Question:
I went to my local VA building yesterday and filed a claim for TBI and PTSD. I gotta say the person at the desk was much more helpful than I expected. The VA receptionist dude kept telling me that the VA would help me with my claim and something about they have to assist me. Although the VA man was helpful he could not tell me what exactly the duty to assist was. Do you know?
Answer:
The Veterans Claims Assistance Act was passed in 2000 and it reinforced and detailed what steps the VA must take to assist you as a claimant or appellant for VA benefits.
In requiring the VA benefits system to be a “non-adversarial” process, Congress has imposed on VA a “duty to assist” claimants. The most significant VA duties are discussed below. In general, VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. VA also has a duty to obtain a veteran’s service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties significantly ease the burden on claimants in assembling the evidence needed to support a claim.
The duty to assist, however, does not mean a claimant has no responsibility for his or her claim. Even if a claim satisfies the minimum threshold for the duty to assist to apply, the law requires VA only to “assist” a veteran with the development of the evidence in support of his or her claim. There are limits on what VA has to do to help a veteran. A claimant seeking a benefit, still has a responsibility to be an active participant in the claims process if he or she wants to be successful.
VA has other duties that can be helpful to claimants in certain circumstances. If an award is made, VA has a duty to look for ways to maximize the benefit paid to a claimant based on the evidence. This means that VA has to consider all the possible diagnostic codes that could apply and base an award on the code or codes that result in the highest payment. VA also has to identify and grant awards for “inferred” claims, which are claims that the evidence supports but the claimant did not specifically request. Both of these duties make it easier for veterans to receive the greatest benefit possible without having to be an expert in VA law.
A claimant also needs to keep in mind that, the duty to assist aside, VA also has responsibilities to follow the law and to prevent improper awards. As a practical matter, this means that the system eventually becomes “adversarial” when VA decides that an award cannot be granted. Further, the huge backlog of claims has strained VA’s resources and continues to result in a high rate of errors. For these reasons, claimants should remain actively involved in their claims and maintain a healthy skepticism of VA decisions throughout the process to avoid a wrongful denial.
A claimant has an initial responsibility to file a substantially complete application. If he or she does not do so, VA does not have to process the application. VA does, however, have a “duty to notify” the claimant of the information needed to make the application complete enough to process.
Although exactly what makes an application substantially complete is not defined, VA usually requires at least the following minimum information for a substantially complete application: (1) claimant’s name and, if not the veteran, the relationship to the veteran upon whom the application is based; (2) the medical condition(s) claimed; and (3) the claimants signature. Pension claims also require a statement of income before VA will begin processing the claim. Whatever the reason, if VA determines that an application is not substantially complete, VA has to notify the claimant of the information that it believes is needed to complete the application.
Once a substantially complete application has been submitted, VA has a second “duty to notify.” This time VA has to tell the claimant (1) what information is needed to substantiate the claim, (2) what part of that information VA will try to obtain; and (3) what information that the claimant is responsible for providing to VA. Each time a new issue or claim arises, VA has the same duty to notify the claimant of what information is needed and who (VA or claimant) is responsible for obtaining it.
The VA is required to make “reasonable efforts” to obtain a claimant’s military service records, VA medical records, and other pertinent federal records without being asked to do so. If a claimant requests assistance in obtaining records from private physicians and hospitals, VA is required to try to obtain those records as well. However, VA is not required to continue to request or wait for records if it determines that the records do not exist or further efforts to obtain the records would be futile. In addition, VA will not pay for obtaining private medical records.
As a practical matter, VA usually can obtain records from government agencies and the military without significant problems. There are situations, however, where VA does not properly request documents or the documents have been lost or destroyed by another agency. VA must inform a claimant of its failure to obtain relevant records. A claimant can and should submit his or her copy of relevant documents even if VA is technically responsible for obtaining the information because the lack of relevant information can result in denial of an otherwise valid claim.
VA is required to schedule a compensation and pension (C&P) examination for a claimant at the nearest VA medical center unless there is a good reason for not doing so, such as when an expert is required that is not available at the nearest facility or the examination is with a VA medical contractor. VA, however, does not have to provide a medical examination in all cases. The standard for providing a medical examination is usually not difficult to meet. VA, however, can refuse to provide a VA medical examination unless there is some reasonable possibility that an examination will provide information that could be useful in deciding the claim.
In general, to obtain a C&P examination a claimant needs to show a current medical condition, some evidence of potential connection to service, and that available medical evidence is not sufficient to allow a decision on the claim. In other words, the claimant must first provide some reason for VA to believe that a medical examination would be helpful in resolving the claim. A claimant’s own statement that his or her symptoms have continued since service or a previous medical examination report can be enough of a reason.
Should VA schedule a medical examination, a claimant has a duty to report for the examination. In most cases, if the claimant does not show up for an examination, the claim(s) associated with that examination can be denied without further development. There are some reasons for failing to show for a scheduled examination, such as illness or urgent family emergency, that can be excused. Even so, claimants should make every effort to reschedule an examination in advance to avoid problems.
Once VA has gathered all the reasonably obtainable information, including information submitted by the claimant, VA must decide whether or not to grant an award of benefits. In making that decision, VA must consider three other duties owed to the claimant: (1) duty to identify inferred claims, (2) duty to consider all reasonable legal theories, and (3) duty to maximize benefits. In other words, VA has several duties to apply the rules to the facts in a case in whatever way provides the most generous benefits allowed by the law.
These duties do not mean that VA has to look at every possible combination of rules and facts that may be even remotely possible. VA, however, has to review the entire record and apply the applicable provisions of law that are reasonably raised by the evidence. In addition, whether or not new claims are identified, VA must also review the diagnostic codes for the code or combination of codes that results in the highest benefit for the claimant.
Overall, in creating the duty to assist Congress recognized that VA raters are better trained and more experienced with the rules for obtaining benefits than the average claimant. VA must look for claims and grant awards based on all the evidence in the C-file whether or not the claimant asked for the specific benefit. This is a very good reason for claimants to provide as much information as possible when submitting applications or responding to VA requests.
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