Duty to Assist

The VA benefits claim system is supposed to be a non-adversarial process. Under the provisions of a federal law, the VA has a “duty to assist”, that is, to work with you not against you. This is nice in theory, but in our experience, unfortunately it doesn’t always work this way.  But what is “duty to assist” supposed to mean.

When a VA Regional Office has received your disability claim paperwork and determines that your claim is reasonable, they must help you obtain the evidence that is needed to prove your claim.  This means the agency must make good faith efforts to collect your military service records without you having to ask for them.  If you request it, they must also help you get a hold of your private records from hospitals and healthcare providers. However, we recommend that you get your private medical records on your own and review them before submitting them to the VA.

If the VA determines that the medical evidence doesn’t exist, they are not obligated to continue searching for it.  For this reason, if you are filing a VA disability claim, you should work closely with your attorney to gather all your medical records and any relevant reports and statements which support your claim. In our experience you can never fully rely on the VA to prove your case.

A question I am often asked is, “Does the duty to assist require the VA to schedule you for a Compensation and Pension exam?”  The short answer is no. The VA will only schedule an exam if they believe it will be helpful in resolving a claim. They will order a C&P exam if they believe there is evidence of a disabling impairment and that the impairment was caused or aggravated by your military service. If the VA believes there is sufficient evidence to decide the claim or that an exam would not provide useful information for deciding the claim, it does not have to provide a C&P exam.

The duty to assist does not mean you have no responsibility for your claim. The law requires the VA to assist you with the development of the evidence in support your claim, but if you are seeking benefits, you must be an active participant in the claims process.

As a first step in on the path to VA disability benefits, let me suggest that you call us at Cuddigan Law for a free evaluation of your case. Our team is focused on disability, and we know how to get results.

Sean D. Cuddigan
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SSA and VA Disability Attorney in Omaha, Nebraska