A VA Duty to Assist Error occurs when the VA fails to meet its legal obligation to gather the necessary evidence to support a veteran's disability claim. This means the VA didn't make a reasonable effort to help the veteran obtain the evidence needed, such as medical records or claim exams. Essentially, the VA has a responsibility to assist veterans in developing their claims, and a failure to do so can lead to an error in the decision-making process.

If the VA overlooks this duty—such as by not requesting key records or failing to schedule a required C&P exam—it may be considered a Duty to Assist Error, and the decision can be challenged or sent back for correction.

VA’s Duty to Assist means that they’re required to help you gather evidence to support your claim for VA benefits. They will make a reasonable effort to help you get these types of evidence:

• VA medical records

• Military service records

• Other types of federal records

• Private medical records, like reports from a non-VA hospital or from your private health care providers

You’ll need to tell the VA what type of records you want them to gather for you, the dates of the records, and where the VA can get them.

To help the VA decide your claim, they may also ask you to have a claim exam (also called a C&P exam). Or they may request a medical opinion.

“Reasonable effort” as defined by the VA:

• For VA, military, and other types of federal records, they’ll continue to make requests until they get the records you need. They’ll stop trying only if they’re reasonably sure the records don’t exist.

• For private records, they’ll make at least one follow-up request to try to get your records. If they can’t get the records you need, they’ll tell you why they’re having trouble and if you need to do anything.

• Failure to obtain identified records: If a veteran provides information about specific records needed for their claim (e.g., medical records, personnel records), the VA has a duty to make reasonable efforts to obtain them

• Failure to schedule necessary exams: If the evidence suggests the veteran may have a disability and there's a link to service, the VA should schedule a Compensation and Pension (C&P) exam

• Not identifying and addressing potential claims: The VA should also identify any related claims that might be supported by the evidence, even if not explicitly claimed by the veteran

The VA may find this type of error when they’re reviewing the decision you received on a claim because you requested a Higher-Level Review or Board Appeal.

According to VA:

If found during a Higher-Level Review: the VA will close the review and open a new claim to gather the missing evidence. They will also send a letter to tell you the steps they will take to fix the error. Then they help you get the missing evidence, and decide your case based on this new evidence.

If found during a Board Review: the VA will close the appeal and send your case back (also called “remand”) to a regional office to gather the missing evidence. They will also send you a letter to tell you the steps we’ll take to fix the error. After they gather the missing evidence, they will decide your case.

If a Duty to Assist Error is identified, the claim can be remanded (sent back) so the VA can correct the mistake and properly develop the case. This is especially common during Higher-Level Reviews or when the Board of Veterans’ Appeals reviews an appeal.

A VA-accredited representative can spot these errors and help ensure your claim is fully and fairly developed before the VA makes a final decision. We have attorney’s and representatives here at Greene & Marusak that can help you with this.

Give us a call at (844) 483-8737