The VA Secretary's duty to elicit lay evidence
Veterans have, in several cases, contended that the Board of Veterans' Affairs (BVA) erred when it found that the VA satisfied its duty to assist in their claim for an earlier effective date. These veterans argue that the BVA was mistaken because VA failed to elicit medical and lay evidence from them and because the BVA erroneously determined that a retrospective medical opinion was not warranted.
The VA Secretary has a general duty to make reasonable efforts to assist a claimant in obtaining evidence that is necessary to substantiate the claim for benefits. 38 U.S.C. § 5103A(a); Daves v. Nicholson, 21 Vet.App. 46, 50 (2007). This duty includes notifying claimants to submit lay evidence of their symptoms. Chotta v. Peake, 22 Vet.App. 80, 84 (2008) (citing 38 C.F.R. § 3.159(b)(1) (2011)). This duty may also include "obtaining a retrospective medical opinion" when the record does not include "competent medical or lay testimony that indicates that a higher disability rating may be appropriate."
The court has held that the BVA in certain circumstances has a duty to elicit lay evidence regarding the history of symptoms and a medical opinion of when the higher rating should begin.
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