Veterans Disability Benefits: What Duty to Assist does the VA owe a surviving spouse claiming Dependency and Indemnity Compensation (DIC) benefits?By Chris Attig | Permalink
January 29th in VA Benefits.
The Federal Circuit Court of Appeals has held that the Duty to Assist provisions of 38 U.S.C. §5103A(a) applies to Dependency and Indemnity Compensation (DIC) claims. 5103A(a) does not always require the VA to assist a Dependency and Indemnity Compensation (DIC) claimant in obtaining a medical opinion or examination.
It does, however, require that the VA assist in obtaining an exam/opinion when it would be “necessary to substantiate” a surviving spouse‘s claim for Dependency and Indemnity Compensation (DIC). The only time that the VA does not have this Duty is when “no reasonable possibility exists that such assistance would aid in substantiating the claim.”
As always, anytime the Board of Veterans Appeals (BVA) issues a ruling that excuses the VA from obtaining an exam for a surviving spouse Dependency and Indemnity Compensation (DIC) claim, it must provide adequate reasons and bases explaining why “no reasonable possibility exists”.
The BVA frequently gets this wrong. Take a look at a Board of Veterans Appeals (BVA) decision excusing the VA’s failure to obtain an exam or opinion for a Dependency and Indemnity Compensation (DIC) claim: if it contains language like this, there is a good chance that the Board of Veterans Appeals (BVA) has committed error:
“…there was no reasonable possibility that a [medical] opinion would have aided in substantiating the claim because….”
Why? Because that is the general standard applicable in disability compensation claims – not the standard for Dependency and Indemnity Compensation (DIC) claims.
Despite all of the above, even when the Board of Veterans Appeals (BVA) erred, the Court of Appeals for Veterans Claims (CAVC) may not remand the case if the error is not prejudicial. More on the “Rule of Prejudicial Error” in another post.
The Attig Law Firm represents US Veterans in their disability benefits claims to the VA. The Attig Law Firm represents Veterans nationwide before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC).
For claims at the VA Regional Office level, the Attig Law Firm focuses its efforts on Veterans (and the Surviving Spouses of Veterans) in Texas, Arkansas, Colorado, Pennsylvania, North Carolina, and South Carolina.
If you are a Veteran (or a surviving spouse of a Veteran) and have a claim before the Board of Veterans Appeals (BVA), or the Court of Appeals for Veterans Claims (CAVC), it is very important that you consider hiring an attorney with experience handling such claims. Even if you don’t hire the Attig Law Firm – find a reputable and competent attorney to help you with your Court of Appeals for Veterans Claims (CAVC) Appeal.
No post on this website is meant to be legal advice and the posts on this website do not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the Veteran, some power. This information is not widely or easily accessible to Veterans. The information presented on this website is a general description of law and processes; each case is different, and there may be approaches listed here that are not accurate or applicable to your case. Likewise, there may be information that is applicable to your case that is not provided on this Veterans Disability Compensation Blog.
It is very important that the Attig Law Firm notes that each and every Veteran’s claim is different. Just because the Attig Law Firm was able to secure substantial past-due benefits for one Veteran or Veteran’s spouse does not mean or imply that we will be able to do so for you. In some cases, the Attig Law Firm may not be able to secure any financial compensation or past-due benefits due to the facts or law of your particular case.
It is best to consult with a lawyer familiar with VA Disability claims and benefits or a Veterans Service Organization to examine your particular case. If you would like to discuss your VA claim with a lawyer who handles VA Benefits and Disability Appeals, contact the Attig Law Firm, PLLC, for a free consultation with a VA Benefits attorney.