If you are applying for VA disability benefits or have recently had your application denied, it is crucial that you understand the VA’s duty to assist. Many veterans make the mistake of assuming the duty to assist eliminates the need for legal representation, but this is simply not the case.
When the Duty to Assist Applies to Your Claim
The VA’s duty to assist only applies to your initial claim or a supplemental claim filed as part of the decision review process. It does not apply if you are seeking a higher lever review or have requested a BVA hearing.
How the Duty to Assist Can Result in Unfavorable Evidence
Under the duty to assist, the VA must help you obtain a medical examination to evaluate your disability. However, this will be from a VA provider and not a private medical expert.
Sometimes, attorneys refer to this VA practice as “developing to deny” because an exam will be scheduled with the hopes of obtaining an unfavorable opinion that can be used to deny the request for benefits. Whenever possible, it is recommended that you have private medical evidence to support both your diagnosis and the severity of your symptoms.
Why You Still Need an Attorney
The VA’s duty to assist applies to helping you access records that are relevant to your claim such as VA medical records and military service records. They can also help you obtain existing private medical records, but they will not pay any fees that may be necessary to access this evidence.
The VA is not required to complete the application on your behalf, nor are they required to build a specific argument. The duty to assist was never intended to be a substitute for legal representation.
If the VA did not fulfill its duty to assist as part of your initial application for disability benefits, this might be a relevant issue for your appeal. Your attorney can determine if this should be addressed.
Do You Need to Speak With a Veterans Benefits Lawyer?
If you need to speak with an experienced veterans benefits lawyer, please contact us online, or call our Virginia Beach office to schedule your free consultation. We have offices throughout Virginia, including Chesapeake, Newport News, Norfolk, and Suffolk.