If you’ve been following the Veterans Law Blog, you know my believe that your C-File is the most important document in your entire VA Benefits Claim or appeal.
What do you do, though, when you have a hearing coming up and you don’t have your C-File – or time to get your C-File?
That’s the question posed this week by one of our followers, who asked to remain anonymous. He writes:
“I have been preparing for a hearing in 2 weeks. Everything I have read from the Veterans Law Blog has been helpful in some form or another. I have gotten everything together except for my C-File. I have all the information the VA has sent me back but I don’t have my C-File and don’t have time to get it for the hearing.”
What does a Veteran do in this situation? (I’m assuming that this is a DRO Hearing at the VA Regional Office, and not a BVA Hearing. My answers would be completely different for a BVA hearing).
I want to be clear – my suggestions are ideas only.
I am not recommended any particular course of action in your claim, and as with any post on the Veterans Law Blog, these ideas do not constitute legal advice.
I can’t tell you what is the BEST option is for your specific VA Benefits claim, since I haven’t seen your C-File (and since I’m not your attorney).
These are general ideas only, meant to give you an idea of the options that might be available to you. There may be more – or fewer – options in your particular case.
Option 1: Do not get into this situation in the first place.
Don’t wait until you have a DRO Hearing, or a BVA Hearing. Get it now.
You only get a chance to have a face to face meeting with a VA employee or BVA Judge about once every 3 years, if you are lucky, so it has got to count.
As Ben Franklin said: “An ounce of prevention is worth a pound of cure.”
Option 2: Go to the Regional Office before the hearing and try to get a copy.
If you live close to your Regional Office – stop in a few days before the hearing (bring your hearing notice), and ask to review your C-File.
If you show the FOIA officer your hearing notice, you may be able to talk them into making a copy for you to prepare. Just remember the old adage: “You catch more flies with honey than with vinegar.”
I’m not saying to “kiss anyone’s ass” – I am saying that a smile and a polite request and explanation will take you miles further than barking about obligations, responsibilities and duties.
If they don’t let you see your C-File, or don’t make a copy before the hearing, write down the names of the individuals that refused you access, and indicate on the record at the DRO Conference who refused to let you see your C-File and when.
It won’t help you prepare for the hearing, but an attorney down the line may be able to make an argument that an adverse decision should be vacated because the VA failed in its Duty to Assist (this is a harder argument to make than you might think).
Option 3: Use your time at the DRO hearing to review the VA Benefits C-File with the DRO.
If travel to the Regional Office isn’t an option, then you should take advantage of the time at the DRO hearing to have the DRO talk to you about your C-File.
The DRO Officer’s Duty to Assist – by law – includes a requirement of showing what evidence exists in support of your claim, and what elements of your claim are lacking supporting evidence.
Use the C-File Summary Worksheet that is in my eBook “How to Get Your VA Claims File”, and have the DRO walk you through your C-File and SHOW you the evidence that fills in each box, and to show you which “boxes” are missing evidence for each medical condition you are trying to service connect.
Option 4: Ask the DRO to make a copy of the C-File at the hearing.
My least favorite option, and the least likely to succeed. The DRO is most likely going to “punt” and tell you to mail in a VA Form 3288 (the most worthless of all the VA Forms) and get a copy after the hearing.
But, if you can talk them into making a copy during the hearing, you are going to want to do two things:
1) Reschedule the hearing asap
2) Go “on the record” at the hearing and indicate that because the VA failed to get your C-File that you lost the opportunity to argue your appeal.
The key to ALL of these options is making sure you have a proper request for a VA C-file well BEFORE the hearing – and then documenting for the record that the VA failed to assist you by providing the copy and giving you time to prepare for the hearing.
Bottom line: None of the above are “good options” in your VA Benefits Claim.
You probably won’t be happy with anything that happens at a DRO hearing if you don’t have a copy of your C-File well before the hearing.
Don’t waste your time being mad at the DRO or FOIA officer.
They might not be willing to do the things you ask – or the things that they are supposed to – but you are not going to win them over if you get mad at them.
Your job in this scenario is to do your best to get your C-File before (or during) the hearing and then include documents in the official record the VAs failure to assist you.
Key learning point – don’t wait until you have a hearing scheduled: get your C-File now!
