The “VA Duty to Assist” Explained!

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Navigating the VA disability claims process can be confusing and frustrating for many veterans.

One crucial aspect that often goes unnoticed is the VA’s Duty to Assist claimants.

Understanding this obligation can provide veterans with peace of mind, especially if you couldn’t gather all your evidence before submitting your claim.

In this article, VA disability expert Brian Reese breaks down the VA’s “Duty to Assist.”

We’ll explain what it is, how it works, and what you can expect from the VA during the claims process.

Armed with this knowledge, you’ll be better equipped to navigate the system and secure the benefits you deserve.

Let’s get started!

Summary of Key Points

• The VA’s Duty to Assist: The VA is required to help veterans gather evidence to support their claims for benefits, including military service records, VA medical records, and private medical records.

• Veterans Claims Assistance Act (VCAA) of 2000: This law redefined the VA’s duty to assist, eliminating the requirement for a well-grounded claim and mandating specific notice requirements to substantiate claims.

• Reasonable Efforts to Obtain Records: The VA must make continuous attempts to obtain necessary records until they are obtained, it is certain they do not exist, or further efforts would be futile.

• Handling Duty-to-Assist Errors: If the VA identifies an error during the claims process, they will take corrective actions, including reopening claims and notifying veterans of the steps to rectify the issue.

What is the VA Duty to Assist?

The VA’s Duty to Assist means that the VA is required to help you gather evidence to support your claim for VA benefits.

This obligation is rooted in the Veterans Claims Assistance Act of 2000 (VCAA), which states that the VA must actively help claimants gather the necessary evidence to support their claims.

The VA will make a reasonable effort to help you get the following types of evidence:

• Military service records

• Other types of federal records

• VA medical records

• Private medical records

You’ll need to inform the VA about the type of records you want them to gather, including the dates of the records and where they can be obtained.

How Does the VA Fulfill Its Duty to Assist?

The VA fulfills its Duty to Assist in several ways:

Providing Claim Forms and Instructions: The VA is responsible for providing veterans with the necessary claim forms and clear instructions on how to complete them. This includes the main form, VA Form 21-526EZ, which is used for filing a disability compensation claim.

Obtaining Relevant Records: The VA will make reasonable efforts to obtain relevant records that could support your claim, including:

• Service Treatment Records (STRs): The VA will request and obtain your military medical records to verify any in-service injuries or illnesses.

• VA Medical Records: If you receive treatment at VA medical facilities, the VA will retrieve these records to evaluate your current medical condition.

• Private Medical Records: If you’ve received treatment from private healthcare providers, the VA will assist in obtaining these records if you provide the necessary information and authorization. For private records, the VA will make at least one follow-up request to try to get your records. If they cannot obtain the records, they will inform you why they are having trouble and if you need to take any action.

Scheduling C&P Exams: To help decide your claim, the VA may ask you to have a claim exam (also called a C&P exam) or request a medical opinion. These exams are conducted by VA healthcare providers or contracted examiners and are crucial in determining your disability rating.

Providing Notification: The VA must notify you of any additional evidence or information required to substantiate your claim. This includes informing you if they were unable to obtain certain records and advising you on alternative ways to provide the needed evidence.

How the VA Defines a “Reasonable Effort”

For VA, military, and other types of federal records, the VA will continue to make requests until they obtain the records needed for your claim.

They will stop only if they are reasonably sure the records don’t exist.

For private records, the VA will make at least one follow-up request to try to obtain your records.

If the VA cannot get the records, they will inform you of the issues and any necessary steps you may need to take.

Permission to Access Your Private Medical Records for VA Disability

If you’d like the VA’s help gathering your private medical records, you’ll need to give them permission.

This involves filling out an Authorization to Disclose Information to the Department of Veterans Affairs (VA Form 21-4142).

You can submit this form online or download it and submit it by mail:

• Click here to submit an authorization online for the VA to get your medical information via the VA Form 21-4142

• Click here to download the .pdf VA Form 21-4142 if you’d rather complete it and submit it by mail.

What Kinds of Claims Will the VA Help Me Gather Evidence For?

The VA will help you gather evidence for an initial claim or a Supplemental Claim.

However, if you have new evidence for a Board Appeal, you will have to gather and submit that yourself.

What is an Initial Claim for Benefits?

An initial claim is a substantially complete application for a VA benefits and includes several types of filings:

Original Claim: This is the first filing by a claimant. If you have never filed a VA claim before, your first application is considered your original claim.

Subsequent Claims: This category includes subsequent claims filed by a claimant for:

• Increased Disability Evaluation: If your condition has worsened and you apply for a higher disability rating.

• New Benefit: If you are seeking an entirely different benefit than what you previously applied for.

• New Disability: If you have developed a new disability that was not part of your original claim.

References:

• Substantially complete claims,
  • 38 CFR 3.159(a)(3), and
  • M21-1 Part I, Subpart i, 1.A.4.f
• Initial claims, see 38 CFR 3.1(p)(1), and
• Increase claims, see M21-1, Part II, Subpart iii, 2.C.

What is a Supplemental Claim for Benefits?

This type of claim is filed when an initial or supplemental claim for the same or similar benefit on the same or similar basis has already been decided.

For a supplemental claim to be considered substantially complete, the claimant must submit or identify potentially new evidence.

This evidence must be relevant and have the potential to change the outcome of the previously decided claim.

References:

• Substantially complete claims,
  • 38 CFR 3.159(a)(3), and
  • M21-1 Part I, Subpart i, 1.A.4.f, and
• Supplemental claims,
  • 38 CFR 3.2501, and
  • M21-1, Part II, Subpart iii, 2.B.

What is a VA Duty to Assist Error?

A duty-to-assist error occurs if the VA does not make a reasonable effort to help you get the evidence you need for your initial claim or Supplemental Claim.

This could mean that the VA didn’t obtain the medical records you informed them about, or they didn’t request a claim exam or medical opinion you needed.

What Happens if the VA Finds a Duty-to-Assist Error?

When the VA identifies an error during the claims process, they take specific steps to address and correct the issue.

Here’s what happens in different review scenarios:

During a Higher-Level Review (HLR)

• Closing the Review: If a Duty-to-Assist error is found, the VA will close the Higher-Level Review.

• Opening a New Claim: A new claim will be opened to gather the missing evidence needed for your case.

• Notification: You will receive a letter explaining the steps the VA will take to fix the error.

• Assistance and Decision: The VA will help you obtain the missing evidence and then decide your case based on this new information.

During a Board Appeal

• Closing the Appeal: If the error is found during a Board Appeal, the appeal will be closed.

• Remand to Regional Office: Your case will be sent back (remanded) to a regional office to gather the missing evidence.

• Notification: You will receive a letter detailing the steps the VA will take to rectify the error.

• Assistance and Decision: The VA will assist in collecting the necessary evidence and make a decision on your case after gathering all required information.

Conclusion & Wrap-Up

The VA’s Duty to Assist is a fundamental part of the disability claims process, designed to ensure veterans receive the support they need to build a strong case for their benefits.

By understanding this obligation and actively participating in the process, veterans can increase their chances of a favorable outcome.

Remember, while the VA is there to assist, staying informed, proactive, and responsive can significantly impact the success of your claim.

VA’s Duty to Assist Claimants: Frequently Asked Questions (FAQ)

What is the VA’s Duty to Assist?

The VA’s Duty to Assist involves making reasonable efforts to help veterans obtain the necessary records to support their claims. This duty is triggered when a veteran submits a substantially complete initial or supplemental claim.

What is the Veterans Claims Assistance Act (VCAA) of 2000?

Public Law (PL) 106-475, known as the Veterans Claims Assistance Act (VCAA) of 2000, was enacted on November 9, 2000. It redefined the VA’s duty to assist claimants in obtaining evidence necessary to substantiate a claim. It eliminated the requirement that a claimant must submit a well-grounded claim before the VA can assist in developing the claim and mandated specific notice requirements regarding the information needed to substantiate a claim.

How Did PL 106-475 Amend 38 U.S.C. 5102?

PL 106-475 amended 38 U.S.C. 5102 to require the VA to notify claimants of any information necessary to complete an application for benefits or an intent to claim or apply for a benefit. This includes furnishing the necessary instructions and forms to apply for that benefit and deferring assistance until the claimant submits the required information.

What Changes Did PL 106-475 Make to 38 U.S.C. 5103?

The law amended 38 U.S.C. 5103 to require the VA to notify the claimant of any information not previously provided that is necessary to substantiate the claim. This information must be received by the VA within one year from the date of the notification. The required notice is often referred to as a Section 5103 notice.

How Did PL 106-475 Impact 38 U.S.C. 5103A?

PL 106-475 amended 38 U.S.C. 5103A to mandate that the VA make reasonable efforts to assist claimants in obtaining evidence necessary to substantiate a claim. This includes obtaining relevant federal records, private records adequately identified by the claimant, and providing a medical examination if necessary to decide the claim.

What are Federal Records?

Federal records are any documents in the custody of a federal department or agency. These include service treatment records (STRs), other service department records, VA medical records, Social Security Administration (SSA) records, Public Health Service records, and Department of Labor records.

How Does the VA Obtain Federal Records?

The VA must make reasonable efforts to obtain relevant federal records. This involves continuing attempts until the records are obtained, it is reasonably certain they do not exist, or further efforts would be futile.

What Happens if Federal Records Can’t be Obtained?

If the VA determines that federal records do not exist or further efforts to obtain them would be futile, they will notify the veteran. The notification will explain the efforts made, describe any further actions, and indicate that the veteran is ultimately responsible for providing the evidence.

What is Required from the Veteran to Assist in Obtaining Federal Records?

The veteran must cooperate by providing information to identify and locate existing records. This includes details about the department or agency holding the records, the timeframe covered, and a general description of the condition for treatment records.

How Does the VA Assist with Non-Federal or Private Records Requests?

Upon receiving a complete claim, the VA must make reasonable efforts to assist in obtaining relevant non-federal or private records. This includes making an initial request and at least one follow-up request unless it is clear that further requests would be futile.

What Constitutes “Reasonable Efforts” to Obtain Private Records?

Reasonable efforts to obtain private records involve making an initial request and at least one follow-up request if no response is received, unless it is determined that the records do not exist or further efforts would be futile.

What Should a Veteran Do if the VA Cannot Obtain Private Records?

If the VA cannot obtain private records, they will notify the veteran, identifying the records not obtained, explaining the efforts made, and describing any further actions. The veteran is ultimately responsible for providing the evidence.

What if Records Pertaining to Another Individual are Needed?

The VA can make reasonable efforts to obtain records pertaining to another individual if they are relevant to the claim and potentially helpful. However, this is subject to the third party’s consent and privacy considerations.

How Will I be Notified if the VA Cannot Obtain Records?

The VA will provide a final notification letter explaining which records could not be obtained, the efforts made, any further actions to be taken, and that the veteran is responsible for providing the necessary evidence.

What is the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (PL 112-154)?

PL 112-154, enacted in 2012, made further amendments to 38 U.S.C. 5103 and 5103A. Section 504 of the act authorized the use of electronic communication to provide notice to claimants for benefits, streamlining the VA’s duty to notify responsibilities. Section 505 amended the VA’s duty to assist claimants in obtaining private records, requiring no fewer than two requests to a custodian of a private record and encouraging claimants to submit relevant private medical records.

How Does PL 112-154 Affect the VA’s Duty to Notify?

PL 112-154 allows the VA to provide Section 5103 notices by the most effective means available, including electronic communications, and to provide these notices before or after the submission of a claim. It eliminates the need for additional Section 5103 notices for subsequent claims if the same type of notice was provided on a current pending claim within the previous year.

What Changes Did the Veterans Appeals Improvement and Modernization Act of 2017 (PL 115-55) Make?

PL 115-55, enacted in 2017, impacted both the VA’s duty to assist and duty to notify requirements. It revised Section 5103 to clarify that the notice requirement for a substantially complete claim applies to both initial and supplemental claims but is not required for a supplemental claim filed within one year of an original jurisdiction or Board decision. The act also detailed the conditions under which the VA’s duty to assist applies and the elements that must be included in the VA’s written notifications of decisions.

What Are “Relevant Records” According to VA Regulations?

Relevant records are those that relate to the disability or injury, or pension or Dependency and Indemnity Compensation (DIC) claim for which the claimant is seeking benefits. They must have a reasonable possibility of helping to substantiate the claim. The VA is not required to assist in obtaining records if there is no reasonable possibility that such assistance would aid in substantiating the claim.

When Will the VA Refrain from or Discontinue Assistance?

The VA will refrain from or discontinue providing assistance if the substantially complete application for benefits indicates that there is no reasonable possibility that any assistance the VA would provide would substantiate the claim. This includes claims where the claimant is ineligible for the benefit sought due to lack of qualifying service, lack of veteran status, or other lack of legal eligibility.

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