The VA has an obligation to help veterans substantiate their claims. This is known as the “duty to assist,” which maintains that:
The VA is required to provide a medical examination when existing evidence shows a claimant has a current disability or symptoms of a possible service-related disability, but his or her record does not contain enough medical evidence to grant a claim.
If the VA decides not to provide an examination, it is required to provide adequate reason for the decision. For the VA to justify not providing an exam, they must conclude that “no reasonable possibility exists” that an exam would help substantiate the claim.
The VA is mandated to make reasonable efforts to obtain relevant records a veteran adequately identifies. For private records, those not in federal custody, reasonable efforts include making “not less than two requests to a custodian of private record.” For records in federal custody, the obligation is even higher. For records within the control of a federal agency, the efforts to obtain those records “shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.”
Though the duty to assist can be broad, the VA is not obligated to assist in providing evidence for a claim “if the evidence obtained indicates that there is no possibility that further assistance would substantiate the claim.”
The VA commonly falls short of their obligations under the duty to assist. If the VA did not help you obtain records you cited as necessary and you are granted an inadequate rating decision or your claim is denied as a result, you will be able to appeal the decision.
Sometimes fighting the VA on your own can feel like a full-time job. When your claims are repeatedly denied or your disability rating isn’t high enough to get you the benefits you need, the team of attorneys at Berry Law Firm can help. We’ve been fighting the next battle for veterans since 1965. Contact us today.
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