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!?)

[free_spirit_etc]

I never could understand why the VA uses the FOIA anyway. As these are records about you, they should be covered under the Privacy Act.

http://www.justice.gov/opcl/privstat.htm

(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;

Edited October 5, 2013 by free_spirit_etc

[free_spirit_etc]

I think they like to stay away from the Privacy Act though - because it says:

(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.

[free_spirit_etc]

The Privacy Act also each agency shall:

(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;

[free_spirit_etc]

Can you even IMAGINE if veterans started requesting that their records be maintained in a way that is accurate, relevant, timely, and complete enough to insure fairness to them in any determination the agency makes about them? And either amend records so they are accurate (upon the veteran's request) within 10 days OR notify the veteran within 10 days of their refusal to amend the record, and have a final determination from the head of the agency in regard to their refusal to amend the record, etc. etc. etc.

Talk about backlog....

[blazer1996]

Plenty of good advice here, but if I have come away with one thing it would be this. Asknod is soooo right. If you can find any way to get INVOLVED in your claim, you should do it. Yes, stick your face in there and make something happen. I know that everyone in the system does whatever they can to keep you out of the process, but you have to persist. If you have a VSO who couldn't pick you out of a line-up and thinks that PTSD means pass the sugar donuts...GET A NEW VSO. The recent backlog and acompanying excuses for poor service have made it too easy for SO's to just parrot the "party line". "Be patient", they will tell you. I was patient for 364 days with my claim. On day 365 I did something radical. It may have had absolutely no impact whatsoever on my claim, but it sure as hell made me feel better. It made me feel that I was involved in MY CLAIM. And, It got someone's attention. Four days after I took personal responsibility for my claim I was contacted by VBA in DC. Four days after that, I had a decision. (Yes, I can document what I just said) My method will not work for everyone. And, there is nothing at all to make me think that my "contact" with VBA was of any help at all in influencing the final decision I got. But, I felt better. I felt like I was "in the game", not sitting on the sidelines. I agree with Asknod that there is little chance that anyone is going to throw your C-File in a dumpster just because you ask for a copy of it. Do what you can to make them get it right the first time. I'm 67 years old and in poor health...I don't have time to let them fart around for another year trying to get it right. One more piece of free advice (that means you get what you pay for). BE RIGHT. If you are one of those folks who has 14 claims pending and little chance of proving any of them, I wish you nothing but good luck, but YOU are your worst enemy. Don't be a crackpot, because unfortunately, they also, IMO get "someone's attention".

Special thanks to the three "elders" on this site who told me I needed my head examined for contacting VBA the way I did concerning my claim. Please send me an email address and I will send you a dated copy of my rating decision.

Sometimes, desperate times call for desperate measures. And, Yes I did read the book.

Edited October 5, 2013 by blazer1996

[free_spirit_etc]

"One more piece of free advice (that means you get what you pay for). BE RIGHT. If you are one of those folks who has 14 claims pending and little chance of proving any of them, I wish you nothing but good luck, but YOU are your worst enemy. Don't be a crackpot, because unfortunately, they also, IMO get "someone's attention".

I get a bit puzzled with conflicting information that people should file for everything they think they are entitled to, but also if they file for too much, it could hurt their chances of getting anything approved.

When I first looked at my husband's C-file he would appear to be "not credible" because many things were denied. But when I looked closer, he had a legitimate basis for all the conditions he claimed but they were still denied. Part of that could be based on the fact that he attributed many of his conditions to Gulf War illness. The VA was able to slip right past considering whether the conditions could be service connected based on their subsequent diagnosis's - and based on the record, they certainly could have been SCed.

I mean - for gosh sakes - On his claim for headaches he described two headaches. One started above the right eye and had pressure down the right cheek. The C&P examiner had his sinuses x-rayed and they showed sinusitis and blockage on the RIGHT side (right where my husband said he has pain).. He opined that my husband’s first headache was a manifestation of chronic sinus disease. He also noted my husband underwent an x-ray of his sinuses on September 3, 1982 and the xray was shown ethmoid and maxillary inflammatory changes of the chronic type.

Yet the VA said "A review of service medical records showed diagnosis of sinusitis in September 1982. A chronic disability with sinusitis is not shown by the service medical records." They overlooked the fact that the condition was diagnosed as chronic in service with x-ray evidence, even though the C&P examiner pointed it out.

The second headache started at the back of the neck and radiated up to the temples. The C&P examiner diagnosed them as cervicogenic headaches secondary to hypertrophic degenerative osteoarthritis of modest degree. My husband had claimed for cervical strain when he retired. Though his SMRs showed a neck injury, the C&P examiner at that time said his condition wasn't "disabling." They continued to say it wasn't disabling on subsequent exams, though he showed limited range of motion in extending his neck and the 2002 exam finally started showing some evidence of bone spurs on the x-ray. The 2003 C&P examiner made a copy of the 2002 x-ray and noted that the facet components in the x-rays were obscured by position, and he drew lines and pointed out how the x-ray (done the year before) showed calcification in the interior long ligament. So, the x-ray evidence was finally starting to show what my husband had told them from the time he retired - His neck hurt. But the VA just noted that the doctor had noted that the headaches were cervicogenic headaches secondary to hypertrophic degenerative osteoarthritis (and thus, they weren't an undiagnosed illness).

These, and other claims, were clearly supported by the evidence in the record. The VA did not have to dig too deep to find that - In fact, they had to ignore that the C&P examiner stated his sinusitis was diagnosed as chronic in service, and they had to ignore the fact that the C&P examiner used the 2002 x-ray (that was taken to determine if his cervical injury was disabling) in order to deny the claim.

But these claims still sit there in his record, denied, making it look like he filed multiple claims for conditions that were not related to the service. So a BIG part of my wanting to see if any of those claims could still be considered for accrued benefits is not about the money. It is about standing up for my husband's honor and saying "Damn it! He told you he hurt!"

Special thanks to the three "elders" on this site who told me I needed my head examined for contacting VBA the way I did concerning my claim. Please send me an email address and I will send you a dated copy of my rating decision.

Okay. Now I am interested in finding out how you contacted the VA "the way you did."

Edited October 5, 2013 by free_spirit_etc