C&p Request

[david walker]

I had a C&P at the end of Jan. I've requested a copy 3 times. One from the clinic and twice from the regional office. I know my file is at the rating board. One letter was returned, saying it was to soon. The clinic called and said they could not release the report, I've not heard from the RO about my last request. This is so strange I've had two previous C&P's and gotten a copy in a couple of weeks. Has the VA changed their policy on releasing info to the Vet?

[Guest Namvet6567]

Try contacting the C&P scheduling office, the release of info office and even try the Patient Rep, for a copy.

[wallyg]

David,

Yes, they changed their policy more than a year ago, but most RO's did not implement it at that time. VA's policy is now, that the C&P cannot be released to the veteran, until such time as the VARO accepts it, and authorizes its release.

Since this gives them the opportunity of rejecting a C&P they don't like, sometimes it can take a while. Manila VARO has been doing this for more than a year now. Usually I get a copy about a month after I file a request, but it has already been 11 weeks since my last C&P, and I am still waiting.

Probably, because I filed a compliant that it was totally inadequate, and done by an utterly hopeless internist, instead of the Orthopedist and Neurologist that the VA's own C&P guide recommends (IVDS)

[Bound4heaven]

David,

Yes, they changed their policy more than a year ago, but most RO's did not implement it at that time. VA's policy is now, that the C&P cannot be released to the veteran, until such time as the VARO accepts it, and authorizes its release.

Since this gives them the opportunity of rejecting a C&P they don't like, sometimes it can take a while. Manila VARO has been doing this for more than a year now. Usually I get a copy about a month after I file a request, but it has already been 11 weeks since my last C&P, and I am still waiting.

Probably, because I filed a compliant that it was totally inadequate, and done by an utterly hopeless internist, instead of the Orthopedist and Neurologist that the VA's own C&P guide recommends (IVDS)

Greetings,

I just finished 3 of 3 C&P exams 3 weeks ago. All of this came about after I received copies of the old C&P exams that were performed by an incompendent N.P. After meeting with the Medical Director (the N.P. was fired over this issue) along with my IME from Dr. Bash it was agreed that all pervious C&P 's would be thrown out.

While I was at my last C&P I was speaking with the director of the C&P clinic (I got to know her well through out the process. She came down to make sure my last exam went smoothly and that I was happy. Amazing what happens when you got the Medical director on audio tape) She told me that the all VAMCs in the USA were not going to allow the veteran to have access to their finished C&P exams until after the ROs have made their decision. I know this to be true.

I went to the VAMC Medical Records release and they would not release them to me. (1 week later) I contated the VAMC Medical Director and was contacted by his assiatant and was informed that they could not access my information until after the RO has released it. Asking for this info (FOIA) does not work anymore. I wrote letters to the RO and again to the patient advocate and VAMC Medical Director demanding under the FOIA and I have heard ZERO.

From what I understand this is being done so that the Veteran cannoot file a complaint (as I did) before the RO gets it. This will limit VAMC from accountability and limit the VAMC's from giving deserving vets a re-C&P exam.

I posted this information about a month ago, and every one that responded thought like I use to that no way they are going to be able to do that, WELL VETERANS IT IS HERE!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!. Another one of our rights when going through this dog and pony show has been taken away. This is a big issue I would have not gotten another C&P exams if this rule had been in place, hummmmmmmm maybe thats the idea!!.

God bless you all.

[Jay Johnson]

I believe this new VARO action on releasing C&P exams is unlawful AND you can take them to civil court over it!!!!! The privacy act assures veterans that they can have access to their records whenever they request it...here is a relevant portion of that act (pay close attention to the highlighted portions):

P.S. - The only exemptions listed are for legal/security reasons...the VA does not fall under any of the exemptions listed.

>>>>>(d) Access to records

Each agency that maintains a system of records shall--

(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual's record in the accompanying person's presence;

(2) permit the individual to request amendment of a record pertaining to him and--

(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and

(B) promptly, either--

(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or

(ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;

(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official's determination under subsection (g)(1)(A) of this section;

(4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and

(5) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.

(e) Agency requirements

Each agency that maintains a system of records shall--

(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by Executive order of the President;

(2) collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual's rights, benefits, and privileges under Federal programs;

(3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual--

(A) the authority (whether granted by statute, or by Executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;

(B) the principal purpose or purposes for which the information is intended to be used;

© the routine uses which may be made of the information, as published pursuant to paragraph (4)(D) of this subsection; and

(D) the effects on him, if any, of not providing all or any part of the requested information;

(4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include--

(A) the name and location of the system;

(B) the categories of individuals on whom records are maintained in the system;

© the categories of records maintained in the system;

(D) each routine use of the records contained in the system, including the categories of users and the purpose of such use;

(E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records;

(F) the title and business address of the agency official who is responsible for the system of records;

(G) the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him;

(H) the agency procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system of records, and how he can contest its content; and

(I) the categories of sources of records in the system;

(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;

(6) prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes;

(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;

(8) make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record;

(9) establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance;

(10) establish appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained;

(11) at least 30 days prior to publication of information under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency; and

(12) if such agency is a recipient agency or a source agency in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, at least 30 days prior to conducting such program, publish in the Federal Register notice of such establishment or revision.

(f) Agency rules

In order to carry out the provisions of this section, each agency that maintains a system of records shall promulgate rules, in accordance with the requirements (including general notice) of section 553 of this title, which shall--

(1) establish procedures whereby an individual can be notified in response to his request if any system of records named by the individual contains a record pertaining to him;

(2) define reasonable times, places, and requirements for identifying an individual who requests his record or information pertaining to him before the agency shall make the record or information available to the individual;

(3) establish procedures for the disclosure to an individual upon his request of his record or information pertaining to him, including special procedure, if deemed necessary, for the disclosure to an individual of medical records, including psychological records, pertaining to him;

(4) establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each individual to be able to exercise fully his rights under this section; and

(5) establish fees to be charged, if any, to any individual for making copies of his record, excluding the cost of any search for and review of the record.

The Office of the Federal Register shall biennially compile and publish the rules promulgated under this subsection and agency notices published under subsection (e)(4) of this section in a form available to the public at low cost.

(g)(1) Civil remedies

Whenever any agency

(A) makes a determination under subsection (d)(3) of this section not to amend an individual's record in accordance with his request, or fails to make such review in conformity with that subsection;

(B) refuses to comply with an individual request under subsection (d)(1) of this section;

© fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or

(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.

(2)(A) In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual's record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo.

(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.

(3)(A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case the court shall determine the matter de novo, and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld under any of the exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action.

(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.

(4) In any suit brought under the provisions of subsection (g)(1)© or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of--

(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and

(B) the costs of the action together with reasonable attorney fees as determined by the court.

(5) An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, without regard to the amount in controversy, within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975.

(h) Rights of legal guardians

For the purposes of this section, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.

(i)(1) Criminal penalties

Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.

(2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.

(3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.

(j) General exemptions

The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), ©, and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), ©(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is--

(1) maintained by the Central Intelligence Agency; or

(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or © reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.

At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553© of this title, the reasons why the system of records is to be exempted from a provision of this section.

(k) Specific exemptions

The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), ©, and (e) of this title, to exempt any system of records within the agency from subsections ©(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of records is--

(1) subject to the provisions of section 552(b)(1) of this title;

(2) investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section: Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;

(3) maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of Title 18;

(4) required by statute to be maintained and used solely as statistical records;

(5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;

(6) testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or

(7) evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.

At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553© of this title, the reasons why the system of records is to be exempted from a provision of this section.<<<<<

Edited March 20, 2006 by Jay Johnson

[Guest jstacy]

Lets not everyone get into an uproar with this issue. It may be as simple as the C @ P examiner not signing off on the claim. It cannot be release unless it is signed by the Doctor. It took about 5 weeks for my last C@P to get a copy. David, you can call to see if it is available without going through this headache. There is no such thing as the VA witholding a result of a C@P examination. It is against HIPPA and is a federal offfense to do so. 5 or 6 weeks is pretty normal ( Especially if allot is involved). The Doc has to answer a barrage of questiuons from the RO and Give opinions and also investigate evidence to also back them up. I believe this to be the case here. Also dont let some GS-4 file clerk steer you the wrong way.

Edited March 21, 2006 by jstacy

[Jay Johnson]

Lets not everyone get into an uproar with this issue. It may be as simple as the C @ P examiner not signing off on the claim. It cannot be release unless it is signed by the Doctor. It took about 5 weeks for my last C@P to get a copy. David, you can call to see if it is available without going through this headache. There is no such thing as the VA witholding a result of a C@P examination. It is against HIPPA and is a federal offfense to do so. 5 or 6 weeks is pretty normal ( Especially if allot is involved). The Doc has to answer a barrage of questiuons from the RO and Give opinions and also investigate evidence to also back them up. I believe this to be the case here. Also dont let some GS-4 file clerk steer you the wrong way.

That's just it, they don't have the right to make you wait for a doctor to sign off on it. I know it is a common practice, but it seems to fly in the face of the privacy act of 1974. When you request a copy of an exam they MUST give it to you without delay as per the privacy act. I'm not trying to start a war or anything, I just think the VA is pushing this law further and further and someone should call them on it before we no longer have any rights to speak of:-(