The VA’s Duty to Assist

Topics:

Evidence in Support of Your Claim
The VA’s Duty to Assist
The VA’s Duty to Assist in Obtaining Civilian Records
The VA’s Duty to Assist in Obtaining Service Records
The VA’s Duty to Assist in Providing Medical Exams/Opinions
Errors in the VA’s Duty to Assist

The VA has a “duty to assist” veterans with obtaining the evidence necessary to substantiate their claims (38 USC § 5103A(d)). However, the VA’s Duty to Assist is often misunderstood.

Let’s discuss exactly how the VA’s Duty to Assist works and what you should expect when submitting your claim.

Evidence in Support of Your Claim

In order for your VA Disability Claim to be successful, you must submit evidence that proves service-connection and supports the correct ratings for each of your conditions.

Ultimately, it is the veteran’s job to ensure that this evidence is included with their claim. If a claim does not have the proper evidence necessary to support it, the VA can and will deny it.

So if it is entirely the veteran’s responsibility, where does the VA’s Duty to Assist come in to play?

There are three ways in which the VA has a Duty to Assist:

in obtaining civilian records,
in obtaining service records, and
in providing medical examinations/opinions.

The VA’s Duty to Assist requires them to make “reasonable” efforts in these areas unless:

the claim already has sufficient evidence to properly adjudicate it
the evidence is unlikely to benefit the claim (i.e. dental records for an ankle claim)
the veteran submits the evidence themselves

Each area of assistance has its own unique requirements, so let’s discuss them separately to understand how the VA is required to assist in each case.

The VA’s Duty to Assist in Obtaining Civilian Records

If you’d like, you can request and authorize the VA to help you gather the evidence from your civilian providers necessary to support your claim. You make this request for assistance when submitting your claim, and you must include sufficient details so that the VA can identify where the records are located and the dates to request.

For example, if you are submitting a claim for knee strain and want the VA to get your medical records from your civilian physical therapist. You will need to provide them with the clinic’s information where you were treated, the therapist’s name, and the dates you were treated.

The VA’s Duty to Assist requires them to make “reasonable” efforts to obtain these records. “Reasonable” is further defined to mean at least 2 requests to the facility where the records are being kept unless the first request makes it clear that any additional requests will not be effective.

If the VA makes these reasonable efforts and is unable to obtain the records, they will notify you of their attempts and proceed to adjudicate the claim without them. If this happens, you can always get the records and submit them yourself either with the original claim or with a supplemental claim.

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The VA’s Duty to Assist in Obtaining Service Records

In addition to your civilian records, you can request the VA to help you obtain essential service records necessary to support your claim from the DoD or from any federal agency. Again, you must provide the VA enough information with your claim for them to locate the required records.

The VA can help you obtain:

Service medical records
General service records (i.e. DD214, deployment records, etc.)
VA treatment records
Any other relevant records from a federal agency

Unlike with civilian records, the VA’s Duty to Assist for service records continues until the records are obtained unless is it clear that the records do not exist or simply cannot be found.

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The VA’s Duty to Assist in Providing Medical Exams/Opinions

By far the most common of the VA’s Duty to Assist is providing medical exams (known as “C&P Exams”) and medical opinions.

Compensation and Pension Exams (“C&P Exams”) are performed by VA-authorized physicians for the majority of claims submitted.

When a claim does not have sufficient current evidence to determine service-connection or correctly rate the condition, the VA will require a C&P Exam to obtain the missing evidence. The purpose of the C&P Exam is to confirm the circumstances of service-connection and perform any examinations, tests, and measurements needed to rate the condition.

C&P Exams are not required if a claim already have sufficient evidence to adjudicate it.

Medical opinions or often part of the C&P Exam but can also be separate if the VA is only missing evidence linking the condition to service. In these cases, the VA will have a physician review the veteran’s case and provide an opinion on whether or not their condition is the result of their military service.

Medical opinions are especially necessary when claiming secondary conditions or conditions caused by exposure or other aspect of military service that are not on the Presumptive List. These are the VA’s equivalent of a Nexus Letter.

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Errors in the VA’s Duty to Assist

When the VA does not properly perform their Duty to Assist, the VA is required to remedy the situation.

If you discover that the VA did not fulfill their Duty to Assist with your original or supplemental claim, then you can submit for a Higher Level Review and let them know of the error. They will then take the steps necessary to have the error fixed and provide the correct decision on your claim.

The best way to avoid errors in the VA’s Duty to Assist is to be as proactive as possible throughout your claim process.

Ultimately, the responsibility of evidence lies on your shoulders, so we will always encourage you to gather and submit all of the evidence you need yourself. This not only ensures that the VA receives everything but also ensures that you have copies of all of your records so that you can support your claim even through appeals, if necessary.

Even though the VA has a duty to assist, they will never work as hard for you as you will for yourself.