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3.3. Duty to Assist
In requiring the VA benefits system to be a "non-adversarial" process, Congress has imposed on VA a "duty to assist" claimants. The most significant VA duties are discussed below. In general, VA is required to notify a claimant of what information is required to obtain an award of the benefits requested. VA also has a duty to obtain a veteran's service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that reasonably may contain information supporting the claim. These duties significantly ease the burden on claimants in assembling the evidence needed to support a claim.
The duty to assist, however, does not mean a claimant has no responsibility for his or her claim. Even if a claim satisfies the minimum threshold for the duty to assist to apply, the law requires VA only to "assist" a veteran with the development of the evidence in support of his or her claim: there are limits on what VA has to do to help a veteran. A claimant seeking a benefit, still has a responsibility to be an active participant in the claims process if he or she wants to be successful.
VA has other duties that can be helpful to claimants in certain circumstances. If an award is made, VA has a duty to look for ways to maximize the benefit paid to a claimant based on the evidence. This means that VA has to consider all the possible diagnostic codes that could apply and base an award on the code or codes that result in the highest payment. VA also has to identify and grant awards for "inferred" claims, which are claims that the evidence supports but the claimant did not specifically request. Both of these duties make it easier for veterans to receive the greatest benefit possible without having to be an expert in VA law.
A claimant also needs to keep in mind that, the duty to assist aside, VA also has responsibilities to follow the law and to prevent improper awards. As a practical matter, this means that the system eventually becomes "adversarial" when VA decides that an award cannot be granted. Further, the huge backlog of claims has strained VA's resources and continues to result in a high rate of errors. For these reasons, claimants should remain actively involved in their claims and maintain a healthy skepticism of VA decisions throughout the process to avoid a wrongful denial.
DUTY TO PROVIDE NOTICE
A claimant has an initial responsibility to file a substantially complete application. If he or she does not do so, VA does not have to process the application. VA does, however, have a "duty to notify" the claimant of the information needed to make the application complete enough to process.
Although exactly what makes an application substantially complete is not defined, VA usually requires at least the following minimum information for a substantially complete application: (1) claimant's name and, if not the veteran, the relationship to the veteran upon whom the application is based; (2) the medical condition(s) claimed; and (3) the claimants signature. Pension claims also require a statement of income before VA will begin processing the claim. Whatever the reason, if VA determines that an application is not substantially complete, VA has to notify the claimant of the information that it believes is needed to complete the application.
Once a substantially complete application has been submitted, VA has a second "duty to notify." This time VA has to tell the claimant (1) what information is needed to substantiate the claim, (2) what part of that information VA will try to obtain; and (3) what information that the claimant is responsible for providing to VA. Each time a new issue or claim arises, VA has the same duty to notify the claimant of what information is needed and who (VA or claimant) is responsible for obtaining it.
Section 5103A notification requirements cannot be met through a combination of unrelated decisional and postdecisional communications. Mayfield v. Nicholson, 444 F.3d 1328, 1335 (Fed. Cir. 2006). Section 5103 requires VCAA notification to be issued "prior to the initial decision of the claim, not afterwards." Id. at 1333.
The Court must assess the Board's notification analysis as a whole to adequately determine whether a factual finding regarding 38 U.S.C. § 5103(a) notification had been made by the Board in the first instance. Prickett, 20 Vet. App. at 375-76; Yarbrough v. Nicholson, 21 Vet. App. 512 (2006). The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review. Nolen v. Gober, 14 Vet. App. 183, 184 (2000).
DUTY TO OBTAIN RECORDS
The VA is required to make "reasonable efforts" to obtain a claimant's military service records, VA medical records, and other pertinent federal records without being asked to do so. If a claimant requests assistance in obtaining records from private physicians and hospitals, VA is required to try to obtain those records as well. However, VA is not required to continue to request or wait for records if it determines that the records do not exist or further efforts to obtain the records would be futile. In addition, VA will not pay for obtaining private medical records.
As a practical matter, VA usually can obtain records from government agencies and the military without significant problems. There are situations, however, where VA does not properly request documents or the documents have been lost or destroyed by another agency. VA must inform a claimant of its failure to obtain relevant records. A claimant can and should submit his or her copy of relevant documents even if VA is technically responsible for obtaining the information because the lack of relevant information can result in denial of an otherwise valid claim.
"The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A(a)(1). Gardner v. Shinseki, 22 Vet. App. 415, 421 (2009) ("Accordingly, the Secretary's duty to assist applies to all claimants, regardless of whether they have established veteran status."). VA is statutorily required to "make as many requests as are necessary" to obtain a veteran's relevant service records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2); see Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); see also Murincsak v. Derwinski, 2 Vet. App. 363, 373 (1992) ("There is a continuing obligation upon the VA to assist the veteran in developing the facts of his claim throughout the entire administrative adjudication.").
Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, the Secretary is required to inform the claimant of the information and evidence not of record that:
(1) is necessary to substantiate the claim,
(2) the Secretary will seek to obtain, if any, and
(3) the claimant is expected to provide, if any, and to request that the claimant provide any evidence in his possession that pertains to the claim.
See 38 U.S.C. § 5103(a); Pelegrini v. Principi, 18 Vet. App. 112, 119, 121 (2004); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b). This duty includes making "reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(b)(1). If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that "identif[ies] the records that the Secretary was unable to obtain," "briefly explain[s] the efforts that the Secretary made to obtain those records," and "describe[s] any further action to be taken by the Secretary with respect to the claim." 38 U.S.C. § 5103A(b)(2). These requirements also apply to private documents.
But, the "duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). VA's duty to assist includes making "reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit." 38 U.S.C. §§ 5103A(a)(1), (b); cf. The Board's determination whether VA fulfilled its duty to assist generally is a finding of fact that the Court reviews under the "clearly erroneous" standard of review. See Nolen v. Gober, 14 Vet. App. 183, 184 (2000); Gilbert v. Derwinski, 1 Vet. App. 49, 52 (1990).
DUTY TO OBTAIN LOST OR MISSING RECORDS
VA's duty in cases involving lost records is to seek out alternative sources for obtaining the lost records. Cromer v. Nicholson, 455 F.3d 1346, 1351 (Fed. Cir. 2006). Pursuant to 38 U.S.C. section 5103A, the Secretary is required to "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for benefits." 38 U.S.C. §§ 5103A(a), (b). Where a claimant's records are lost or destroyed, VA has a "heightened" duty to assist the claimant that includes advising him that his records were lost, advising him to submit alternative forms of evidence to support his claim, and assisting him in obtaining his alternative evidence. Washington v. Nicholson, 19 Vet. App. 362, 370 (2005); Dixon v. Derwinski, 3 Vet. App. 261, 263 (1992).
However, the Court cannot grant an appellant's claim solely because his records were lost because that remedy "would amount to a judicial amendment of the statutory duty to assist-a measure beyond the power of this court." Id. at 1351. A veteran bears the burden of showing error on this issue. See Hilkert v. West, 12 Vet. App. 145, 151 (1999) (holding that the appellant bears the burden of demonstrating error); Berger v. Brown, 10 Vet. App. 166, 169 (1997) (holding that an appellant "always bears the burden of persuasion on appeals to this Court").
When medical records are lost, it warrants a heightened duty by the Secretary and the Board to assist and explain the Board's findings. See Vazquez-Flores, supra; see also Cromer v. Nicolson, 455 F.3d 1346, 1351 (Fed. Cir. 2006) ("[I]n cases involving lost records, the Board has a heightened duty to explain its findings."); Daye v. Nicholson, 20 Vet. App. 512, 515 (2006) (where appellant's records not available, the duty to assist and fully explain reasons and bases is heightened); Stegall, supra; see also Russo v. Brown, 9 Vet. App. 46, 51 (1996) (holding that the Court's caselaw establishes a "heightened duty" to assist when the appellant's medical records have been lost or destroyed); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992) (holding that the Board's duty to assist a claimant in developing his claim is heightened in cases in which the appellant's SMRs are lost or destroyed "and includes the obligation to search for alternate medical records"); Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) (holding that VA's duty to assist is "particularly great in light of the unavailability of the veteran's exit examination and full Army medical records").
DUTY TO PROVIDE MEDICAL EXAMINATION
VA is required to schedule a compensation and pension (C&P) examination for a claimant at the nearest VA medical center unless there is a good reason for not doing so, such as when an expert is required that is not available at the nearest facility or the examination is with a VA medical contractor. VA, however, does not have to provide a medical examination in all cases. The standard for providing a medical examination is usually not difficult to meet. VA, however, can refuse to provide a VA medical examination unless there is some reasonable possibility that an examination will provide information that could be useful in deciding the claim.
In general, to obtain a C&P examination a claimant needs to show a current medical condition, some evidence of potential connection to service, and that available medical evidence is not sufficient to allow a decision on the claim. In other words, the claimant must first provide some reason for VA to believe that a medical examination would be helpful in resolving the claim. A claimant's own statement that his or her symptoms have continued since service or a previous medical examination report can be enough of a reason.
Should VA schedule a medical examination, a claimant has a duty to report for the examination. In most cases, if the claimant does not show up for an examination, the claim(s) associated with that examination can be denied without further development. There are some reasons for failing to show for a scheduled examination, such as illness or urgent family emergency, that can be excused. Even so, claimants should make every effort to reschedule an examination in advance to avoid problems.
As part of his duty to assist, the Secretary must "make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit" including a medical examination. 38 U.S.C. § 5103A(a)(1). The Secretary must provide a medical examination or obtain a medical opinion "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1). VA must provide a medical opinion or examination if the information and evidence of record does not contain sufficiently competent medical evidence to decide the claim, but there is:
(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability;
(2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and
(3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability.
McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 C.F.R. § 3.159(c)(4)(i). The requirement that the evidence indicate that a condition "may be associated" with service establishes a "low threshold." McLendon, 20 Vet. App. at 83.
When deciding whether an examination is necessary, the Secretary shall consider the evidence of record, "taking into consideration all information and lay or medical evidence (including statements of the claimant)." 38 U.S.C. § 5103A(d)(2). "The Board's ultimate conclusion that a medical examination is not necessary pursuant to section 5103A(d)(2) is reviewed under the 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' standard of review." McLendon, 20 Vet. App. at 81.
Generally, section 5103A notice must be given on "all five elements of a claim for service connection," which include:
(1) veteran status;
(2) existence of disability;
(3) service connection of disability;
(4) degree of disability; and
(5) effective date of disability.
38 U.S.C. § 5103(a); Dingess v. Nicholson, 19 Vet. App. 473, 487 (2006) (consolidated with Hartman v. Nicholson, No. 02-1506), aff'd in part sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed.Cir.2007)); see also D'Amico v. West, 209 F.3d 1322, 1327 (Fed. Cir. 2000) (noting the five elements of a claim for service connection).
DUTY TO IDENTIFY INFERRED CLAIMS
Once VA has gathered all the reasonably obtainable information, including information submitted by the claimant, VA must decide whether or not to grant an award of benefits. In making that decision, VA must consider three other duties owed to the claimant: (1) duty to identify inferred claims, (2) duty to consider all reasonable legal theories, and (3) duty to maximize benefits. In other words, VA has several duties to apply the rules to the facts in a case in whatever way provides the most generous benefits allowed by the law.
These duties do not mean that VA has to look at every possible combination of rules and facts that may be even remotely possible. VA, however, has to review the entire record and apply the applicable provisions of law that are reasonably raised by the evidence. In addition, whether or not new claims are identified, VA must also review the diagnostic codes for the code or combination of codes that results in the highest benefit for the claimant.
Overall, in creating the duty to assist Congress recognized that VA raters are better trained and more experienced with the rules for obtaining benefits than the average claimant. VA must look for claims and grant awards based on all the evidence in the C-file whether or not the claimant asked for the specific benefit. This is a very good reason for claimants to provide as much information as possible when submitting applications or responding to VA requests.