What is a VA duty-to-assist error?

Q: What is a VA duty-to-assist error?

A duty-to-assist error occurs when VA fails to meet its obligation under 38 U.S.C. § 5103A and 38 CFR § 3.159 to help a claimant obtain evidence — for example, not obtaining federal records it was on notice of, not following up on identified private records, or not providing an examination when the evidence indicated one was needed. In the AMA system, a Higher-Level Review reviewer may identify such an error and return the claim for correction under 38 CFR § 3.2601.

Last verified August 16, 2026 · Reviewed by Esteban Magallon, VA-Accredited Claims Agent

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Federal records: VA must continue efforts until the records are obtained or shown not to exist.
Private records: VA must generally make an initial request and one follow-up after proper authorization.
Examinations: required when there is a current disability, an in-service event, an indication the two may be associated, and insufficient evidence to decide (McLendon v. Nicholson).
New evidence cannot be submitted with a Higher-Level Review; that belongs in a Supplemental Claim under 38 CFR § 3.2501.

This is general educational information about VA claims — not legal or medical advice. Individual outcomes depend on the record. Oakridge Claims is a private VA-Accredited Claims Agent practice and is not affiliated with the U.S. Department of Veterans Affairs.

What is a VA duty-to-assist error?

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