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October 13, 2023

The VA Duty to Assist Error—Explained!

Last updated on May 1, 2024

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In this post, we’ll break down and explain the VA duty to assist error.

We’ll also answer common questions like, “Is a duty to assist error good or bad?” and “How does the VA fix duty to assist errors?”

We’ll also explain what to do if you get a duty to assist error.

Let’s take a look.

VA DUTY TO ASSIST ERROR

What’s a VA Duty to Assist Error?

A VA duty to assist error is when the VA fails to make a reasonable effort to help you get the evidence you need for your claim.

For some types of claims, the VA is required to help you locate relevant evidence such as medical records, and to schedule certain exams on your behalf. This is what’s known as the VA’s duty to assist.

But if the VA doesn’t fetch a record you told them about, doesn’t schedule an exam you need, or doesn’t coordinate for a separate medical opinion you need, then you could end up with a VA duty to assist error on your claim.

How Does the VA Define Reasonable Effort?

How much effort the VA puts into getting your records depends on the type of record.

VA, military, and other types of federal records: The VA will make requests until they get the records. They’ll only stop trying if they’re sure the records don’t exist or if they think further efforts will be futile.

Private records: The VA will make at least one follow-up request to try to get your records. If they can’t get the records you need, they’ll tell you why they’re having trouble and if you need to do anything.

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Is a Duty to Assist Error Good or Bad?

On one hand, a VA duty to assist error is bad. It means that the VA missed something, and now you have to do extra work and wait even longer to get your claim approved.

On the other hand, it’s a good thing because it means your VA claim still has life. Duty to assist errors are typically discovered during an appeal, which means if you get this error, you’ve already gone through the heartbreak of seeing your claim denied.

But uncovering a VA duty to assist error means your claim could still be approved during the appeals process.

What do I do if I get a Duty to Assist Error?

If a duty to assist error is uncovered, all you need to do is wait and be ready to respond if the VA needs anything from you.

For example, if the VA fails to schedule an exam you need, be ready to work with them to schedule that appointment.

If they fail to request relevant medical records, be ready to send them a privacy release if they need it.

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How Does the VA Fix Duty to Assist Errors?

It depends on what type of appeal you filed.

If a duty to assist error is found during a Higher-Level Review (HLR), the VA will close your HLR and open a new claim in your name to gather the missing evidence. Then, they’ll re-decide your claim.

If it’s found during a Board Appeal, the VA will close your appeal and return your claim to your regional VA office for them to gather the missing evidence. They’ll then re-decide your claim.

In both cases, you’ll get mail from the VA explaining next steps and what is needed from you.

How Long Does a Duty to Assist Error Take to Fix?

There is no set timeline for the VA to fix a duty to assist error. How long it takes to fix an error depends on the new claim rater and how much evidence the VA missed on the first go around.

However, If the error was caught during a Higher-Level Review, the new rater who gets your returned file is required to expedite it.

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Duty to Assist Error Back Pay?

It’s possible to get back pay because of a VA duty to assist error.

Back pay for VA benefits is based on the date you become eligible for VA benefits and the date you start receiving those benefits. If there is a gap in time between the 2, you should get back pay.

This applies to VA duty to assist errors as well. Say it takes 3 months to correct a duty-to-assist error that was discovered during your appeal. If your claim is approved the second time around, you could get back pay for those 3 months.

More on the VA’s Duty to Assist

Check out the FAQs below for important information about the VA duty to assist.

When Does Duty to Assist Apply?

The VA duty to assist does not apply to all types of claims. It only applies to:

  • Initial claims
  • Supplemental claims.

If you file a Fully-Developed Claim (FDC), the VA will not help you gather records. They also have no duty to assist with gathering evidence for HLRs and BVA appeals.

For example, if you know of new and relevant evidence you want to submit to your Board Appeal, you have to gather and submit the evidence yourself.

What Does the VA Duty to Assist Include?

The VA will help you gather relevant records and evidence such as:

  • VA medical records 
  • Military service records 
  • Other types of federal records
  • Private medical records, like reports from a non-VA hospital or from your private healthcare providers

But the records must help substantiate your claim. If a record won’t help your claim, the VA won’t fetch it.

Before requesting any records, the VA will need some information from you, such as:

  • The type of records you want to be gathered for you
  • The dates of the records
  • Where the records are located 

They’ll also schedule exams, such as the C&P Exam on your behalf.

What’s the Duty to Notify?

The VA has a Duty to Notify you if they’re unable to fetch your records. 

There are two scenarios which will trigger this notification:

  • The inability to obtain any relevant private records you identified
  • The inability to obtain relevant Federal records that are necessary to substantiate your claim

The notification will:

  • Tell you what records the VA couldn’t find
  • Explain what the VA did to try and get the records
  • Describe any further action they’ll take to get the records
  • Indicate that you’re ultimately responsible for providing the evidence.
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Whether you’re considering filing a claim for the first time, or dealing with a VA duty to assist error, we have the know-how you need.

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