Duty to Assist Errors: When the VA Drops the Ball

What the Duty to Assist Requires

Under 38 CFR § 3.159, the VA must make reasonable efforts to obtain records relevant to your claim and provide a medical examination when one is required to decide it. The VA must also notify you when records cannot be obtained so you can submit them yourself.

Common Duty to Assist Errors

• Failing to request service treatment records or personnel records.
• Failing to schedule a C&P exam when the record contains evidence of in-service injury and a current diagnosis.
• Accepting an inadequate exam without ordering a clarification.
• Failing to consider all conditions you reasonably raised.
• Failing to obtain a medical opinion on secondary service connection.

How to Cite a Duty to Assist Error

The cleanest path is a Higher-Level Review (VA Form 20-0996) with the box checked for a Duty to Assist error. Identify the specific failure (e.g., 'VA did not request my unit personnel records' or 'C&P examiner did not address aggravation') in the comments section.

If the senior reviewer agrees, the claim is sent back for correction with the original effective date preserved. This is one of the most underused tools in the modern appeals system.

Why This Is Different From a Weak-Evidence Denial

A Duty to Assist error isn't about your own evidence being insufficient — it's about the VA failing to complete steps it was legally obligated to take on your behalf. That distinction changes the fix entirely: instead of gathering additional evidence yourself, you're pointing out that the VA needs to finish work it never actually did, which is why this path requires no new submissions from you at all.

Common mistakes to avoid

• Vague allegations of error without pointing to the specific failure.
• Submitting new evidence with an HLR (it's not allowed — file a Supplemental Claim instead).

Frequently asked questions