Did you know that the VA has a duty to assist you with your disability claim? The Veterans Claims Assistance Act was passed by Congress in 2000 and requires that the VA assist you by both notifying you of information necessary to prove your claim, and by helping you obtain the evidence and information necessary to prove your claim. Below we’ll discuss the Veterans Claims Assistance Act and how the VA doesn’t always uphold their end of the deal.
As you might surmise, the VA’s version of help is much different than our version of help. Let’s say I call or write the VA asking for medical records. I’d then get a notice from the VA saying they searched for medical records in Alaska and couldn’t find anything. Well of course they didn’t find anything! I never served in Alaska!
I should mention that the VA does occasionally do a good job of helping Veterans, but more often than not they do the bare minimum. Although the Veterans Claims Assistance Act mandates that they help you, they prefer to kick the can down the road in most cases. My goal is to get them to do everything they can to help you. I want them to go above and beyond to help you with your disability claim.
The Veterans Claims Assistance Act
The Veterans Claims Assistance Act provides that the VA has to make reasonable efforts to help you obtain evidence necessary to substantiate your claim. They also have to make reasonable efforts to obtain relevant records, including any kind of private medical records that you identify and authorize the VA to obtain. The burden is on you to identify those relevant private medical records to the VA so they can go and get them. It’s very important that you try and identify everything that could be used as evidence for your claim.
The VA has a duty to go to whatever Federal agency or department necessary to obtain your records. But what about medical examinations? Do they have a duty to provide a medical exam or obtain a medical opinion when necessary? Yes, but there are some requirements there.
To get the VA to schedule a medical examination for you, you must demonstrate these four things:
1. You must have the competent evidence of a current disability. What are your current symptoms or what is your current disability?
2. You must have evidence that your disease or disability was manifested during service.
3. You must show a connection (aka a “nexus”) between your current condition and your service.
4. There is insufficient evidence in the records, thus the VA needs an additional medical examination to decide your claim.
In those four instances (and all four of them have to be present), the VA will order a medical exam.
The VA Failing to Help Veterans
Despite the Veterans Claims Assistance Act, the VA hasn’t gotten much better at satisfying their duty to help Veterans over the last two plus decades. But even if they were to improve their ability to gather the necessary evidence, you must be proactive at obtaining evidence to support your claim. You must always be proactive!
The VA is not going to do you any favors. They’ll send you a notice saying that you need to get information to them. And when they do, don’t sit on it. Get it done. Being proactive increases the chances that your claim will be granted, especially when it comes to medical evidence. The most important part of the VA duty to assist you involves scheduling you for a medical examination — assuming those four above mentioned things are present.
The VA needs a medical diagnosis and professional medical opinion of your diagnosis, but I recommend not relying on the VA doctors to provide that. You need to generate your own evidence. Get an independent medical opinion and diagnosis that shows the severity of your disability. Then put that information in the hands of the VA. Don’t rely on the VA doctors.
If you’re proactive and obtain your own medical opinion or diagnosis, that’s going to substantially increase the likelihood of your claim being approved. Often times the VA is still going to want an opinion from their own doctors, but at least you’ve got that independent medical opinion in the file. The Veterans Claims Assistance Act requires that the VA notify you of any additional medical information, medical evidence, or lay evidence needed to substantiate your claim.
The Veterans Claims Assistance Act states that they’re supposed to explain what evidence you must obtain on your own and what evidence the VA will obtain on your behalf. But if you think this notice is going to be descriptive and all encompassing, you are sadly mistaken. The notices from the VA are very generic and you only have one year to act after receiving the notice.
PTSD Example
Let’s use a PTSD example to demonstrate all the information that you’d need to provide to the VA. We’ll assume you have PTSD and are seeking an increased rating. You submit documents and evidence that you have PTSD, but what other evidence can you submit?
Let’s say that your PTSD has made it difficult for you to keep a job. If this is the case, get letters from former employers that state why you were terminated at those jobs. For example, a former employer could write that your mood swings made it tough to keep you as an employee. These types of letters will be favorable for your VA disability claim.
Disability Benefit Questionnaires
We previously published a blog on Disability Benefit Questionnaires (DBQs) and why we’re a big proponent of these. DBQs are standard examination forms created for the VA to evaluate your disability. They’re basically a road map for the people who get your application. I always ask my clients to submit DBQs to the VA doctors or their private doctors, so that we can then use them for their disability claim.
DBQs were developed by the VA to streamline the collection of medical evidence for the purposes of processing your claim. According to the VA, they now regularly use DBQs. But I can tell you that is a lie. In the last several weeks, I’ve had several clients tell me that the VA doctors refused to complete a DBQ.
The VA doctors told my clients that “it’s not in their best interest” to complete the DBQ forms. This was quite shocking to me. I thought we were all on the same side with the same goal in mind — to help our Veterans who served our country! It’s extremely upsetting that the VA doctors won’t complete a DBQ form, although Congress has mandated it through the Veterans Claims Assistance Act.
We’re going to continue to push them, but I wanted you to be aware of this problem we’re facing. These DBQs are simple checkbox forms and some doctors prefer to use their own medical notes as opposed to the simplified checkbox forms. But at the same time, VA doctors should not tell Veterans that it’s not in their best interest to complete such a form.
Despite what the Veterans Claims Assistance Act mandates, the VA is not going to help you to the extent that you need. They will help you some, but not as much as they should. Be proactive in obtaining documentation for your claim. Get medical evidence, diagnoses, lay information, etc. Don’t sit on those notices you receive from the VA. Act quickly and give them everything you can to support your claim.
Contact Us So We Can Help!
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