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Duty to Assist (DTA)

The VA is a very complicated beast, due in-part to this difficulty it has been established that the VA has a duty to assist Veterans when it comes to getting the benefits and recognition they deserve.

Widely speaking, the VAs duty to assist can be broken down into 2 sections:

  1. Obtaining records

  2. Providing a medical examination/obtaining medical opinions

But let it be stated that first and foremost to the duty to assist, is VAs duty to notify.

This foundational notice is known as a '5103 notice' and explains what evidence is needed to properly support your Claim/Appeal. Failure to send this notice is a common duty to assist error. But, if you filed a claim via va.gov or the VA Form 21-526EZ then that notice is 'baked-in' and the VA does not need to send it separately.

SPECIAL NOTE:

  • In the following cases (not a complete list) the VA will stop/not provide duty to assist:

    • Obtaining evidence would not reasonably further the claim;

    • Claims that are inherently incredible or clearly lack merit;

    • Claimant lacks qualifying service, veteran status, or other legal eligibility; or

    • Filing for a benefit for which there is no entitlement as a matter of law.

Obtaining Records

VA will make reasonable efforts (usually 2 attempts) to obtain relevant* records to include records mentioned by the Veteran. These records commonly break down into 5 categories:

  1. Military (medical/personnel)

  2. Federal (non-military)

  3. Private medical

  4. Employment (non-federal)

  5. Other

*relate to the claimed disabilities AND will reasonably further the claim.

IMPORTANT NOTES:

  • VA will NOT pay any fees to obtain records.

  • If the claimant fails to respond in a timely manner (30 days) to a request to provide enough detail to allow the VA to obtain records or complete a Release for medical records, the VA may make a decision without making additional attempts to get those records.

  • VA’s duty to assist generally would not require VA to obtain a court order to secure authority for third-party disclosure.

  • While VA will make a reasonable effort to get these records for you, it is ULTIMATELY the Veteran's responsibility to supply these records to the VA. If the VA is unable to obtain relevant records, the VA has a duty to notify:

    • What records the VA could not get;

    • Explanation of attempts made to get the records;

    • Explanation that after continued efforts to obtain Federal records, concludes that it is reasonably certain they do not exist or that further efforts to obtain them would be futile;

    • A description of any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain; and

    • A notice that the claimant is ultimately responsible for obtaining the evidence.

1. Military (medical/personnel)

Whenever a claim is filed, VA will request your military medical records as a matter of default operations. However, the VA has a strong knack of forgetting to request National guard/Reservist records.

Military personnel records are not always regularly requested by the VA as these records are not always relevant; unless the claim involves PTSD or the claimed condition could be linked to Toxic exposures.

2. Federal (non-military)

Big daddy government.

There are 2 subcategories:

  1. Medical

  2. Non-medical

Medical

Examples would include getting treatment at a military facility after separation, records relating to filing for Social Security Disability, Veteran Affairs Medical Centers (VAMC), and Veteran Centers.

NOTE:

  • VA REQUIRES a Release to obtain records from Veteran centers.

Non-medical

An example would be records relating to former federal employment (non-military) for those who filed a claim for Individual Unemployability.

3. Private medical

Your Kaiser Permanente, local foot doctor, Dr. Pepper, etc.

IMPORTANT NOTES:

  • If you make make mention of getting treatment for your claimed condition at Dr. David and you don't provide a record's Release OR those medical records, the VA has a duty to assist to request you provide those records/release!

    • VA REQUIRES a release to obtain these records, if you do not supply a copy of the records.

4. Employment (non-federal)

If you filed a claim for Individual Unemployability, the VA will reach out to your former employer(s).

5. Other

If you mention someone who knows about your claimed condition be it related to the injury, disease, sickness, or current symptoms. The VA needs to inform the Veteran that they can have the person supply a Buddy statement.

Providing a Medical Examination/Obtaining Medical Opinions

A major part of a claim is the all important medical examination/medical opinion.

Unless the following 3 elements are ALL meet, the VA has NO duty to assist to provide an examination/obtain medical opinions:

Part Element
1. Statement of symptoms (how the condition affects you) OR current diagnosis.
2. An in-service event (documented or Buddy statement condition started in service), or service-connected disability that caused or worsened your disability.
3. A layman would think that 1 and 2 are related (nexus).

For more information on methods of service connection click Here.

IMPORTANT NOTES:

  • There is no duty to assist to conduct a new exam/get a new opinion for Supplemental claims IF the Veteran fails to submit new and relevant evidence with their appeal!

  • If the rater can grant the maximum Scheduler evaluation, an examination is NOT needed.

Standard Procedures

While technically duty to assist doesn’t apply if the chosen benefit isn’t indicated on the application or if the application is otherwise incomplete, the current policy is to assist the claimant with his or her generic/incomplete request for benefits.

Meaning, VA should obtain clarification as to what is being claimed if the claim is vague or inform you if the application is incomplete.

References