Before the VA denies you, it has to hold up its own end. Under 38 CFR § 3.159, the VA has a duty to assist you in obtaining evidence and, when the record triggers it, to provide an adequate examination. When it skips those steps, the decision is vulnerable.
Common failures
- Not obtaining federal records the VA was told about
- Providing an inadequate exam, or none when one was required
- Ignoring favorable evidence already in the file
How to use the error
A duty-to-assist failure is often the cleanest path to a win on appeal, because you are not arguing the medicine — you are showing the VA never gathered it properly. A Higher-Level Review or Board appeal can send the claim back for the development that should have happened the first time.
We read denials specifically for these failures. They are more common than the VA would like to admit.