Despite the title, when President Trump signed the Veterans Appeals Improvement and Modernization Act at the end of August, some important assistance evaporated. In the past, when filing a claim for VA disability compensation, the VA was obligated to help the veteran locate documents pertaining to his service or medical records to help him prove his disability is connected to his military service.
Previous VA Duty to Assist
For example, a veteran could tell the VA approximately which dates a particular incident occurred, and the VA was obligated to procure the pertinent documents that might link the disability to his service (think the deck logs of a certain vessel). This was known as the VA’s “duty to assist,” and it was a great resource for veterans since obtaining these kinds of documents can be difficult, time-consuming and costly. This duty was consistent with the general orientation that the VA is required to have toward vets (i.e., accommodating and helpful).
But this provision has now changed at a crucial point in the process; veterans can still take advantage of the duty to assist at the initial claim phase, but that obligation on the VA disappears after an initial ratings decision has been rendered. Because Veterans aren’t allowed to pay counsel for representation during the initial claim phase, it’s predictable that most veterans will overlook this important assistance until it is too late.
If a veteran wishes to appeal the partial or complete denial of his or her claim—at the time he or she can retain paid counsel—he or she will have to do so without the records help of the VA. If certain documents were not procured and the veteran is sure they do exist, then he or she will have to independently find them.
A Counterproductive Change?
As with most political arguments, what can be alleged to be helpful can, in practice, be counterproductive; in this case, that is decreasing the number of approvals of VA disability claims. The justification here is that now VA employees will be spending less time looking for substantiating documents on behalf of veterans and have more time for processing appeals.
This new development in the appeals process has been criticized by some organizations. For example, the Vietnam Veterans of America recently said, “It hardly seems like a pro-veteran system where an adjudicatory body knows of possible helpful information for a claimant but is not able to act on this knowledge in a helpful way to the veteran.”
What is your takeaway from this news? Be sure to insist on VA assistance in locating documents pertaining to your military service and medical records when you file your initial claim for VA disability benefits— before you lose your right to request that assistance.
This article was written by Brad Harris, Attorney at Law, of the Harris Federal Law Firm. He can be reached at brad@harrisfederal.com or toll-free at (877) 226-2723.
