User:Muttnick/sandbox11

The Duty to Assist blahblahblah

Basis of the duty to assist
Under statutory law, the Department of Veteran's Affairs has a duty to assist claimants "in obtaining evidence necessary to substantiate" their claim for benefits. This statutory duty includes a medical examination when four elements are met:


 * 1) there is "competent evidence of a current disability or persistent or recurrent symptoms of a disability"; and
 * 2) "evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies"; and
 * 3) "an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability"; but
 * 4) "insufficient competent medical evidence on file for the Secretary to make a decision on the claim."

The third element has a low threshold. For instance, credible testimony from a claimant that they have suffered pain since a service-connected injury will satisfy the element. The medical examination must be "thorough and contemporaneous" and it must "take[] into account the records of . . . prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." For fluctuating conditions, such as athlete's foot, the medical examination must be performed during the "active stage of the condition."

If a claimant seeks a disability rating of 100% due to their inability to work, the VA must obtain "an examination which includes an opinion on what effect the [claimiant's] service connected disability has on [their] ability to work."

****New**** Obtaining records
Medical service records are always relevant and must be obtained by the VA. Federal records (for instance, records from the national archives or the Department of Defense) only need to be obtained by the VA when the records are determined to be relevant to the claim. The VA must at the minimum address and explain why they did not obtain records because they found them to be irrelevant. The claimant must adequately notify the VA of the existence of records they want considered in their claim. The VA does not have to search endlessly for records if it determines to do would be futile.

Statement of reasons or bases
When the VA provides a statement of reasons or bases for its rejection of a claim for benefits due to a mental disorder, the VA must include all symptoms of the claimant's diagnosed mental disorders "in a single evaluation 'when it is not possible to separate the effects' of those disorders.'" For the VA to favor the opinion of "one competent medical expert over another", its statement of reasons and bases must support that decision.

Adequacy of medical opinions
Each disability must "be viewed in relation to its history" during medical examinations. Diagnoses must be "supported by the findings on the examination report" and contain sufficient detail. The probative value of expert medical opinions offered to support or deny veterans' claims for disability benefits must be "based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches." Medical opinions "must support [their] conclusion with an analysis that the Board can consider and weigh against contrary opinions."

Physicians are not required to perform complete reviews of a claimant's claims file. Claimants have the right to a medical opinion from a private physician however private opinions are not offered greater weight than opinions from VA physicians.

When a VA examiner states in their medical examination that they cannot give a medical opinion "without resorting to speculation", than the VA may not rely on the examination unless it includes a basis for its decision or its basis is apparent to the VA. Medical opinions must take into account veterans' testimony regarding symptoms.