VA's Duty to Assist — What VA Must Do to Help Develop Your Claim

What VA must obtain

VA must continue trying to obtain federal records until it concludes they do not exist or further efforts would be futile — and then it must notify you in writing.

• Service treatment records and personnel records held by a federal custodian.
• VA medical center and Vet Center treatment records you identify.
• Social Security Administration records when relevant to the claim.
• Private treatment records — after you authorize release with VA Form 21-4142 / 21-4142a. VA must make reasonable efforts, generally including a follow-up request.

When VA must schedule an examination

The McLendon v. Nicholson (CAVC 2006) four-part test governs. VA must provide an examination or obtain an opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms; (2) evidence of an in-service event, injury, or disease; (3) an indication the disability or symptoms may be associated with service; and (4) insufficient competent medical evidence for VA to decide the claim. The 'indication' element is a low threshold and can be satisfied by credible lay evidence of continuity of symptoms.

What the duty to assist does not cover

• It does not shift the burden of proof — you still must show entitlement on the evidence of record.
• It does not require VA to obtain records you never identify.
• It does not apply to Higher-Level Review or Board lanes in the same way: after an initial decision, the duty to assist generally does not attach to the HLR or Board lane except to correct a pre-decisional error. A Supplemental Claim restores it.

Raising a duty-to-assist error

If VA decided the claim without obtaining identified records or without providing a required examination, a Higher-Level Review (VA Form 20-0996) is the lane built to identify and correct that duty-to-assist error. The reviewer can return the file for correction. If you have obtained new evidence yourself, a Supplemental Claim (VA Form 20-0995) is the lane that adds it to the record.

Common pitfalls

• ×Not listing every provider and facility on the claim, which leaves records VA has no obligation to look for.
• ×Letting a VA Form 21-4142 authorization lapse before VA sends its request.
• ×Assuming VA will find records that are held privately without an authorization.
• ×Missing a scheduled examination, which can result in a decision on the existing evidence under 38 CFR § 3.655.

Frequently Asked Questions

References & sources

1. 38 CFR § 3.159
2. 38 CFR § 3.655 — Failure to report for examination