Getting My C-File For Nod: Between A Rock & A Hard Place

[TiredCoastie]

Really need some advice...how badly will I screw things up if I ask for a copy of my C-file now?

I'm sitting here waiting for the RO to do something...anything...with my reconsideration claim that my VSO strongly suggested I pursue before attempting an appeal. The reconsideration claim was submitted with new and material evidence along with a separate request to increase the rating on one disability that is SC but at 0% in April 2013. The claim decision which closed that I've asked to be reconsidered closed the end of December 2012. eBenefits shows the reconsideration claim stuck at "Gathering of Evidence." Clock's ticking... If there's no decision published before basically Christmas, I understand from hadit that will have to NOD prior to that date or face the strong potential that the original decision could stand.

I'm compiling my NOD and associated evidence. Wisdom of hadit experience says to get my C-file and read through it carefully. I've got the C&P exams from my initial claim separately through the VAMC that did them. I can request the C&P exams for the last claim, and will probably next week. But I don't have the C-file.

What will happen to my stagnated claim if I request the RO pull the C-file out of the claims' queue and mail me a copy of what they feel like sending?

Call me an optimist, but I'm holding out hope that they'll get to my claim once the drive to reduce the long overdue backlog subsides (and hopefully with the completion of that LONG overdue work rather than just sitting it aside to gather more dust). Hope in a good outcome is not typically a winning strategy. Usually there is positive action on our part, either up front or along the way, that gets the job done successfully. At least that's what the Chief always said in so many words.

I read somewhere that when someone drops a Congressional on the RO about a claim that's gone on all too long, the C-file comes out of processing and a different office answers the legislator. Then the C-file can take months finding its way back to the right place for processing to restart. Wouldn't asking for a copy of my C-file do the same?

So if I ask for a copy of my C-file, will I completely derail any possibility of my claim getting the appropriate attention at the RO prior to my December deadline? (The realist/pessimist side asks how much that really matters seeing as nothing's happened thus far...how can something be more scewed up than it already is!?)

[jbasser]

I requested mine last march

Good Luck with that.

J

[carlie]

Really need some advice...how badly will I screw things up if I ask for a copy of my C-file now?

I'm sitting here waiting for the RO to do something...anything...with my reconsideration claim that my VSO strongly suggested I pursue before attempting an appeal. The reconsideration claim was submitted with new and material evidence along with a separate request to increase the rating on one disability that is SC but at 0% in April 2013. The claim decision which closed that I've asked to be reconsidered closed the end of December 2012. eBenefits shows the reconsideration claim stuck at "Gathering of Evidence." Clock's ticking... If there's no decision published before basically Christmas, I understand from hadit that will have to NOD prior to that date or face the strong potential that the original decision could stand.

And you will lose your earlier effective date.

I'm compiling my NOD and associated evidence. Wisdom of hadit experience says to get my C-file and read through it carefully. I've got the C&P exams from my initial claim separately through the VAMC that did them. I can request the C&P exams for the last claim, and will probably next week. But I don't have the C-file.

Is there something specific you know of in your c-file that could change the prior decision or garner application of the BOD ?

What will happen to my stagnated claim if I request the RO pull the C-file out of the claims' queue and mail me a copy of what they feel like sending?

The NOD clock will continue ticking.

Call me an optimist, but I'm holding out hope that they'll get to my claim once the drive to reduce the long overdue backlog subsides (and hopefully with the completion of that LONG overdue work rather than just sitting it aside to gather more dust). Hope in a good outcome is not typically a winning strategy. Usually there is positive action on our part, either up front or along the way, that gets the job done successfully. At least that's what the Chief always said in so many words.

I read somewhere that when someone drops a Congressional on the RO about a claim that's gone on all too long, the C-file comes out of processing and a different office answers the legislator. Then the C-file can take months finding its way back to the right place for processing to restart. Wouldn't asking for a copy of my C-file do the same?

Most likely.

So if I ask for a copy of my C-file, will I completely derail any possibility of my claim getting the appropriate attention at the RO prior to my December deadline? (The realist/pessimist side asks how much that really matters seeing as nothing's happened thus far...how can something be more scewed up than it already is!?)

Absolutely no way to tell or know - anything would be speculation.

carlie

[john999]

You can ask to view your file without making an entire copy. If you see something you need they will copy 10-20 pages. I did this while waiting for DRO. You have to get your file sometime since if you ever get a lawyer they will want to see a copy. Seeing my file got me TDIU probably two years earlier since I stopped the VA from shipping my claim to the BVA instead of doing the DRO Hearing to fix obvious problem.

John

[Philip Rogers]

Anything could happen but it's probable that you won't lose your place in line. I feel the sooner you have a copy of your c-file the better. jmo

pr

[TiredCoastie]

Thanks, everyone! Saw the form link you posted, Jbasser. Might wait a little while longer but we're getting down toward the wire.

[FormerMember]

I suppose I disagree with the majority of you on this. Prying a copy of c-file away from the VA is time-consuming only if you let it be. I did it in 2008 in the midst of my appeals- after my NODs had been filed but before my claims had been through the DRO reviews. I'd been granted 100% right out of the gate and the P&T was set two years hence for June 2010. I wanted to see what this confounded c-file held that was so damn important. Everyone talked of it. I filed to get it and then followed up with a 21 day letter using all the 5 USC language that ordered them to do it. I'd be glad to copy and paste the form letters here for all of you if you wish. The law says they have to provide you one in 90 days. Many are unaware of that codicil. Next, if you do not receive it within the time limit and they do not respond to the second letter, you go over the head to the next level-the OGC. This is where the rubber usually meets the road.

There will always be recalcitrant ROs who think they are above the law. VA, as we know, are not great communicators. Right now they are using the backlog as their main argument for being unable to comply. It does not wash. The law stands above it. However, if they still refuse, do what I advised Leigh B. to do. After waiting for almost two years, I had her file for an extraordinary Writ (of Mandamus) to the CAVC. She had her c-file one day after the suspense date the Court set. The bigger problem was that it was woefully incomplete. Now the VA is mired in having to stay after school and answer to the Court as to why their copy varies so radically from what Leigh fully well knows is in it. Her RO in Baltimore shipped it off to Detroit's RO because they were backlogged. And Detroit wasn't? Detroit proceeded to misplace it. Then Detroit sent it out to be converted to electronic format and forgot to make her a copy. Not once did VA contact her and apologize or explain the delay. To add insult, some chucklehead at the Baltimore RO insists he still has it. It's becoming a "Who's on first? game."

The CAVC docket number is 13-2095. It makes for interesting reading Here's a sample.

One day after this Court issued its

order to the Secretary to respond to the Petition, an

employee of the Detroit VA Regional Office called the

veteran directly, not the undersigned counsel, to confirm

the address to which to direct the copy of the claims file.

The undersigned counsel did receive a set of papers at his

office. However, for several reasons it is unknown what

that set constitutes: (1) there was no cover letter

transmitting the records; (2) the shipping label indicates

a return address of the Detroit VA Regional Office; (3)

there was no certification that the set was a complete and

true copy of the original claims file as requested in the

Petition.

Here's the petitioner's response (attached). Leigh's name is now a matter of record so this is not "spilling the beans". When you go to the CAVC, anonymity flies out the window.

My experience did not delay my place in line. Face it. The delay is endemic right now. If you honestly think it could get worse, you're wrong. Getting a Congressional Inquiry (CI) involved also does not slow the process down. The CI desk at the RO is staffed by a small crew of apologists. They dig up the claim in VACOLS, ascertain where it is in the adjudication process and report back. It doesn't involve "taking it out of the in basket". The VBA is a miasma of old, antiquated procedures being spliced onto newer computerized ones. They don't fit. Imagine attaching your hand directly to you shoulder like a Thalidomide baby and you have a visual concept-albeit an imperfect one. The truth is that VA hierarchy is staid in their ways. They've been doing business like this since the War of Northern Aggression and do not take kindly to outsiders showing up at 810 Vermin Ave. NW telling them how to do their job. They have almost the same number of Veterans Law Judges now (67) as they did in 1989 (60). They "fixed" their backlog by allowing a single VLJ to adjudicate claims in 1994 instead of the old "board" of three. That is what you are up against. Nothing more. It's called ennui. Complacency. Laziness. Get out your thesaurus and pick an adjective.

When you deal with VA, you have two choices. Either sit back and wait patiently for years and years or become proactive and push back. I don't know how many service reps from VSOs have admonished their Vets to be patient; to not upset the apple cart or they'll be sorry. You have two choices. Be a punk or be a chump. After 18 years of doing my best chump imitation, I tried the other approach and was amazed at what happens when you send dear Sen. Murray an email saying VA is giving you the high hard one. I got my P&T in 89 days and my c-file in 94. You have to be firm but not overbearing. One thing I note in all the CAVC and BVA jurisprudence I read is the lack of personal attacks on the character of the idiot responsible for a really stupid decision. A CAVC judge will not question whether a VLJ was raised by wolves. S/he will simply and politely point out the error of the decision and reverse/remand/vacate appropriately for the VLJ to revise his/her decision to comport with law. Simple and elegant. Likewise, you can do the same with no fear of recrimination or being sent to the locker room for two years.

I am willing to bet that if you took a poll, you would find most VSOs pooh-pooh the idea of getting a c-file while the case is in progress. How, exactly, do you propose to defend yourself? Absent the documents being used to impeach your testimony and evidence (or lack of evidence) to deny you, how is it, exactly, that you would propose to defend yourself. Waiting until you've been the guest of honor at your Texas necktie party and trying to undo all the errors at the BVA is again a self-defeating argument. Waiting until your c-file is in DC is even more asinine to ask for a copy. The BVA doesn't make copies. The ROs do.

LAB.pdf

Edited September 29, 2013 by asknod