The VA’s Duty to Assist

Getting your disability benefits claim approved by the VA can seem like an overwhelming task. Every time you submit information, the VA denies your claim. When you submit additional information to reopen your claim, the VA can say that it is not new and material evidence. Filing and receiving your disability benefits from the VA can be hard. But, it shouldn’t be. In fact, the VA has the duty to assist Veterans with their disability claims. The VA’s duty to assist can cover a wide range of actions that the VA must take to help a Veteran filing for disability compensation.

What Does the VA Need to Assist With?

By law, the VA has the duty to assist veterans with their claims. That duty encompasses a number of actions, including:

  • Informing Veterans what is needed to prove their claims
  • Requesting medical records
  • Requesting service records
  • Providing medical examinations, and so forth.

If the VA fails in its duty to assist on any of these actions, that can be grounds to appeal later on.  There are, however, times when the Veteran forfeits this right. We will address each of these later in the blog. Some examples of situations that the VA must assist with include:

  • Duty to inform: The VA is required to tell a Veteran what is needed to prove the claim, such as if there is a lack of evidence that the injury occurred in service or lack of a current diagnosis. Sometimes, the VA’s explanation is incomplete or vague, and you can challenge a rating decision on this basis.
  • Requesting medical records: If your records are with the VA, you don’t need to do anything; but if you have doctors outside the VA, you should fill out a VA Form 21-4142, a release of medical records. The VA will then request those records from your doctors, but you still have a responsibility to get those records if the VA can’t get them.
  • Requesting service records: if your service treatment records haven’t already been associated with your claims file, the VA is required to request them. If you’re making a claim for PTSD and have identified a stressor, the VA is required to contact the Joint Services Records Research Center (JSRRC) to verify the stressor.
  • Providing medical examinations: a veteran who alleges a current disability, an in-service event, and some connection between the two, should be provided a medical examination by the VA. You can also allege “secondary” service connection, meaning that the current disability is related to another service-connected condition, or a medication that you’re taking for a service-connected condition.

When do you forfeit this right to the “VA’s Duty to Assist?”

As previously mentioned, sometimes you may forfeit your right to assistance by the VA. Some examples of situations where this may occur include:

  • Reopening claims: If you have previously made a claim and been denied, and that denial becomes final, you will need to provide new and material evidence in order to reopen the claim. Once a claim is reopened, then the duty to assist kicks in again.
  • Electing Higher Level Review in the Ramp Program: Once you elect higher level review of your claims in the RAMP program, the VA no longer has a duty to assist you. The VA will make a decision based solely on the information they have at the time you elected RAMP.

Veterans Disability Law Attorneys

At Berry Law, we are committed to assisting Veterans appealing their VA decisions or looking to increase their current rating. Our team is Veteran owned and operated, with members from our team serving in all four branches of the military. If you or somebody you know would like to appeal a VA decision, please contact our team at (888) 883-2483 to schedule a free, confidential case evaluation from a professional on our team.