DUTY TO ASSIST & VCAA NOTICE

1. DUTY TO ASSIST &VCAANOTICE Texas Veterans Commission Fall Conference 2008

2. OVERVIEW • Duty to assist defined • Federal Dept. / Agency records • Claimant’s Responsibility • VA’s Responsibility • Private records • Claimant’s Responsibility • VA’s Responsibility • Veterans Claims Assistance Act Notice • References

3. DUTY TO ASSIST DEFINED • When the VA receives a “substantially complete application” • VA will make a “reasonable effort” to obtain evidence to substantiate the claim

4. DUTY TO ASSIST DEFINED (Cont.) “substantially complete application” • claimant’s name • claimant’s relationship to veteran • service information • benefit claimed • disability(ies) claimed • claimant’s or guardian’s signature • income for nonservice-connected disability, death pension or parents DIC

5. DUTY TO ASSIST DEFINED (Cont.) “Reasonable Effort” • Federal department or agency • records are obtained • certain records do not exist • further efforts would be futile • Private • an initial request • one follow-up request

6. Federal Dept. / Agency records Claimant’s Responsibility • provide information to identify / locate existing records • approximate time frame • for medical treatment records, the condition treatment was provided.

7. Federal Dept. / Agency records(Cont.) VA’s Responsibility for federal records as many requests as are necessary to obtain: • service medical records • VA medical facilities • non-VA facilities at VA expense • Social Security Administration • other Federal agencies

8. Federal Dept. / Agency records(Cont.) VA’s Responsibility ends • records are obtained • reasonably certain that records do not exist • further efforts obtain records would be futile Note: VA must receive a response from the custodian of the records before assuming it has met its duty to assist.

9. Federal Dept. / Agency records(Cont.) VA’s Responsibility to Veteran if federal records are unobtainable: • Identify records unobtainable • Explain efforts made • Describe further action

10. Private Records Claimant’s Responsibility • provide information to identify / locate existing records • approximate time frame • for medical treatment records, the condition treatment was provided. • VA Form 21-4142, (Release of medical records, one completed for EACH doctor or facility.)

11. Private Records (Cont.) VA’s Responsibility for private records • After VA receives Form 21-4142 • Initial request • Follow-Up request (VA will wait 30 days between request)

12. Private Records (Cont.) VA’s Responsibility if private records are unobtainable • At time of follow-up request, VA will • Notify Veteran of follow-up attempt • Remind Veteran He/She is ultimately responsible for private records • If records are not obtained, VA will make a decision on current evidence

13. VCAA Notice Response VCAA = Veterans Claims Assistance Act • Purpose – expedite decisions where no additional evidence is available • Two Responses • No additional information to submit, decide ASAP • Is additional information to submit, wait 60 days before deciding

14. VCAA Notice Response (Cont.) Notes: • Veteran does not have to return form (VA will wait 30 days) • Veteran claims no additional evidence is available, but later finds relevant evidence, if one year from claim date VA must accept evidence

15. REFERENCES • Title 38 CFR Part 3, 3.159 • M21-1MR, Part I, Chapter 1 • Fast Letter 05-17 • Fast Letter 06-04 • Veterans Claims Assistance Act of 2000, PL106-475

16. Review • Duty to assist defined • Federal Dept. / Agency records • Claimant’s Responsibility • VA’s Responsibility • Private records • Claimant’s Responsibility • VA’s Responsibility • VCAA Notice • References

17. QUESTIONS?