VA Disability: Is it really “non-adversarial”?

David Magann

Those new to the VA claims process may come to believe that the VA is “pro claimant” or will, without a doubt, provide every possible assistance to support your disability claim. This belief is a dangerous pitfall based upon Congressional mandates and case law which is often ignored by a bureaucracy that is understaffed, undertrained, and underpaid for the processing of disability claims.

The Veterans Claims Assistance Act of 2000 (VCAA) reaffirmed that the VA benefits and disability claims process up to the Board of Veterans’ Appeals (BVA) process must be non-adversarial. See, 38 C.F.R. §§ 3.102, 3.103, 3.105, 20.700 (2007). Also, the VCAA reasserted the VA’s duty to assist and eliminated a “well-grounded” claims requirement which was arbitrarily interpreted by the VA. Nevertheless, it is still up to the claimant and the attorney to develop the record because there is no “penalty” to the VA if it fails to assist. In fact, there are several factors that work against VA adjudicators in properly assisting a claimant.

The VA adjudicators use a system where they claim “work credits” by prompt adjudication. The emphasis being on production causes numerous errors and is a path to claims being denied. Also, the compensation and pension medical exams(C & P) provide the C & P doctors and medical evaluators with limited time to review a claimant’s file, and even less time to exam the claimant/veteran. Again, production before quality equals claim decision errors.

From an attorney perspective not having a lawyer representing the VA at the initial application and Notice of Disagreement (NOD) level (note: BVA judges are generally lawyers), appears non-adversarial at first glance. However, the the majority of the VA disability process is like any other adversarial system. In the end, it is up to the claimant/veteran to prove the claim not the VA. Sound advice is to get a lawyer, get your evidence, and know what you need to prove to win the claim (this is where the lawyer is invaluable).