The VA benefits claim process can be complicated and lengthy. Sometimes, the trickiest part of filing a claim is collecting the appropriate evidence to support it.
Luckily, veterans don’t have to do this step alone. The VA has what’s called a “VA duty to assist,” meaning it is required to help veterans gather some of the evidence needed to support a disability claim.
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Sometimes, however, VA adjudicators don’t properly follow the department’s duty to assist process. This is known as a VA duty to assist error.
In this article, we’ll break down what duty to assist means, why it matters, and what veterans can do if a VA duty to assist error affects their claim.
In this article about VA duty to assist errors:
VA duty to assist
‘VA duty to assist’ means the VA is required to help veterans gather evidence and to often schedule a medical examination to support their claims. The VA’s duty to assist begins when it receives a veteran’s application for benefits or supplemental claim.
Veterans filing a claim need to tell the VA what type of records they need, the dates of those records, and where to request them from.
There are two basic types of evidence: private records and those that are in the hands of a federal department or agency.
- For federal documents, the VA will make as many requests as is needed to obtain the information. If the information is unavailable, the VA will notify the claimant.
- The VA will typically attempt to obtain private records at least twice. This is known as a reasonable effort. If the records have not been found, or no response is received after a reasonable effort has been made, the veteran will be notified.
You may need to give permission for the VA to obtain these records by filling out form 21-4142, especially if requesting private medical records be gathered on your behalf.
What is a VA duty to assist error?
A VA duty to assist error occurs if the VA doesn’t make a reasonable effort to help a veteran get the evidence needed to support their claim in a prior decision.
A duty to assist error could mean:
- The VA didn’t get or adequately try to get the medical records the veteran requested
- The VA didn’t request a C&P exam or medical opinion the veteran needed for their claim or the examination was inadequate
The VA, the veteran, or their representative may discover and address the duty to assist errors.
What happens when a duty to assist error is found?
If the VA finds an error during a higher-level review, the subsequent decision will allow the VA to gather the evidence they are missing.
If an error is found during a Board Appeal, the Board will usually remand the case, sending it back to the regional office to gather the missing evidence and make a decision on the appeal.
Regardless of how the duty to assist error is found, the VA will inform the veteran a duty to assist error was found and what steps are being taken. Staff will gather the missing evidence and then make a decision on the case.
If a veteran notices the error before the VA does, they can contact the VA or discuss the issue with an attorney.
Is a duty to assist error considered a clear and unmistakable error?
A clear and unmistakable error (CUE) is a specific type of mistake made by the VA at some point of the claims process.
Not all mistakes made by the VA are considered a CUE, and a duty to assist error is not a CUE. In order for a mistake to be considered clear and unmistakable, it must meet all three of the following requirements:
- The person issuing the decision on the claim failed to consider important facts or provisions, or applied them incorrectly.
- The error very clearly affected the outcome of the claim, and anyone would reasonably be able to see this.
- Only laws, provisions, and facts that existed at the time the CUE occurred should be taken into consideration.
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Frequently asked questions
Not all mistakes made by the VA are considered a CUE. A duty to assist error is not a CUE.
VA duty to assist means that the VA is required to help veterans gather evidence to support their claims. This sometimes includes a medical examination. Veterans filing a claim need to tell the VA what type of records are needed, the dates of those records, and where to request them.
Neil Woods
Neil Woods is a VA disability attorney and the owner and president of Woods & Woods. He received his law degree from Western Michigan University.
