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!?)

[TiredCoastie]

The reason it's being treated as acclaim is to track it, and so you can see it in ebennies. It doesn't count toward an employee for production. So won't be a bonus for this claim. It's called a non rating EP. Meaning just for tracking only. Rest assured no bonus for this one.

Thanks...but if it's a claim, then it sounds like a long process. The reason I'm trying to get my C-file is to support an appeal. The appeal is necessary because my reconsideration claim isn't likely to finalize before the end of December. So to rely on yet another claim doesn't seem to be a winning solution. Meanwhile, with the government shutdown, it sounds like the FOIA process has been furloughed so hopefully that route will be available soon...along with our disability pay for November. Now how many rocks am I between? Or as the old colonel used to say, "how many toads in the road?"

[TiredCoastie]

OK...now I REALLY need help.

After a few weeks of trying, I finally got through to someone at my servicing VSO. They were submitting my request for my C-file which I'd mailed them. That's the easy part...assuming they actually do it and the RO actually mails it.

Here's where help is really, really needed: can someone point me toward the CFR, etc, or experience that says that the VA doesn't have to respect my original filing date if I don't NOD prior to a year even after I submitted additional evidence showing their latest rating decisions were wrong (like what I did through my reconsideration claim)?

The NSO tried to talk me out of submitting a NOD. He mentioned that I didn't want to create an adversarial environment, that it wouldn't speed anything up (who would think that it would?), and I should just let my current request for reconsideration continue to the end, then take action at that point. When I mentioned that others had run into trouble when their reconsideration was denied and had lost the original claim date, he said he'd never heard of that or seen that.

He did let it slip that my claim is NOT being handled as an FDC although that's how it had been submitted and every NSO I'd spoken with seemed to think it was. Apparently, there are due dates in the system that are assigned for FDCs - he stated 120 days. My due dates all said "pending" which indicates this claim is running as a standard claim instead. Quick math based on what the VA is disclosing publically shows that my claim ought to be done late winter/early spring if so. Meanwhile, the rating date of the last claim for which I submitted a request to reconsider is 27 December 2012.

Do I trust this guy? No. He's a fill in from a different office who will never have to face anyone in the region again unless he somehow gets transferred here. He didn't have a clue about what I was talking about with the history of my claim using the same language that the two NSOs who did work there permanently had used. He told me I was at fault to kicking the claim out of the FDC stacks because I'd submitted outside medical information to my primary care provider at the VAMC that had bearing on my current open claim...yeah, right. He started our conversation by stating that I must have already appealed and looked for my appeal in the system, despite me telling him I had not issued a NOD or a form 9.

I'm in the midst of a family crisis right now and don't really have the time to put forth toward a NOD or Form 9 right now. I'd love to take this guy at his word and think that everything will be OK if I don't NOD prior to 27 Dec. I just don't trust it.

I could fire the VSO at this point for having issued such bad advice...they handed me a perfect excuse...and then submit a FOIA for my C-file as Asknod advises with a NOD shortly thereafter.

[FormerMember]

When you have a claim in and it is denied, you may submit new and material evidence and ask for reconsideration. 38 CFR 3.156(b) states:

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter ), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

In layman's terms, what this means is VA is required to make a new decision on your claim based on the new evidence submitted. Will they? Shoot, bubba. Those fellows are so backed up, a truckload of Exlax won't help them. What the VA bozos would prefer is that you file that NOD so they can put you on the group W bench to wait a year or so. As for your VSO saying they don't want to be "adversarial", I have a newsflash for you. That is boilerplate fear. VSOs get their funding from VA so they don't want to piss off the Pope. This translates into a meek idiot telling you to be careful or they'll retaliate. I'm living proof of the Win or Die theory. I attack at every opportunity as would any attorney when they see the delaying tactics.

If you file a NOD, you begin the arduous path to DC-either by a DRO review or a traditional appeal. Either one is anathema and to be avoided if possible. I tell my guys to keep it local if it is a matter of an increased rating or the like. If they have exhibited that they are not going to approve a new claim, that is reason to move on to DC. I see a proclivity to wait until your claim is 5 minutes away from being certified to go to DC and they will cave in and move you up one rating (say from 20 to 40) hoping you'll be happy. They keep doing this unless or until you go in with medical proof that can not be disputed. That is the VSO technique. Win or Die says go for the 100 if you are entitled to it. Attack from several fronts. Congressional inquiries on top of scathing letters stating the Diagnostic Codes are in order.

Has anyone ever wondered when they look at their award/denial letter from VA explaining the results of their claim that there is never a DC code to refer to? They amply explain what the percentage is versus the symptoms and discuss what a higher ratings % would be IF you qualified for it but there is no mention of the actual code number. It's no accident. They don't want you looking at it and figuring out what you need to get from 40 to 60%. Take a moment and go back and look at your ratings you've been given. Rarely will you see a DC code mentioned.

Getting your c-file is treated as a claim only insofar as it applies to doing it timely. Thus, if you don't hear back from the good people at your RO in twenty working days, you can assume it is somewhat of a deemed denial. That's when you up the ante by taking it to DC and threatening to "appeal". The head office will simply make the RO put down what they're doing and comply with your request-sooner rather than later. Until I began utilizing the legal language that forces VA to provide me (or others I help) with the file, they would pretend to be deaf. Once you insert the FOIA and the 5 USC language in, it cannot be ignored. They then realize you are not a turnip farmer doing this in your spare time.

As for any VSO or service representative telling you that you do not want to create an "adversarial environment", please inform them immediately that this is impossible. The VA ex parte system of justice is nonadversarial and a Veteran friendly environment in which to adjudicate our claims. Congress ensconced that in the VJRA purposefully to show America's appreciation for our sacrifices. VA is required to bend over backwards to accommodate you. Period. You are considered to be judicially incompetent to do this on your own. A VSO is not considered "legal help" but more of a "minder" who guides you (imperfectly) along the path to success. When that fails, you lawyer up and begin in earnest. VSOs are generally appalled when you have the audacity to question their judgement. Considering they have no legal training, you are foolish to depend on anything they suggest.

Be careful. A NOD moves you out of the bargaining arena and into the appellate review colosseum. They are two totally different venues as some Vets unfortunately learn about too late. Another valuable read is VA OGC Precedent 9-1997. It explains the conundrum of filing new and material evidence AFTER a NOD but before the completion of your substantive appeal (Form 9). See attached.

Clear Prop

Prc09-97 (2).doc

Edited October 30, 2013 by asknod

[FormerMember]

In retrospect, TC, file a NOD on the last day feasible (prior to 12/27/13) just to protect yourself. Make sure you carefully document it via a Certified mailing. Voice your disagreement with the decision(s)broadly and say that more evidence may be forthcoming. Insert language that says you are still awaiting reconsideration of your claims based on ______________. This will simply cement the foundation in the event of a substantial appeal. If you resolve it at the RO level and do not need to proceed further, you have at least protected yourself against endless litigation and a freestanding claim to retrieve your old effective date. If you haven't already, file something that qualifies as new and material evidence in order to make it truly legal and stand up on appeal. Asking for a reconsideration based on a factual argument absent any new and material evidence will not stand up in Court and you'll lose your effective date you seek to preserve. More Vets (and their representatives) step on their neckties over filing a disagreement within a year than you can count. VA doesn't make it easy and often tries to confuse you. Having a meek, recalcitrant VSO is not a recipe for success either. Best of Luck.

[63SIERRA]

I love your spirit NOD. There is an ancient chinese saying that basically translated to this..

A LION CANNOT KILL ELEPHANT IN ONE DAY. BUT IF THE LION BITES THE ELEPHANT ONCE A DAY. HE CAN KILL AN ELEPHANT IN A WEEK.

This is the mentality you must have when battling an entity that is much larger., and powerful than you are. little victories, till they tire and retreat.

[FormerMember]

The Jews learned, to their ultimate dismay, the futility of appeasing Hitler. VSOs continue in the same vein thinking somehow if they don't make waves, that VA will be munificent. I was told in 1992 not to worry about my shiny new 0% tinnitus rating. My very learned DAV NSO said we'd just come back later in 1995 or so and get that 10% I was really due. He said he didn't want VA to get the impression "we" were greedy. That is the mindset you are working with.