Duty-to-Assist Errors
VA’s duty to assist generally requires reasonable help obtaining identified relevant records and, when necessary, providing a medical examination or opinion.
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Quick answer
The duty is not unlimited and does not make VA the claimant’s representative. VA generally seeks relevant federal records until they are obtained or reasonably determined unavailable, makes reasonable efforts for adequately identified private records, and may provide an exam or opinion when regulatory criteria are met.
Common assistance dutiesDetails
- Obtain relevant VA medical and other federal records.
- Request military service records.
- Make reasonable efforts to obtain identified private records with authorization.
- Notify the claimant when records cannot be obtained.
- Provide a claim exam or medical opinion when necessary to decide the claim.
What a pre-decisional error meansDetails
In Higher-Level Review or Board review, a duty-to-assist error concerns assistance VA should have provided before the decision being reviewed. An HLR reviewer may return the issue for corrective development rather than grant it outright.
Document the alleged errorDetails
- Identify the record source, date range, and when VA was told about it.
- Show that the record was relevant to an issue.
- Check whether VA sent a request or notice of inability to obtain it.
- For an exam problem, identify the unanswered medical question or factual defect.
- Separate a disagreement with evidence weight from a failure to obtain evidence.
Common questionsDetails
- Must VA obtain every record mentioned anywhere? — No. Identification, relevance, availability, and authorization matter.
- Does the duty apply to HLR itself? — HLR uses the prior record; a pre-decisional error can be identified and corrected through subsequent development.
- Does a duty error guarantee a grant? — No. It leads to correction and readjudication.
- Who must ensure private records arrive? — VA assists, but VA tells claimants they remain responsible for ensuring receipt of non-federal records.
Use precise languageDetails
“VA ignored me” is less useful than “Before the decision, VA had the signed release identifying Dr. X’s records from January through June, but the file shows no request or notice.”