Higher-Level Reviews and Duty to Assist Errors

Higher-Level Reviews and Duty to Assist Errors

Duty to assist’ is a common phrase used by the VA and Veterans advocates related to the VA’s duty to help you in your pursuit of evidence for your VA claim. The VA has a duty to assist Veterans in the development of their claims for service connection. This includes requesting identified medical records, getting service treatment and personnel records, getting VA treatment records, and providing medical examinations. While there are some other actions under the ‘duty-to-assist’ umbrella, these are likely the ones most Veterans are familiar with.

What Is the Duty To Assist?

The duty to assist is a legal obligation the VA has to help Veterans substantiate their claims about injuries, chronic illnesses, and disabilities. In other words, the VA’s primary duty is to help you get disability benefits, not prevent you from getting disability benefits.

In a broad sense, the VA must:

  • Provide you with a medical examination when certain requirements are met
  • Provide assistance in obtaining medical records in order to fully analyze your disability benefits claim

What Does the Duty To Assist Include?

The duty to assist from the VA encompasses many different actions, such as:

  • Requesting or seeking out medical records. You may need to fill out VA Form 21-4142 if you have doctors outside the VA. This will allow them to release your medical records. The VA should then request the records from your doctors, but it’s up to you to make sure that you get the records if the VA cannot acquire them
  • Requesting service records. The VA is required to request your service records if your treatment records aren’t already associated with your claims file. This includes contacting the Joint Services Records Research Center if you are filing a claim for PTSD
  • Informing Veterans about what is needed to prove their disability claims. This duty to inform involves telling you what you need to prove your claim and informing you if there is a lack of evidence that makes your claim weaker than it could be
  • Providing medical examinations, as mentioned above. The VA is required to provide a medical examination even if you allege a secondary service connection

For example, if you need service records to prove that you were at a specific location at a specific time in order to acquire a service connection for your disability, the VA has a legal obligation to help you get those records. The VA and its representatives cannot make this difficult for you, nor can they refuse your records for any reason.

However, if the VA does not follow its duty to assist in any of the above actions, that failure could be grounds for you to appeal the VA’s decision. For instance, if the VA rates your disabilities at 30% total, but you believe your disability rating should be higher, you can petition the VA for an appeal, citing the lack of assistance you received from the VA to acquire medical or service records.

Can You Forfeit the Right to the VA’s Duty To Assist?

There are some circumstances in which you, the Veteran, may forfeit your right to assistance from the VA. You may wish to or be forced to do this when:

  • You reopen a disability claim. For example, if you previously made a disability benefits claim and were denied, and the denial is finalized, you’ll have to offer new, material evidence in order to reopen the claim. As soon as the claim is reopened, the VA’s duty to assist applies again
  • You elect for a higher-level review in the RAMP program. If you ask for a higher-level government administrator to review your claims within the RAMP program, the VA doesn’t have a duty to assist you at this point

Duty to Assist and the Appeals Modernization Act (AMA)

With the passage of the Appeals Modernization Act, a Veteran’s ability to appeal VA denials was completely re-vamped. One of the new review options includes requesting a ‘Higher-Level Review’ of the prior VA decision. This Higher-Level Review does not allow Veterans to submit any new evidence, but instead looks at the adequacy of the prior decision – including whether the Regional Office complied with this ‘duty-to-assist’.

Frequently, our Veteran clients are receiving notices and decisions in response to these ‘Higher-Level Reviews’ which state that a ‘duty-to-assist error’ has been identified during the ‘Higher-Level Review’ and that the claim or claims are being deferred for additional development. But what does that mean?

Essentially it means that in reviewing the prior denial, a VA higher-level reviewer found that the VA, in some way, failed to comply with their duty-to-assist. This often means that the VA reviewer agreed that the VA may have failed to provide an examination when they should have or that the VA failed to get relevant records which may help prove your case.

What to Do When You Receive a Duty to Assist Error

What do I do when I get something like this in the mail? Generally speaking, because this shows that the VA failed to do something, the next steps depend on what the VA failed to do. It must be noted that because the duty-to-assist error is not a ‘final decision’ on your claim, no appeal needs to be filed.

If the VA’s error is because they failed to provide you with an examination, please be on the lookout for information about scheduling you for an exam. Also, do everything you can to ensure that you can attend that exam or reschedule if necessary.

Likewise, if the VA says they failed to get relevant records, the VA may send forms requesting your authorization for a private doctor to release records to the VA. Please make sure to fill out these forms so that the VA may gain access those records.

What if I Still Don’t Get the Rating I Deserve?

So, you went through the requested steps after receiving a letter about the VA’s error in their duty to assist you. You then receive a new decision, but you don’t think it adequately accounts for your disabilities. What happens next? The next step is to appeal the decision with the assistance of an attorney.

The attorneys at Berry Law understand the VA claims process and have successfully helped Veterans recover over $160 million in back pay awards. If you need assistance appealing your VA claim, contact the skilled attorneys at Berry Law. Berry Law helps fellow Veterans appeal unfavorable VA decisions to get the disability benefits they deserve. Call today for a free case evaluation.


Appeals Modernization | Veterans Benefits Administration

38 CFR § 21.1032 – VA has a duty to assist claimants in obtaining evidence |

Frequently Asked Questions About Decision Reviews | Veterans Affairs

Berry Law

The attorneys at Berry Law are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

This material is for informational purposes only. It does not create an attorney-client relationship between the Firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this blog are not a substitute for legal counsel.

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