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!?)

[carlie]

ask,

St Pete VARO will sit on a request for a copy of your cfile - until pigs fly . . .

About the same amount of time it takes to get a Writ - that is IF the Writ goes thru.

JMHO

BTW - I ordered the hardcover book thru amazon - about 22 bucks.

Be sure to buy cupcake some new seeds to plant !

[FormerMember]

Carlie- Thank you for your patronage. I have to update the book to include new concepts soon. Nevertheless, it is an excellent guide on what not to do. In the same vein, it teaches what (and how) VA will use things to deny you. Their playbook is a severely limited repertoire. After about 10,000 BVA decisions and 5,000 cutting edge panel CAVC decisions, this becomes glaringly apparent. The egregious stuff always appears at the Court as "post hoc rationalizations" where the OGC tries to reconstruct the crime scene based on how a claim would have been accomplished if it were indeed done legally. Since VA does not operate by their own rules, it is usually reflected in the records, or, more appropriately, the lack of records, and they get busted.

Look at this one. http://asknod.wordpress.com/2013/09/30/getting-your-c-file/ I wrote it up yesterday in order to encompass what I wrote above. Vets need to know they can (and should) take the gloves off and KATN. VA, for far too long, has held sway over us via the VSO arm of representation. We blindly followed like sheep because we trusted them. Wouldn't most of us? I did for years until it dawned on me something was amiss. I never won anything but 0% ratings for hearing which, as most know, is a dead end. You have to almost be deaf as a post in one ear and well on your way with the other to even get to 20%. In 2007, I gave my MOPH rep my IMO for the hepatitis/AO. The one seminal item that would be instrumental in my winning oddly never made it into my C-file. I asked him to show me his file on my claim. When I discovered it, I mailed in another myself. My rep. indicated if I went off the reservation without him again, he would drop me. I took the initiative and dispensed with him summarily. As you will read, I won 100% +40% +10% less than a year later without (gasp) any legal help.

With that said, the turn around time for a CAVC Writ filing is surprisingly quick. For $50, you can do what Leigh Ann did and have their undivided attention within 60 days. This is my kind of justice. I love it. VSOs' and most attorneys' hair stands on end when you suggest it but none will deny that it doesn't have a profound effect on a timely receipt of the file. I used to build houses before this disease took me. We never sat around waiting for a truss truck or lumber. There was always something that could be done in the interim. As for sitting around patiently and waiting, that isn't an option for us Type A personalities. I love IRIS. It may not solve the problem but it tells you far more than the 827-1000 Prize Redemption Center personnel ever will. DIY or Die is my newest motto. It's a nice bookend to Win or Die. You basically have two choices. Sit patiently on the Group W(wait) bench or be proactive. VA would rather you simply go away. A petition for a Writ is a horse of a different color. VA can and does ignore you but they cannot ignore the Court.

Obviously, Veterans have been reading my site because I viewed the CAVC site this morning and the number of Writ petitions denied (3) continues to mushroom with each succeeding month. Most are by pro se vets, too. One thing you should expect though. The CAVC rarely grants the Writ. In almost all cases the VASEC trips over his necktie to get the requested action done before the Court can sanction him. It's usually written up like " The Secretary is mystified as to what the Veteran is upset about. Yes. we forgot to send him the C-file but we did it about .0001 seconds after we realized we forgot so there isn't a problem anymore. Can we all go out to recess now?"

One last observation. You can file for free if you are indigent. Many are. They may ask for proof and that might take longer. For the $50 though, you cannot beat it. It sure beats Dialing for Dollars at the 800 number.

Clear prop. Mags on.

Edited October 6, 2013 by asknod

[free_spirit_etc]

"Anytime your c-file contains the records of another Vet, any claims decisions with the records in place are tainted. Raters have been known to confuse the evidence and deny based on the other Vet's records. The Court has held that in these cases, the repair order is to remand for a decontamination and a new (de novo) readjudication at the RO that does not take into account the tainted evidence."

I found that case very interesting. I was interested in this because there are records of another vet in my husband's C-file. (I even informed the VA of this and asked them to please look in those vet's records for my husband's missing discharge physical). But to claim the file was tainted, I would probably have to show the other veteran's records most likely affected the decisions, right? I couldn't ask for the records to be removed and all the claims readjudicated just on the basis that there were some other vet's records in the file. I certainly will look over the decisions concerning the knee disabilities - since there are records of other veteran's knees in my husband's C-file. But it seems like I wouldn't have a basis to get claims on other issues readjudicated.

I don't know. I am interested. But from the case I read so far, it still looks like you would have to show that those records had some affect (or the potential to have some affect) on the decision that was made.

[free_spirit_etc]

I wish I would have known that we could push them on the C-file. My RO told me from the beginning it would be over 6 months to get a copy of the file. I even wrote later and asked for an extension of one year to submit evidence in support of my claim as it took them forever to send the C-file. Of course, they never answered. Oddly enough, when I kept asking for the second page of the medical opinion that was used to deny my claim, they kept telling me I had to provide them with the date of the opinion and the name of the doctor who wrote it. I kept telling them I didn't know the name or date because that information was on the page they didn't send me. Then they had me send a copy of the part of the report I had, to assist them in searching. Of course, that got me nowhere. But really, how hard is it to search. You sought a medical opinion. That opinion was used to deny my claim. I want a complete copy of THAT opinion.

BUT - when Berta posted an email of a branch within the agency that is supposed to help with survivor benefits and I emailed them and asked for assistance in getting a complete copy of the medical opinion - they forwarded my email - and I got a copy of the entire C-file several days later (along with an admonishment that let me know this was my SECOND copy and that I would be charged if I requested any more). But it did have the second page of the medical opinion I was seeking included.

[free_spirit_etc]

Well dang...

It looks like from this case

you do have to show that the tainted evidence had a prejudicial effect on your claim.

http://search.uscourts.cavc.gov/isysquery/2792ea20-64b7-44f1-a645-e39b2bbbe912/40/doc/

"These documents certainly contain discrepancies; however, the differences between the documents do not appear to be such that they would have any impact on the evaluation of his claim. Consequently, unlike the case of Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009), where the alteration in a claims file document spoke directly to the question at issue (namely, the appellant's employability), and the altered document clearly tainted proceedings, in this case, the Court cannot identify any prejudicial error arising from the presence of the differing versions of the documents cited."

But then again -- I might find another decision that says something different... ;)

Edited October 2, 2013 by free_spirit_etc

[free_spirit_etc]

I think I need to order a copy for the VSO I had at my hearing.

ask,

BTW - I ordered the hardcover book thru amazon - about 22 bucks.

Be sure to buy cupcake some new seeds to plant !