The VA’s Obligations Under the Duty to Assist

Way back in 2000, Congress passed the Veterans Claims Assistance Act (VCAA). Under the VCAA, the VA is required to notify veterans of the evidence and information necessary to prove a claim. The VA is also required to assist veterans in obtaining evidence and information necessary to prove a claim.

The VA Must Notify Veterans About Information and Evidence Necessary to Substantiate a Claim

Upon receipt of a substantially complete initial or supplemental claim, the VA has a duty to notify a veteran of any information or evidence necessary to substantiate a claim. As a part of that notice, the VA is also required to specify which portion of that information and evidence (if any) will be provided by the veteran and which portion (if any) the VA will attempt to obtain on the veteran’s behalf.

The VA is only required to provide this notice once at the beginning of the claims process. Any information or evidence that the VA requests from the veteran must be received within one year from the date that the notice was sent. However, VA regulation (38 C.F.R. § 3.159(b)(1)) permits the VA to decide a claim after 30 days if the claimant does not respond to the request for information. If the VA issues a decision before the veteran provides the substantiating evidence, then the veteran may file a supplemental claim with that new and relevant evidence or appeal to the Board of Veterans’ Appeals by filing a Notice of Disagreement.

The Duty to Assist in Obtaining Private Records

The VA’s duty to assist includes making reasonable efforts to obtain private records. Private records for these purposes are any records not in the possession of a Federal department or agency, including records from State or local governments, private medical providers, current or former employers, etc.

To trigger the VA’s duty to obtain private records, a veteran must first adequately identify private records and ask the VA to obtain them. In general, this means that the veteran needs to provide the VA with enough information to identify and locate the records including the name and location of the person or entity with possession of the records and the approximate time frame covered by the records. Once this duty is triggered, the VA must make reasonable efforts to obtain the private records unless there is no “reasonable possibility” that assistance would substantiate the claim.

it is important to note that this does not mean that the VA will engage in an endless fishing expedition to obtain private records; there is no guarantee that the VA will actually obtain the private records on a veteran’s behalf. The VA must make at least two requests to a custodian of private records unless it is clear from the first attempt that a second would be futile. By way of example, if the VA contacts a private healthcare provider and receives no response, then a second attempt to obtain private records would appear to be required. However, if a custodian of private records responds during the initial attempt by stating that the records do not exist, then the VA may reasonably conclude that a second attempt to obtain those records would be futile.

If the VA cannot obtain the private records that a veteran identified, then the VA must notify the veteran. That notification must identify the records that the VA was unable to obtain, explain the efforts VA made to obtain the records, describe any further action VA will take regarding the claim (including an explanation that a decision will be made based on the evidence that was obtained unless the veteran submits the records that the VA was unable to obtain), and explain that the veteran is ultimately responsible for providing the evidence to the VA.

Other Records the VA Must Obtain Under Its Duty to Assist

The VA is also required to obtain a veteran’s service medical records, VA treatment records and any other relevant records held by any Federal department or agency (e.g., social security records) that the veteran adequately identifies and authorizes the VA to obtain. While the VA’s obligation to obtain private records is relatively limited, the VA is required to continue efforts to obtain records from a Federal department or agency until they are obtained unless it is reasonably certain that the records do not exist or that further efforts to obtain those records would be futile.

If, after continued efforts to obtain Federal records the VA is reasonably certain that they do not exist or that further efforts to obtain them would be futile, the VA must provide notice to the veteran that identifies the records it was unable to obtain, explains the efforts made to obtain the records, describes any further action VA will take regarding the claim (including an explanation that a decision will be made based on the evidence that was obtained unless the veteran submits the records that the VA was unable to obtain), and states that the veteran is ultimately responsible for providing the evidence to the VA.

The Duty to Provide a Medical Examination or Opinion

In VA disability compensation claims, the VA has an obligation to provide a medical examination or opinion when necessary to make a decision on the claim. A medical examination or opinion is considered necessary when the veteran’s VA claims folder contains competent evidence of a current disability or symptoms thereof, evidence indicating that the disability (or symptoms) may be associated with active military service, but there is not sufficient medical evidence for the VA to make a decision on the claim.

When Does the Duty to Assist Apply Under the Appeals Modernization Act?

The Appeals Modernization Act went live in February 2019. Under the Appeals Modernization Act, the VA’s duty to assist is more limited than under the traditional, legacy appeals, system. The duty to assist applies only when a veteran files an initial application for benefits or a supplemental claim with new and relevant evidence. This is a key distinction from the traditional process because this means that the duty to assist no longer applies to the Board of Veterans’ Appeals or Higher-Level Reviews.

However, both the Board and a Higher-level reviewer are still required to identify duty to assist errors committed by the lower-level reviewer prior to the date of the initial or supplemental claim decision and remand the claim (send the claim back to the lower-level reviewer) with instructions to fix that error.

In What Other Instances Will the VA Refrain From or Stop Providing Assistance?

As discussed above, the duty to assist survives for initial and supplemental claims even under the Appeals Modernization Act. The exception to this is where there is no reasonable possibility that any assistance would substantiate the claim. For example, there is no reasonable possibility that assistance would substantiate a claim where a veteran is ineligible for benefits due to lack of qualifying service, a claim is inherently incredible, and where a veteran is requesting benefits that (s)he is not entitled to as a matter of law. In other words, the duty to assist will generally apply for initial and supplemental claims unless the VA knows in advance that any assistance will make no difference.

Active Involvement is Key Despite the Duty to Assist

The “non-adversarial” VA claims system appears to lull veterans into thinking that the VA will do the heavy lifting, connect the dots, and grant their claims. Good luck with that. The reality is that winning a claim often requires active participation in the process.

Even assuming the VA actually gathers all the evidence that supports a veteran’s claim under the duty to assist without issue, the VA must then assign the task of reviewing the veteran’s record. Those records are frequently more than a thousand pages. Despite the duty to assist, the unfortunate reality is that the VA lacks the resources necessary to adequately review the large number of claims that it must process. (If you’re wondering just how many claims the VA is processing, take a look at the data published here.) For this reason, every veteran should operate under the assumption that evidence must be presented to the VA in a clear and concise manner despite the VA’s Duty to Assist with gathering that evidence.

If you are not both knowledgeable about VA law and actively involved in the development of your claim(s), then you should consider hiring an attorney who specializes in VA law. This will give you an undeniable edge.

As an attorney who specializes in veterans benefits, I have the training necessary to identify VA errors that may otherwise go unnoticed. With the ability to access your VA claims file electronically, I am able to conduct a thorough review and determine what development is necessary to win your claim(s).