What this means
A pre-decisional duty-to-assist error exists when VA was obligated under 38 CFR 3.159 to obtain relevant evidence or an examination before the reviewed decision and failed to do so. Unless the reviewer can grant the maximum benefit, the issue is returned for development and a new decision. That return completes the HLR for the affected issue even though the underlying benefit remains unresolved.
How this may help with a claim
Identify the missed duty with dates: what record, examination, or opinion VA was required to obtain; how VA knew enough to locate or request it before the decision; and why it mattered. For VA treatment records, point to the prior disclosure of the facility or location. After a return, monitor the new development claim and verify the missing action is completed before the supplemental decision.
What to review in your file
- Show that the duty arose before the notification date of the decision under review.
- Identify the specific federal, private, medical, or examination development VA failed to perform.
- For VA records, locate the prior statement or evidence that gave VA sufficient notice of their existence and location.
- After return, confirm the new correction claim completes the ordered development and issues a fresh decision.
- Distinguish a duty-to-assist failure from a difference of opinion about how existing evidence should be weighed.
Important limits
A DTA return is not an award and does not mean the new evidence will prove entitlement. The mere possibility that records exist somewhere in VA systems is not always constructive notice, and post-decision evidence cannot retroactively create a pre-decisional failure.
Search terms when useful
Phrases that may help when searching your claim file or this library.
- duty to assist error
- DTA return
- missing VA records
- missing examination
- HLR error correction
- EP 040
- pre-decisional error
Original VA guidance
The official VA text of this section
5. Errors in the Duty to Assist
Introduction
This topic contains information on errors VA made in its duty to assist the claimant obtain evidence to support the prior claim, including
- definition of duty to assist (DTA) errors
- definition of maximum benefit
- missing VA treatment records
- returning DTA errors for correction
- handling DTA errors
- expediting the correction of DTA errors, and
- proper tracking of DTA errors.
Change Date
June 12, 2026
5.5.a. Definition of Duty to Assist (DTA) Errors
An HLR may identify a deficiency in VA fulfilling its duty to assist (DTA) the claimant in obtaining evidence relevant to the decision under review. A DTA error is a failure during the processing of the reviewed decision to properly apply the provisions of 38 CFR 3.159 for gathering evidence. These deficiencies include omitting development or failing to request certain examinations. The reviewer must return the issue(s) for development, unless the maximum benefit can be granted, as defined in M21-5, Chapter 5, Topic 5.b.
Important: Apply the procedures for correcting DTA errors when also developing to decide downstream issues of a grant of benefits not yet fully implemented but indicated as favorable findings.
Reference: For instructions on handling evidence received after the date of the notification of the decision under review that triggers VA’s duty to assist, see M21-5, Chapter 5, Topic 4.a.
5.5.b. Definition of Maximum Benefit
Maximum benefit is the highest schedular evaluation allowed by regulation for the issue under review. For ancillary benefits, an award of the benefit sought is the maximum benefit.
Important: HLRs need to consider downstream issues when granting any benefit. The highest schedular evaluation applies even if the issue is SC, as VA considers evaluation to be a downstream issue of SC.
5.5.c. Missing VA Treatment Records
A DTA error may occur when the Veteran or representative alleges treatment at a VA facility, but the records were not properly associated with the eFolder and considered prior to VA issuing notification of its decision, so that decision did not list those records as evidence. The higher-level reviewer must return any affected issue(s) for correction unless the reviewer can grant the maximum benefit.
Note: Constructive notice of VA medical evidence exists when the claimant relates its specific existence and location. The mere existence of medical evidence somewhere in a VA system of records does not constitute constructive notice, and therefore cannot qualify as a DTA error. Rather, the claimant or representative must provide information sufficient to locate such records.
Reference: For more information on constructive notice, see 38 CFR 3.103(c)(2)(iii).
5.5.d. Returning DTA Errors for Correction
A higher-level reviewer who finds a DTA error will complete a VA Form 20-0999, Higher-Level Review Re turn, for the affected issue(s). Complete the Favorable Findings section of VA Form 20-0999, or, if a rating issue, use VBMS-R, as necessary to justify the development to resolve downstream or reasonably raised secondary issues that may result from a grant of benefits not yet fully implemented.
All relevant details must be provided when returning the affected issue (s):
- Manual reference(s),
- Identified DTA error(s) resulting in the reason for the return, and
- Relevant e-folder document bookmarks.
The return of a request to correct a DTA error concludes the HLR for that issue. Veteran Service Representatives (VSRs) and Rating VSRs (RVSRs) will then treat that issue like any claim requiring development.
Under the Your Benefit Information section of the decision notice, the reviewer will include the statement below to notify the claimant of the disposition of those issue(s).
We completed your request for higher-level review on the following issue(s):
- [Insert Issue]
However, we need to develop for additional evidence before we can properly decide your claim.
Note: Use this decision notice only when VA decides at least one issue.
5.5.e. Handling DTA Errors
Follow the procedures in the table below when an HLR identifies missed development or other DTA error.
Note: Generate a decision for any issue not affected by the required development action(s).
Scroll sideways to see the full table.
| Step | Responsible Employee | Action |
|---|---|---|
| 1 | Higher-level reviewer | Can the maximum benefit be granted for any issue affected by the DTA error? If yes, generate a decision for the issue(s) that can be granted, and proceed to the next step for any remaining issue. If no, proceed to the next step. Reference: See HLR Returns Job Aid. |
| 2 | Higher-level reviewer | Complete VA Form 20-0999 for any remaining issues documenting any relevant evidence, if applicable, detailing the development actions needed Complete any rating decision in VBMS-R and at finalization assign the applicable DTA error disposition for each contention of the HLR. upload the form to the eFolder, and refer the claim to a VSR. Note: Free text should be used to fully explain the reason for the DTA error. |
| 3 | VSR | Promulgate EP 030 in VBMS-Awards (VBMS-A) Note: For full DTA error returns (i.e., all contentions require additional development), stations should send a copy of the rating decision and notification letter to the Veteran and representative, if any, with the following wording in the first paragraph of the notification letter: VA completed your request for higher-level review and identified an error in assisting you in gathering evidence to support your claim in each of your claimed conditions. VA will provide you notification of the evidence we will obtain to address these errors under a separate cover. Note: Select both "Suppress Appeal Rights VA Form 20-0998" and "Suppress Board Appeals Rights Statement" in VBMS-A. |
| 4 | VSR | Once VBMS automatically establishes an EP 040 after authorization, the development VSR will verify the creation of the appropriate claim label: HLR DTA Error – Rating, or HLR DTA Error – Non-Rating Note: the date of claim will be the date the EP 030 closed. Send the HLR DTA letter to the Veteran if the development does not require a subsequent development letter (for example, requesting an exam or clarifying a medical opinion). If generating a subsequent development letter based on the action required, add the following: VA completed your request for higher-level review and identified an error in assisting you in gathering evidence to support your claim. VA will correct this error by taking the following actions: |
Note: HLR returns (DTA errors and Differences of Opinion) will be routed to VSCs by NWQ for development and subsequent decision on the issue(s).
References: For more information on
- Actions for ready to work non-rating claims, see M21-4, Appendix D, Topic 2.f
- Positions with the authority to make HLR decisions, see M21-5, Chapter 4, Topic 1.c
5.5.f. Expediting the Correction of DTA Errors
VSRs, authorizers, and RVSRs must expedite HLRs returned for correcting DTA errors.
Reference: For more information on expediting DTA error corrections, see
- 38 CFR 3.2502, or
- Public Law 115-55, Section 5109B.
5.5.g. Proper Tracking of DTA Errors
To ensure proper tracking, when the higher-level reviewer returns a claim to correct a DTA error, users must ensure the selection of the correct disposition in connection to the decision.
Scroll sideways to see the full table.
| Decision/Supplemental Decision | Disposition |
|---|---|
| Grant of benefits | Grant |
| Denial of benefits Confirmed - No error Confirm and Continue Decision/Evaluation | Denial |
| DTA Error - Exam/MO | DTA Error - Exam/MO |
| DTA Error - Federal Records | DTA Error – Fed Recs |
| DTA Error - Other Records | DTA – Other Recs |
| DTA Error - Private Medical Records | DTA Error-PMRs |
| Difference of Opinion | Difference of Opinion |
When generating an award for an HLR, users must review the claim and the VBMS-R codesheet to confirm the decision matches the disposition generated in VBMS Awards.
If the disposition in VBMS Awards is different than the supplemental decision on the codesheet, return the rating for correction.
Note: All contentions on an HLR decision must have a disposition.