What is a “Duty to Assist” When it Comes to VA Disability?

    

If you are a Veteran currently receiving VA disability benefits, you may, at times, be frustrated by the process. As with working with many large governmental agencies, working with the Veteran’s Administration can be a tedious process. Congress, in response to this consideration, imposed a “duty to assist” for the VA to best assist Veterans with their claims. This means that it is mandated by law that the VA works to help Veterans receive their benefits and that the VA doesn’t work as an adversary against your claim. 

Although the VA is required to help you, this doesn’t mean that things never fall through the cracks. It means that the VA has a standard process of how they must communicate with claimants to show that they are a “non-adversarial” partner in the Veteran’s VA disability claim. 

What does this mean to you, a Veteran, who is looking to qualify for VA disability, increase your current benefit, or appeal your decision? 

More than anything, it means that although the VA is required to work with you, it does not mean that their job is to advocate on your behalf. 

Every Veteran is Responsible for Their Own Claim

In short, you must take the initiative to follow-up on your claim. The VA needs--and wants--for you to be proactive in your quest for benefits. For example, in general, the VA will do an initial request for records and one follow-up request for records. After two courtesy attempts for records, they legally have the right to stop. It’s then up to you to make sure that you have the records you need if you are seeking an increase in your VA disability benefits. 

The VA has a duty to obtain your service records, service medical records, VA treatment records, and any other government records (such as Social Security Administration records) that may contain information to support your claim. The goal of this assistance is to ease the burden on you as you attempt to assemble the evidence needed to support your claim. 

Applying for Benefits

First, you should contact your VA Regional Office, also known as VARO. At the VARO, you can be assisted in applying for benefits. 

NOTE: As of March 19, 2020, all VARO offices are closed due to the coronavirus outbreak. 

Sometimes VA develops the case as they go. As a claimant, be ready to expect VA to help you, and also expect that you will need to be proactive. After two courtesy tries, they have the right to stop. 

Organizing Your ClaimOrganizing Your Claim

Whether you are filing a claim for the first time, reapplying for additional benefits, or appealing a claim decision, it’s important that you maintain your service records, service medical records, VA treatment records, and any other governmental records relevant to your claim. It’s important to keep good paper records as well as a record of all digital correspondences. Some tips:

  • Scan important documents with your smartphone by using apps like Scannable.
  • Make a master “things-to-do” list and check items off when you meet their deadlines. Keep in mind that many duties connected to your claim are time sensitive. Don’t procrastinate, and stay on task. 
  • Keep a paper file of all notes regarding communication with your doctors, the VA, and your attorney. 
  • Keep all mail from the VA, even if it doesn’t seem important at the time. 
  • Stay up to date as the laws change regarding VA disability. The laws changed in February, 2019, regarding the appeals process, for example. A VA disability attorney can help you stay up to date. 

Why Would I Need an Attorney for VA Disability?

  1. If your initial claim has been denied.
  2. If you believe that you should receive a better result than you did initially. 
  3. If your disability didn’t rate as high as you believe it should have. 

In addition, if you’ve missed deadlines, have had significant changes to your medical status, or have felt that technical errors have lead to the denial of your claim, an experience VA disability attorney can advise you regarding filing a Notice of Disagreement (NOD) with the VARO that issued the denial. 

Can I Also File for Social Security Disability?

Since 2014, Veterans who have a VA compensation rating of 100%, permanent and total (P&T) may receive expedited processing for Social Security Disability Insurance. Veterans have found, however, that even having a 100% rating from the VA doesn’t ensure that you will receive disability benefits from the Social Security Administration. You must still meet the specific listings for Social Security Disability in order to receive benefits. To start, begin an application with the Social Security Administration and contact Affleck & Gordon for advice. 

Affleck & Gordon offers free claim evaluations and can advise you regarding your VA disability claim and make sure that you qualify for VA disability. Helping veterans receive their disability benefits is a primary area of practice. Serving Metro Atlanta and greater Columbus, the attorneys with Affleck & Gordon care deeply for their clients and assist them with problems that may arise with their disability claim. 

If your VA Disability claim or your SSDI claim was denied, or you’re thinking about filing and don’t know where to start, Affleck & Gordon can help. We’ve been helping people in Georgia just like you for decades. Sign up for a free case evaluation here, or call us (404) 373-1649.

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