the process. This includes that the board of veterans appeals, which will remand issues if it identifies that VA did not satisfy the duty to assist in adjudicating the issues before it.
But under the Appeals Modernization Act, or the AMA, VA’s duty to assist is more limited. It applies after a veteran files an initial claim for benefits and when a veteran files a supplemental claim with new and relevant evidence. It also applies if the veteran, later in an appeal, identifies that the duty to assist was not complied with previously in the process.
The duty to assist does not apply automatically in each and every context in AMA. Specifically, it does not automatically apply in the Higher-Level Review lane, which is a popular choice for an appeal selection at the Regional Office.
It’s been definitely something to be mindful of. It is a departure from the legacy system. So it’s good to know that after an initial claim is filed or a supplemental claim, the duty to assist applies in AMA, but it doesn’t apply at every single step of the process or in every appeal lane.
That’s all we’ve got for today. Thank you so much for tuning in. This was pretty short and sweet, but we definitely have other resources on our blog and our website about this topic.
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