The VA benefits claim system is unique because it is supposed to be a “non-adversarial” process. In theory, this means that the VA is required to work with you, not against you. Unfortunately, this is not always the case. Too many times, we find that the VA has not satisfied its responsibility to help veterans with their cases. It can be a mistake to rely solely on the VA’s assistance to develop your claim.
The VA Duty to Notify
The VA actually owes veterans two separate legal duties: a duty to notify and a duty to assist. When a veteran files a claim, the VA must send a notice, sometimes called a 5103 notice after the statute that requires it, telling the veteran what evidence is needed to support the claim.
That notice must say which evidence the veteran is expected to provide and which evidence the VA will try to obtain on the veteran’s behalf. For example, VA must inform the veteran about medical or lay evidence necessary to substantiate the claim and who is responsible for obtaining that information.
The duty to notify does not apply in every situation. Under current VA regulation, the VA does not owe a fresh notice when a veteran files a supplemental claim within one year of a prior decision, when a veteran requests a higher-level review, when a veteran files a Notice of Disagreement, or when the claimed benefit cannot be granted as a matter of law no matter what evidence is submitted.
The Duty to Notify Extends to the Decision Letter
Once the VA decides a veteran’s claim, 38 CFR 3.103(f) requires the decision letter itself to include identification of the issues decided, a summary of the evidence considered, a summary of the laws and regulations applied, and any findings made in the veteran’s favor. For a denied claim, the veteran must be notified as to which specific element was not met, the criteria needed for service connection or a higher rating if that applies, an explanation of how to access the evidence VA used, and a summary of the veteran’s review options.
Under 38 CFR 3.103(b)(1), that same letter also has to tell the veteran about the right to a hearing, the right to representation, and the procedures and deadlines for a Higher-Level Review, Supplemental Claim, or Board appeal.
What Happens If the Decision Letter Was Incomplete?
If your decision letter is missing one of those required elements, you may be able to argue that the decision never became final, even though the normal appeal deadline appears to have passed. A serious notice defect can affect whether a decision became final, but not every omission from a VA decision letter has that effect.
Under Hamill v. Collins, an AMA decision must at minimum give explicit notice that the particular issue was adjudicated and how VA decided it. A decision that provides that notice may still be appealable even if it fails to include another item required by 38 U.S.C. § 5104(b). Other notice deficiencies generally must be challenged through the available review process.
The VA May Have Failed to Notify You Too
From February 19, 2019 through approximately September 2024, the VA’s standard Form 20-0998 attachment (the page explaining review options) omitted the right to a hearing in the supplemental claim process specifically. Every supplemental claim denial issued during that window may have gone out with an incomplete decision letter.
(The Court did not hold that EVERY decision using the old form was legally defective or nonfinal. This is a claimant-specific inquiry as to whether the claimant otherwise had actual notice.)
If your decision was still open as a matter of law when the VA treated it as closed, you could still be entitled to back pay tied to your original claim date rather than a later one. Learn more about insufficient notice in supplemental claims and check your own decision letters for this defect.
Additionally, the VA recently acknowledged that its automated appeals-tracking system wrongly closed thousands of appeals between 1990 and 2025 without sending a notice to the affected veterans. On August 19, 2026, the Veterans Court approved a settlement in Freund v. Collins and VA is now required to audit and reactivate those cases.
See our guide on VA claims closed without an update if you filed an appeal years ago and never heard back or talk to us to get a free evaluation and see where you stand.
The VA Duty to Assist
An important part of the VA’s duty to assist veterans is to help obtain records, including service personnel and medical records as well as current VA and private medical records. The VA’s duty to assist in gathering records arises from the simple fact that the government is often in a much better position to obtain certain evidence than is the veteran.
For instance, the government has knowledge about the whereabouts of certain records and has access to records that many veterans may not know how to obtain on their own. That is not to say that veterans should not make the attempt to get their own records. We often use private researchers to obtain such records with great success.
While the VA is required to help veterans in obtaining their personnel and service medical records, all too often we see claims files where the VA either did not even bother to request the complete records or did not put forth the best efforts in following up on those records. Ultimately, it is the veteran, and not the VA, who is hurt if his or her records are not found.
It is also very important to make sure that the VA has the necessary information so that it can make the appropriate requests. The veteran should provide the VA with all the information available about the time and place of service as well as the in-service circumstances leading to the disability. The VA may use a veteran’s failure to provide such information as an excuse for not assisting that veteran any further with his or her claim.
What Happens When the VA Can’t Find the Records?
The VA does not get to simply give up on a record search without telling the veteran. If the VA makes reasonable efforts to get a veteran’s private records but cannot obtain them, or if it concludes that federal records do not exist or that further requests would be futile, the VA must notify the veteran of that fact.
That notice has to identify which records the VA could not get, explain what the VA tried, describe what will happen next (typically that the VA will decide the claim on the evidence already in the file), and say that the veteran is ultimately responsible for getting those records in if they still want them considered.
If the VA later learns that relevant records exist before deciding the claim, it has to tell the veteran and ask the veteran to authorize their release, often on a VA Form 21-4142 for private treatment records. If the military itself cannot locate your service treatment records, you still have options. See what to do if the military lost your records.
The Duty to Assist with C&P Exams
The VA’s duty to assist also makes the VA responsible for providing veterans with medical examinations when such examinations are necessary for a veteran to prove his or her case. In order for the VA’s duty to be triggered, the veteran must first satisfy a minimum standard consisting of showing that some event did happen to the veteran in service, that the veteran now has a current disability or persistent and recurrent symptoms, and that there is at least some indication that the event in service is related to the current disability.
In addition, VA must determine that there is insufficient competent medical evidence already of record to decide the claim. Supplemental claims also require new and relevant evidence be submitted to reopen the claim before VA’s duty to assist in getting a C&P exam is triggered.
If a veteran can meet that threshold requirement, the VA is required to assist the veteran by providing an examination. Scheduling the exam is not enough on its own: the exam itself has to be adequate, meaning the examiner was sufficiently informed of the veteran’s relevant history, used an accurate factual premise, and provided adequate reasoning for his or her opinion.
An exam performed without reviewing the veteran’s history, or an opinion that leaves the key medical question unanswered, does not satisfy the VA’s duty even though an exam technically took place. See our guide to common C&P exam mistakes for more on what can go wrong with the exam itself.
Again, however, it is not always a good idea to rely solely on the VA to provide supportive medical evidence. We find that veterans often obtain better results when they are able to provide the VA with medical opinions from private doctors rather than relying on the medical opinions that the VA provides.
The Limits of the VA Duty to Assist
VA will refrain from or discontinue assisting a veteran when the claim is one that cannot succeed as a matter of law, when the veteran does not have the basic eligibility for the benefit sought, or when the claim is inherently incredible or clearly lacks merit.
And, under the current appeals system, the duty to assist generally does not apply while a claim is at Higher-Level Review, since a Higher-Level Review is decided on the evidence already in the file. The duty picks back up if the case is sent back down after a Higher-Level Review or Board reviewer finds that the regional office committed a duty to assist error.
What Is a VA Duty to Assist Error?
A duty to assist error happens when the VA does not do what the regulation requires: it fails to request an identifiable record, fails to follow up on a request that went unanswered, fails to provide a medical exam once the veteran has met the low threshold described above, provides an exam that is not adequate, or discontinues a records search without giving the veteran the proper notice.
We are able to have the Court of Appeals for Veterans Claims overturn many of the VA’s decisions based on the VA’s failure to properly assist veterans. You can save yourself the time and aggravation of an appeal to the Court, however, by making sure that the proper evidence gets into your claims file in the first place, with or without the VA’s assistance.
Do You Need to Appeal a VA Duty to Assist Error?
A duty to assist error does not require a separate appeal to fix. If a Higher-Level Review or the Board identifies one, the reviewer sends the case back to the regional office so the missing evidence can be gathered, returning the case to the supplemental claim appeal lane rather than closing it out.
The regional office then completes the missing development, VA notifies the veteran of what is happening, and the regional office issues a new decision once the record is complete. Finding a duty to assist error is not itself a grant or a denial; it only means the VA has to finish the job it should have finished the first time.
Can You Get Back Pay for a Duty to Assist Error?
If the corrected decision results in an approval, the effective date could go back to the date of the original claim that should have been developed correctly the first time, not the date of the corrected decision.
And if that original claim was filed within one year of the veteran’s separation from service, the effective date can go back even further, to the day after separation. A VA duty to assist error, in other words, does not just get a claim a second look. It can mean years of back pay the veteran would otherwise have lost to VA’s own mistake.
Hill & Ponton successfully represents veterans whose claim was denied or underrated because the VA did not do its part to gather the evidence, notify them of a gap, or provide a required exam. If your claim was denied and you believe the VA fell short of its duty to notify and assist, contact the Hill & Ponton team for a free case evaluation to review the decision.
Written By
Shannon Brewer
Senior Attorney, Hill & Ponton, P.A.
Shannon was born on MacDill AFB in Tampa, Florida as the daughter of a U.S. Air Force Master Sergeant and a high school English teacher. She was a member of the University of Florida Law Review and published a case note on the Florida Privacy Amendment. She practiced land use and environmental law for several years but felt called to serve our veteran population and changed her practice area to veterans disability law.
