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Attempted Strategy to Get C-File-NOW


rootbeer22

Question

Vets:

Unfortunately, I had to file my first NOD this week without the benefit of having my C-file after almost 11  months waiting for it? As you know, that puts us Vets at a distinct disadvantage because we cannot see the contractor CP Exams to see  and question the opinions? At one point in my life, I was a FOIA Officer and know the rules very well. The government has 20 business days to fulfill a request for FOIA but can ask for another 10 days if they have cause and inform the requester? Ironically, I used the new form to request the FOIA/C-File so there's no issue there? But in my case, the e-benefits status this week says that it will be at least  2 more years before I may see my claims files for a total of 3 years from the initial request? In contrast, a Vet only has one year to file a NOD so this does not add up or it is not fair? The FOIA Laws also say that it's not a valid excuse that an agency is too busy or has a large case load which excuses the agency from fulfilling the law?

Anyway, I sent a letter to the Director, Office of Government Information Services (OGIS), to appeal the wait for my C-File? Their primary federal responsibility is to monitor other Government FOIA Agency Programs for Compliance, Operations and Training.  I also sent a copy of that same letter to the VA General Counsel, Leigh Bradley, VA National FOIA Office Team and Director of  the VA Intake Center in Janesville, WI. to advise them that I have asked for help from the OGIS. I was careful not to send a letter directly to the VA Secretary yet because like I told all of these VA Staffs that I've been trying to resolve this at the lowest level possible? However, there's something very wrong with a system that should have  provided records in about three weeks that is now taking upwards of three years? Besides, from a legal perspective, an agency can't just ignore the FOIA  regulations and if they need more resources then perhaps their senior leadership  should be notified? At this point, I've tried to exhaust all of my administrative actions to obtain my C-file before I get to the point were I may have to eventually have to  take legal action.

Right now, too many Vets are in the same predicament as I am in and some kind of overall resolution needs to be happen soon? Overall, It's probably just means that the VA Intake Center needs more staff and that may fix it? Consequently, yesterday I watched a congressional hearing about VBA records issues and a senior VBA representative said now that 98% of veterans records are now digitized, so they should be able to just make a disk and send the C-files right out?

Anyway, I'll report back to hadit.com what happens? Who knows, I could be pleasantly surprised in a few days or maybe nothing may happen at all -but at least I'm trying something?

 

Godspeed Rootbeer22

 

 

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2 hours ago, rootbeer22 said:

Unfortunately, I had to file my first NOD this week without the benefit of having my C-file after almost 11  months waiting for it

I am not a lawyer, but If this is not a violation of due process then I don't know what is.

Quote

The United States Court of Appeals for Veterans Claims (Court) has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties."  Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 (1926)).  The presumption of regularity attaches to "all manner of VA processes and procedures."  See Woods v. Gober, 14 Vet. App. 214, 220 (2000).  Thus, it follows that the presumption is applicable to VA employees' theoretical handling of a NOD filed by the Veteran.  Absent clear evidence to the contrary, VA is entitled to the presumption that a VA employee would have properly handled the Veteran's NOD had it been filed in a timely manner.  In addition, as government employees, employees of the United States Postal System are also entitled to the presumption of regularity in handling and delivering mail, to include any mail sent by the Veteran to VA.

In your case, and in many others, the VA totally failed to follow the "presumption of regularity" (which is a lot of hogwash).

Like other VA-related rules, laws, and policies, the NOD window was designed without reality in mind and is clearly outdated. Yeah, 12 months is easy to calculate on a calendar and the the VA loves to use it against veterans. But when the VA itself is the barrier, they should not hold it against you.

In my opinion, it is impossible for you to file a fully developed NOD under given your current circumstances. I personally think the NOD clock should be frozen the moment a veteran requests a copy of their c-file, C&P exam results, or any other correspondence from the VA. I have heard from other veterans that they have received their evidence from the VA at the 11th hour and had to scramble to respond. If common sense changes were enacted, the clock should then resume running once the veteran notifies the VA that they have received the documentation (sending via return receipt w/signature, etc...).

 

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3 hours ago, rootbeer22 said:

Vets:

Unfortunately, I had to file my first NOD this week without the benefit of having my C-file after almost 11  months waiting for it? As you know, that puts us Vets at a distinct disadvantage because we cannot see the contractor CP Exams to see  and question the opinions? At one point in my life, I was a FOIA Officer and know the rules very well. The government has 20 business days to fulfill a request for FOIA but can ask for another 10 days if they have cause and inform the requester? Ironically, I used the new form to request the FOIA/C-File so there's no issue there? But in my case, the e-benefits status this week says that it will be at least  2 more years before I may see my claims files for a total of 3 years from the initial request? In contrast, a Vet only has one year to file a NOD so this does not add up or it is not fair? The FOIA Laws also say that it's not a valid excuse that an agency is too busy or has a large case load which excuses the agency from fulfilling the law?

Anyway, I sent a letter to the Director, Office of Government Information Services (OGIS), to appeal the wait for my C-File? Their primary federal responsibility is to monitor other Government FOIA Agency Programs for Compliance, Operations and Training.  I also sent a copy of that same letter to the VA General Counsel, Leigh Bradley, VA National FOIA Office Team and Director of  the VA Intake Center in Janesville, WI. to advise them that I have asked for help from the OGIS. I was careful not to send a letter directly to the VA Secretary yet because like I told all of these VA Staffs that I've been trying to resolve this at the lowest level possible? However, there's something very wrong with a system that should have  provided records in about three weeks that is now taking upwards of three years? Besides, from a legal perspective, an agency can't just ignore the FOIA  regulations and if they need more resources then perhaps their senior leadership  should be notified? At this point, I've tried to exhaust all of my administrative actions to obtain my C-file before I get to the point were I may have to eventually have to  take legal action.

Right now, too many Vets are in the same predicament as I am in and some kind of overall resolution needs to be happen soon? Overall, It's probably just means that the VA Intake Center needs more staff and that may fix it? Consequently, yesterday I watched a congressional hearing about VBA records issues and a senior VBA representative said now that 98% of veterans records are now digitized, so they should be able to just make a disk and send the C-files right out?

Anyway, I'll report back to hadit.com what happens? Who knows, I could be pleasantly surprised in a few days or maybe nothing may happen at all -but at least I'm trying something?

 

Godspeed Rootbeer22

 

 

One of the problems with the digitization is that the original paper files seem to become inaccessible. In the process of preparing for the effort, The VA (around 2008) supposedly went through the files, and removed (redacted) extraneous information. No one knows what was actually removed.  Earlier this year, I was told that my VARO still had the paper files. Last year they were supposedly not available for a BVA traveling board hearing ?? Copies the VA has sent in the past contained some blank pages, and some older claims records mysteriously vanished.  It may be that a Writ will be the only way.

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Rootbeer

I had a QTC PTSD  C&P on 1-6-16...I got my c&p exam Report 3 weeks after the exam...I went to the BVA and seen a  VSO and Requested my  report ...He made copy of it for me....2 weeks later I got my decision.

..........Buck

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Who is MaryAnn.Wentzel 1@va.gov   ?

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Folks:

Thanks for the comments..only time will tell if it's going to make any difference at all..and hopefully there will not be any negative -blow-back with my case? The "presumption of regularity" is just some legal ease that a very smart lawyer came up with. I have no doubt that the folks at the Intake Center in Janesville, WI are working as fast as they can...and are probably great folks...but there is probably not enough of them to do the job..as it should be? I really feel that I was at a disadvantage with the NOD and the package would have been more compelling if I had the exams? If I do get the C-File, I'll send in additional evidence to the NOD because I'm sure it will be years before I get any kind of meaningful action on the NOD anyway?

 

By the way..who is Mrs. Wentzel?

Godspeed Rootbeer22 

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