Does the VA Have a Duty to Assist Survivors, too?

Today's post discusses how the Duty to Assist works in a claim for Dependency and Indemnity Compensation (DIC) filed by the surviving spouse of a deceased Veteran.

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.

Categories: #2 Move, #3 Communicate

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>



Get Widget
Close
The Attig Law Firm is on Facebook
Join our Veterans Community and meet our Team!