The VA's Duty To Assist Claimants

Under its statutory duty to assist claimants, the Veteran’s Administration (VA) is required to assist a veteran in obtaining the evidence necessary for the agency to make a decision on a claim for benefits. In general, VA has a duty to assist a claimant in obtaining all relevant records, to provide medical examinations and, where appropriate for compensation claims, to obtain medical opinions. For example, the VA must obtain the veteran’s service medical records. Further, assistance may include obtaining a medical opinion for the veteran. 38 U.S.C. § 5103A and 38 C.F.R. § 3.159 The VA must also obtain any private or other medical records that the veteran adequately identifies and authorizes the VA to obtain. The VA must make several efforts to obtain any evidence identified by the claimant. The veteran may also submit his or her own medical records. The law also mandates that the VA tell the claimant what evidence is needed to support his/her claim.

If after reasonable effort, the VA is unable to obtain some of the private records listed, the VA must notify the veteran and his/her advocate with a description of any further action that will be undertaken to develop the claim. As for records that are held by federal agencies or departments, the VA is required to continue its efforts to obtain the records unless it is reasonably certain that such records do not exist or further efforts to obtain the records would be useless. The VA’s duty to assist in obtaining records is heightened when federal records, such as a veteran’s service medical records, are lost. 38 U.S.C. § 5103A; see also 38 C.F.R. § 3.159(c)(1)-(3).

The VA’s duty to assist claimants arises from statute.  On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA or the Act) was enacted. The VCAA:

  1. Eliminated the requirement then in 38 U.S.C. § 5107(a) that in order to earn the right to VA assistance in developing the pertinent evidence, a claimant must first submit enough evidence to make his or her claim “well grounded” — thereby overruling longstanding precedents of veteran’s courts;
  2. Amended 38 U.S.C. § 5103 requiring the VA to notify the claimant of any information or evidence necessary to substantiate the claim only upon receipt of a “substantially complete application,” thereby broadening the duty to assist claimants; and,
  3. Added a new section, 38 U.S.C. § 5103A, requiring the VA to make “reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant’s claim”, including the duty to obtain medical records and provide a medical examination and/or opinion if the VA finds the veteran has a current medical disability or symptoms and there is evidence to suggest that the current symptoms or disability may be related to an event, injury, or disease which took place in service.

In Woods v. Peake, 520 F.3d 1345 (Fed.Cir. 2008), the Federal Circuit held that 38 U.S.C. § 5103A(a) “does not always require the Secretary to assist the claimant in obtaining a medical opinion or examination . . . but § 5103A(a) does require the VA to assist a claimant in obtaining a medical opinion or examination whenever such an opinion is ‘necessary to substantiate the claimant’s claim.’ . . . In fact, the statute only excuses the VA from making reasonable efforts to provide such assistance, if requested, when ‘no reasonable possibility exists that such assistance would aid in substantiating the claim.’” Woods at 1347-48.

As a practical matter, the VA often resists providing the assistance required to properly develop a claim due to the agency’s workload or administrative oversight. As a result, advocacy, persistance and grit is often required to persuade the agency to provide the required assistance to disabled veterans.