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