Congress requires VA to assist a veteran with gathering certain evidence. This is know as VA’s “duty to assist.” The duty is not unlimited and, importantly, does not require VA to obtain evidence that is favorable to a claim. Often VA gathers evidence which goes against the claim.
VA’s duty generally requires it to gather three categories of records:
- Private records
- Government records
- Medical examinations or opinions
VA “shall make reasonable efforts to obtain relevant private records that the claimant adequately identifies to the Secretary.” 38 U.S.C. § 5103A(b). Typically this comes in the form of private medical records. A veteran can request VA obtain on their behalf records from a private medical facility. VA generally must make at least two attempts to obtain the records. VA must also provide written notice to the claimant when VA cannot obtain the records.
Congress requires VA obtain a veteran’s service treatment records. VA is also required to obtain records “pertaining to the claimant’s active . . . service that are held or maintained by a governmental entity.” 38 U.S.C. § 5013A(c). This aspect of the duty to assist is most helpful with the in-service event, injury, or disease requirement for service connection. A veteran’s service treatment records can show diagnosis, treatment, or complaints of symptoms for conditions the veteran now claims service connection. The service record can corroborate a veteran’s testimony regarding locations served, awards received, and provide useful context to support a veteran’s claim.
VA’s duty to obtain government records includes VA treatment records and records from private facilities for which VA footed the bill.
Lastly, VA’s duty to assist includes obtaining “relevant records held by any Federal department or agency.” Thus, if the veteran identifies relevant records in the possession of the federal government (e.g. social security records or records held by the Department of Defense), VA must obtain those records.
VA’s duty to assist also includes “providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.” 38 U.S.C. § 5103A(d). These examinations are referred to as “Compensation & Pension” exams, or “C&P Exams.” The forms used by VA’s examiners are called Disability Benefits Questionnaires, or “DBQs.”
Pro Tip: VA’s duty is limited to getting a medical exam or opinion. The duty doesn’t require VA to get a favorable medical opinion. Nor does it require VA to only get favorable medical records.
Can I get my own examination?
Yes! A veteran does not have to rely on VA’s C&P examination. If the VA’s C&P examination comes back negative, a veteran will almost always have to counter that negative opinion with their own privately-obtained positive opinion.
But there are steps a veteran can take to ensure a C&P examination captures all of the information needed by VA to reach a favorable decision. At a minimum, we recommend the veteran become familiar with the rating criteria before the examination. You can read more about the rating charts here. Knowing the relevant symptoms will help the veteran answer the examiner’s questions.
Did VA Get a Bad C&P Exam?
We can perform a free review of your claim file to make sure you have all the right evidence needed to substantiate your claim. Contact us so we can get a copy of your claim file from VA and review the file.