Duty-to-Assist Errors: When VA's Own Mistake Reopens a Decision
What the duty covers
Under 38 U.S.C. § 5103A and 38 C.F.R. § 3.159, VA must make reasonable efforts to obtain relevant records and, when the low threshold is met, provide a medical examination or opinion. A failure in either area is a duty-to-assist error.
Frequent examples
- Federal records — VA facility, service department, or Social Security records — never requested, or abandoned after one attempt without the required notice.
- An examination provided but inadequate: the examiner did not review the claims file, did not address a conceded stressor or exposure, or gave a conclusion without rationale.
- No examination provided even though there was evidence of a current disability, an in-service event, and an indication the two may be related.
- A secondary theory raised by the record but never developed.
Why this matters at HLR
A Higher-Level Review bars new evidence, but it does not bar a finding that VA failed to develop the record. When a senior reviewer identifies a duty-to-assist error, the claim is generally returned for correction, and any resulting grant can carry the original effective date rather than a later one.
Building the argument
Point to the specific record and the specific rule. A useful formulation names the document VA should have obtained, the date it was identified, and where the file shows the request was never made. For examination issues, quote the examiner's rationale and identify what it failed to address.
Where this fits in the record
Compare the evidence list in the decision to what was actually submitted or identified. Gaps in that list are often the clearest evidence of a development failure. The Decision Letter Reader can help translate the narrative, and the duty-to-assist guide covers the framework in more depth.
Procedural arguments do not guarantee an outcome. They do determine whether the record VA decides on is complete.