It never ceases to amaze me what some of you are forced to go through to pry a copy of your c-file out of the cold, deadly fingers of the Regional Offices. The stories I have heard make me ashamed to think the Veterans Administration can hold its head high and proclaim they represent us and our interests.
A c-file, more properly called a claims file, is a compendium of everything that has transpired between you and the VA. Every letter you have submitted, every Vocational Rehabilitation or training program you have ever attended courtesy of the VA; in sum, any conversation you have engaged in on the 800-827-1000 Dialing for Dollars/Prize Redemption Center is compiled there to better understand you and your gripe/claim.
When you have a protracted battle with the VA, this file can become an interesting repository of information-not all of which you are aware of. VA is not in the habit of “cc: the Vet”. In fact, when it comes time to appeal and stand your ground, you need the information in the file to assemble your defense. You may have lost a copy of something you mailed them. You may want to refresh your memory of the circumstances surrounding the claim. Of most import, you need to make sure there are no extraneous records from other Vets that have inadvertently been associated with your file. When I finally received my second copy following my loss at the BVA in 2012, the first thing I discovered were records of another Vet and internal memos from the VA confirming rental of a ballroom near the Seattle Tacoma Airport for a scheduled conference. Oh, and a few cartoons from one rater to another.
Another major reason for obtaining your file is to be certain everything you have submitted as evidence actually made it there and was included. VA’s propensity to drop c-files and “accidentally” spill some into the waiting jaws of a shredder are fairly well documented. Thus, if you filed for things in 2008 and decide to reopen them in 2013, it is possible your file has suffered “shrinkage” without your knowledge. Regardless of the reason, you need your own copy in case VA’s magnificent computers crash some day and we have to revert back to the old trustworthy analog version that VA still currently employs. VA’s take on this is that the c-file is inviolate and closely guarded against any untoward insertions of a spurious nature or, God forbid, another Vet’s records. In the absence of verification, your c-file actually comprises whatever VA says it does and you have no legal recourse to do or say otherwise. This is the “Presumption of Regularity” clause that holds VA is presumed to do everything correctly unless you have incontrovertible proof to the contrary. With a copy of your c-file in your own hands, you in essence protect the VA from themselves. It”s a win-win for everyone but the VA doesn’t exactly see it that way. To their way of thinking, you have no business nosing around their file. Only VSO service reps who don’t know what they’re doing are permitted this luxury-unsupervised no less.
On occasion, and ever more frequently in the wake of a protracted backlog, the VA is getting further and further behind in requests for copies of our files. I would point to one example which is extremely outlandish-our very own Leigh Ann and her two year battle to obtain her file to see why VA is denying her.
I have taught that part of winning is being able to comprehend the reason for a denial in the first place. In a more perfect world, we would all file the bulletproof claim described in my book and win. End of story. In the real world of 85% denials, however, it becomes necessary to study your files to grasp the reason for an unjust denial. This also gives you the needed ammo to craft a better case and win it.
The Freedom of Information Act (FOIA) gives us certain rights and the VA is required to comply with them or face censure. This rarely daunts them. Upon request, they are legally required to hop to it and get a copy of your file to you within ninety days or face the consequences of failing to do so. To date, Vets have yet to see the consequences of VA refusals, but that isn’t the subject of this lesson.
The Veterans Benefits Manual, put out by the National Veterans Legal Service Program (NVLSP), has just the ticket. They have several sample letters for Advocates, such as lawyers or VSOs, to employ that incorporate the legal euphemisms and statutes that make the little pukes down at the ROs quail. I have taken the liberty of massaging them for use by self-represented, pro se Vets. You really don’t need any help getting the file regardless of the VSOs’ argument that you can’t go to the VA bathroom without them.
Herewith, I print for you a sample letter you can copy and paste directly into a Micro Word program. Be sure to send it Certified mail, return receipt requested otherwise VA will claim they have never seen it and are terribly sorry.
FOIA / Privacy Act Officer
VA Regional Office
1234 Yellow Brick Road
Oz, Kansas 60609
Re: Joseph Average Veteran
VA Claim Number: 12 345 678
Social Security Number: 987-65-4321
Dear Sir or Ma’am:
This is a request for documents under 38 U.S.C. §§ 5701(b)(1) and 5702; 38 C.F.R. §§ 1.525, 1.526, and 1.577 (2011); and the Freedom of Information Act (FOIA), 5 U.S.C. § 552, on behalf of myself, Joseph Average Veteran.
I hereby request a copy of all documents contained in my VA claims folder, to include all documents in the right flap, left flap and center flap, as well as any temporary files. Please forward the copied documents directly to me at the following address:
[your address here]
As provided in the FOIA, please respond to this request within 20 (twenty) business-days. I may be contacted at (202) 867-5309 if there are any questions. Thank you for your assistance.
(don’t forget to sign here)
Joseph Average Veteran
A sidebar here. The left flap of a c-file contains dependency issues-i.e. your spouse and children, how much (if any) they are being paid, etc. The center flap is all the judicial decisions, ratings and your correspondence with them. The right flap contains anything of or having to do with Vocational Rehabilitation matters, training, Independent Living Program etc.
Now, since we live in an imperfect world where 20 days in VA time is measured in Jupiter days, we often are required to send a polite reminder a month or more later to remind them that somehow, due to some glitch that they are probably unaware of, your request has been waylaid, misplaced or otherwise is temporarily unavailable for viewing. This second missive should not be judgmental or confrontational. Discussions about VA employees being raised by wolves are inappropriate because you do not have anything more than anecdotal proof. VA calls this “speculative”. A simple recital of the events and date of the last letter as well as the USPS Certified Mail tracking number and a full-color copy of your green card (both sides) showing it was signed for by _______ _. ______ is usually sufficient. For entertainment value, you can go to my widget VARO Who’s Who at the top of the page and look up the employees of your local RO. The lowest paid GS mailroom employee who signed for it will probably be listed there in the event his signature is illegible. You can show your familiarity with the system by correctly spelling out his name and GS rating as the one who acknowledged receipt of same. This really rolls their socks down. I send this after they do not respond to my first request.
After a suitable time waiting and hearing nothing, it is then time to “take it up a notch”. Here’s letter number three. This, you will notice, is to the Head Office (Office of General Counsel or OGC) asking them to see to it that their hired help get off their poor, tired, bonus-calloused asses and make a copy of your c-file and be quick about it. Again, no talk of wolf parentage. Be polite. I have always known Veterans to be cultured, well brought up and patient so please do not sully our good name.
Department of Veterans Affairs
Office of General Counsel (024)
810 Vermont Avenue, NW
Washington, DC 20420
Re: FREEDOM OF INFORMATION ACT ADMINISTRATIVE APPEAL
Joseph Average Veteran
C- file # 123-45-6789
To Whom It May Concern:
This letter constitutes an administrative appeal of Department of Veterans Affairs (“VA”) action concerning a request for documents made under 38 U.S.C. §§ 5701(b)(1) and 5702; 38 C.F.R. §§ 1.525, 1.526, and 1.577 (2011), and the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
In a letter dated (month day, year), I submitted a FOIA request for documents on behalf of myself to the _(city)_, _(state)_VA Regional Office (VARO). See Attachment A. I requested a copy of all documents contained in my VA claims file. A certified mail return receipt shows that the RO received this request for documents on (month day, year). See Attachment B. However, to date, I have received no response to this request.
The failure of the VA to respond to this request is in clear violation of 5 U.S.C. § 552(a)(6)(A)(i), which requires the VA to determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination. Today marks the __th working day since the RO received my request for the c-file documents.
I request that the VA release the requested records immediately. In any event, please make a decision regarding this appeal within twenty (20) working days, as required by 5 U.S.C. § 552(a)(6)(A)(ii). If you have any questions, you may contact me by telephone at (202) 867-5309.
(be sure to sign here)
Joseph Average Veteran
Enc: Copy of Letter to (your) RO, dated (month day, year)
Copy of Certified Mail Return Receipt
§§ 5701(b)(1) and 5702; 38 C.F.R. §§ 1.525, 1.526, and 1.577 (2011), and the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
You have now prepositioned yourself for a Writ of Mandamus at the CAVC if the VA remains recalcitrant and ignores you. We have had this happen as I mentioned to Leigh Ann, one of our very own members. I suggested she bypass any more of the standard letters above because, after two years, it’s more than obvious they’re plumb funning her. Leigh Ann followed my advice and they contacted a very able attorney who did just that. I enclose some of her (and VA’s) correspondence as well as a scathing denouncement of VA’s actions following the filing of the request for the Writ.
On July 13, 2013, petitioner Leigh Ann filed through counsel a petition for extraordinary relief in the nature of a writ of mandamus seeking to have VA provide to her attorney both a photocopy of her claims file and contact information for the VA employee responsible for supervising the photocopying process. She also requests attorney’s fees. Ms. Leigh Ann argues that she requested a copy of her claims file on April 25, 2012, and that the Baltimore regional office (RO) sent her a June 20, 2012, letter acknowledging her request and explaining that she would receive a prompt response. Despite the RO’s letter, she argues that she has not received a copy of her claims file. She also alleges that, between July 30, 2012, and June 17, 2013, she has sent requests for her claims file to the Baltimore and Detroit RO, VA Office of General Counsel, and Office of Government Services. Petitioner’s Brief Ex. A-M. She states that these letters, and various telephone calls to the Detroit RO, have been unanswered. Before proceeding to adjudicate the merits of the petition, the Court requests a response from the Secretary that addresses the allegations in the petition and provides supporting documentation. On consideration of the foregoing, it isORDERED that the Secretary, within 30 days from the date of this order, file an answer to the petition addressing its specific allegations and providing any documentation necessary to aid the
Court’s resolution of this matter.DATED: August 21, 2013
This is napalm to the VA. Their good name has now been besmirched by Leigh Ann even if she and the attorney refrained from using the pejorative “raised by wolves”. VA officials in DC tend to drop everything they are doing, come back from their three-martini lunches and roll up their sleeves. AT&T’s fiber optics heat up as they get to bottom of it. Some lazy daughter of a gun up in the Detroit RO has to apologize and fall on her sword. She is forced to pick up the phone and actually call Leigh Ann to ask her where to mail the c-file. No explanation for the horrendous delay. No apology. Nothing. Just a rude “Where d’ya want this sucker, babe?” Leigh suggested that, under the circumstances, it might be appropriate to send it to the gentleman who requested it- that being her attorney of record. And then we have Gen. Shinseki’s response about the product shipped from Detroit. Apparently Leigh Ann and her attorney were not very helpful. Mr. Snyder failed to return the VA employee’s phone call. Shocked. I am shocked. What boorish behaviour on her attorney’s part.
The Secretary advises the Court that personnel from the Detroit RO, Ms. Littles, contacted Petitioner by telephone on August 22, 2013, requesting an alternative address to her Post Office (P.O.) Box number because the United Parcel Service (UPS) could not deliver a package (containing the copy of the claims file) to a P.O. Box. See Exhibit. Petitioner informed Ms. Littles that the copy should be sent to her attorney, Mr. Snyder. Id. Ms. Littles then called Mr. Snyder and left a voicemail message for him requesting that he contact her concerning the delivery of the claims file copy. Id. Mr. Snyder did not respond to the voicemail message.ld. UPS tracking information reflects that the package containing the copy of the claims file was delivered to Mr. Snyder on August 27,
2013, at an address in Rockville, Maryland, and that Mr. Snyder signed at the time of delivery.
With regard to a delay in providing a copy of the claims file, the undersigned was informed by personnel at the Baltimore RO that the causes for such a delay included a high level of inventory, high volume of mail, and workload prioritization at the Baltimore RO. Personnel at the Detroit RO informed the undersigned that the claims file was forwarded to the Detroit RO as part of a special initiative to assist the Baltimore RO with claims processing and completion.
So if we understand this, the concerned raters at the Baltimore VARO, which is inundated in work, shipped it off to Detroit’s VARO which is in deeper claims shit that Baltimore. And:
The undersigned was further informed that following the issuance of the June 2013 rating decision the claims file was mistakenly forwarded to the scanning vendor on June 10, 2013. Pursuant to the special initiative, all claims files from the Baltimore RO were forwarded to the vendor for scanning after completion of the claims process. However, the undersigned was informed that Petitioner’s claims file should not have been sent to the scanning vendor in light of Petitioner’s request for a copy of her claims file. Personnel at the Detroit RO, as well as the Secretary, apologize for mistakenly forwarding the claims file to the vendor and further delaying Petitioner obtaining a copy of her claims file.
And the best of all:
The Secretary submits that where a claimant achieves the result desired in a petition because of a voluntary change in the Secretary’s conduct, rather than through a confession of error or a finding of error by this Court, the claimant is not a prevailing party for EAJA purposes.
So, from reading this, Ms. Littles, the tired, overworked, overbonused Detroit VA employee who drew the short straw, had to actually call a Veteran and ask her where to mail the c-file because she couldn’t be bothered to look up the correct address herself (in the c-file she was holding). I can almost hear that Steve Martin- ” Well. Excuuuuuuuuuuuuuuuuse me! You mean you want me to look up the address? Are you mad?”
Last but not least, we have the petitioner’s response to this insanity. Lawyers are great for taking the phrase “Raised by wolves” and ameliorating it such that it doesn’t grate on the ears quite so rudely. It’s also an opportunity to inject some irony into the conversation and make yourself appear to just be a bumbling law dog striving to comply with the ever changing VA rules. I pluck from the response the low-hanging fruit:
Further, from the Respondent’s September 19th response,
it is not clear whether the papers sent to the undersigned
were copied from the original claims file or from a “scanned” file prepared by an unknown vendor on an unknown date. It is not known where the original claims file is held although the undersigned did receive a telephone call from a Baltimore VA Regional Office employee who implied he had the original file. Telephone calls to that employee by the undersigned to address these issues went unanswered and unreturned.
And of special interest to all of you when you request a complete, certified, unredacted copy of the original c-file:
What is known is that copies of portions of the claims file previously sent directly to the veteran are not contained in the copy sent by the Detroit VARO. For example, the veteran initiated several Congressional inquiries for which she received some replies but these replies and memos from various VA personnel regarding her requests are not part of the records sent the undersigned. This suggests that VA withholds certain items in the original claims file prior to scanning or selects only certain records to be scanned.
Whoa. Say it ain’t so. Selective copying of a c-file (certified) to include redacting certain items? And that niggling little problem of another Vet’s records polluting your own?
Finally, the copy sent to the undersigned contains a record from another veteran. Who is the point of contact to request that this record be removed from the Petitioner’s original and scanned file and associated with the correct file?
This laissez faire approach to copying claims files may be endemic to the system and we simply are unaware of it. As I have pointed out more than once, VA is the keeper of this file if you neglect to. Therefore, the file contains whatever VA says it does. It is also presumed to be correct due to the Presumption of Regularity. Who are we to say differently? Or, in VA’s favorite parlance-“Prove it.” If you rebut the evidence and prove the c-file is contaminated or missing certain documents, the Presumption of Regularity is overturned and the whole file is open to re-inspection with all evidence being possibly tainted or corrupted. A very important concept to know.
And here’s an important update to consider too: