DUTY TO ASSIST

1
DUTY TO ASSIST VCAA NOTICE

• Texas Veterans Commission
• Fall Conference 2008

2
OVERVIEW

• Duty to assist defined
• Federal Dept. / Agency records
• Claimants Responsibility
• VAs Responsibility
• Private records
• Claimants Responsibility
• VAs Responsibility
• Veterans Claims Assistance Act Notice
• References

3
DUTY TO ASSIST DEFINED

• When the VA receives a
• substantially complete application
• VA will make a reasonable effort
• to obtain evidence to substantiate
• the claim

4
DUTY TO ASSIST DEFINED (Cont.)

• substantially complete application
• claimants name
• claimants relationship to veteran
• service information
• benefit claimed
• disability(ies) claimed
• claimants or guardians signature
• income for nonservice-connected disability, death
  pension or parents DIC

5
DUTY TO ASSIST DEFINED (Cont.)

• Reasonable Effort
• Federal department or agency
• records are obtained
• certain records do not exist
• further efforts would be futile
• Private
• an initial request
• one follow-up request

6
Federal Dept. / Agency records

• Claimants Responsibility
• provide information to identify / locate
  existing records
• approximate time frame
• for medical treatment records, the condition
  treatment was provided.

7
Federal Dept. / Agency records(Cont.)

• VAs Responsibility for federal records
• as many requests as are necessary to obtain
• service medical records
• VA medical facilities
• non-VA facilities at VA expense
• Social Security Administration
• other Federal agencies

8
Federal Dept. / Agency records(Cont.)

• VAs Responsibility ends
• records are obtained
• reasonably certain that records do not exist
• further efforts obtain records would be futile
• Note VA must receive a response from the
  custodian of the records before assuming it has
  met its duty to assist.

9
Federal Dept. / Agency records(Cont.)

• VAs Responsibility to Veteran if federal records
  are unobtainable
• Identify records unobtainable
• Explain efforts made
• Describe further action

10
Private Records

• Claimants Responsibility
• provide information to identify / locate
  existing records
• approximate time frame
• for medical treatment records, the condition
  treatment was provided.
• VA Form 21-4142, (Release of medical records, one
  completed for EACH doctor or facility.)

11
Private Records (Cont.)

• VAs Responsibility for private records
• After VA receives Form 21-4142
• Initial request
• Follow-Up request
• (VA will wait 30 days between request)

12
Private Records (Cont.)

• VAs Responsibility if private records are
  unobtainable
• At time of follow-up request, VA will
• Notify Veteran of follow-up attempt
• Remind Veteran He/She is ultimately responsible
  for private records
• If records are not obtained, VA will make a
  decision on current evidence

13
VCAA Notice Response

• VCAA Veterans Claims Assistance Act
• Purpose expedite decisions where no additional
  evidence is available
• Two Responses
• No additional information to submit, decide
  ASAP
• Is additional information to submit, wait 60
  days before deciding

14
VCAA Notice Response (Cont.)

• Notes
• Veteran does not have to return form
• (VA will wait 30 days)
• Veteran claims no additional evidence is
  available, but later finds relevant evidence, if
  one year from claim date VA must accept evidence

15
REFERENCES

• Title 38 CFR Part 3, 3.159
• M21-1MR, Part I, Chapter 1
• Fast Letter 05-17
• Fast Letter 06-04
• Veterans Claims Assistance Act of 2000, PL106-475
  

16
Review

• Duty to assist defined
• Federal Dept. / Agency records
• Claimants Responsibility
• VAs Responsibility
• Private records
• Claimants Responsibility
• VAs Responsibility
• VCAA Notice
• References

17

• QUESTIONS?