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VA Duty to Assist in Acquiring Evidence

The VA has a "duty to assist" in the development of a veterans claim for disability compensation.  I will try and explain what this means as it pertains to getting records in a veterans disability claim.

Even though the Veteran's Administration has this duty if you want your claim to be fully developed and resolved as quickly as possible it is a good idea to help obtain all your relevent medical records and other evidence you need for your claim.

The VA Duty to Assist in Getting Records for a Veterans Disability Claim. 

"The Secretary must make reasonable effort to assist claimant in obtaining evidence necessary to substantiate the claimants claim for benefits under a law administered by the secretary."  38 U.S.C. 5103 A.  The standard by which the VA must apply this is slightly different depending on whether the records sought are federal records or not.

For federal records the VA must make continued reasonable effort to try and obtain those records.  The VA can stop pursuing the records only after they are reasonably sure the records the records don't exist or that a continue effort to get the records would be futile.  38 U.S.C. 5103 A (b)(3).  Even if VA for the above reason stops attempting to get records they have an obligation to notify the claimant and inform the claimant of possible alternatives to those records.

For other than federal records such as private doctor records the VA must make reasonable efforts to get them.  The Veterans Administration must send a request for the records and if they don't get them after 2 months they must make another request.  They are then supposed to continue to request the records if they have "reason to believe" the records could be acquired.  It is particularly important that you help or get the records yourself when dealing with non-federal records becasue it is not uncommon for doctors or other medical institutions to ignore these request or react extremely slow to them.

For the Veterans Administration to fullfill its obligation there must be record of their attempts to get the records in the file.  If there is no record of their attempts then it is grounds for a remand.

There is a "heightened duty" when the records held by a federal institution are missing or destroyed.  Washington v. Nich Olsen 19 Vet. App. 362, (2005).  The most well know example of this is the fire in St Louis that destroyed many veterans records.

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It is extremely important that you notify the VA of any records that may be relevent to your claim this will trigger the VAs duty to assist on those records.

We have attempted to provide up to date and accurate information, however the information in this site is not guaranteed. No attorney client relationship exist. The information in this site is not a substitute for consultation with a qualified attorney.
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