Got a Individual Unemployability question?

[Wayne TX]

I am currently at 50% and I have submitted and still waiting on Appeals for another 110%, of which one is a 50% rating for Sleep Apnea whereby I have fully compiled with all rating guidelines plus nexus backed by two IMOs linked to secondary s/c already cited in past BVA decisions on Apnea decisions............thus I do anticipate at some point having a minimum of a 70% rating derived from my Appeals whereby one disability would also be above 50% itself. .............thus MY QUESTION:  I did not seek or included in my Appeals for Individual Unemployability because am only 50% thus not qualified at this time to seek same.  In assuming my Appeal for Apnea is granted I will have acquired the required a total overall compensation disability rating  of 70%, so can I still make a run/claim for IU at my DRO Hearing, or does that need to be filed now before the Hearing ever takes place to even be considered?  I will receive a Video Conference Hearing at RO.  Has anyone out there sought IU at their actual Hearing Date and got it based on Appeals exceeding 70% or greater once the Appeals were granted and awarded?

[Wayne TX]

I agree with your line of thinking Buck........the only bottom-line that matters is getting granted and if adding strong new evidence (especially IMO's stating as likely as not + more likely than not on a Sleep Apnea appeal that has to be  ++++ in my book to get before them) during Appeal even if it takes longer to process them through. I believe it is worth some added time to try and get granted by a DRO at the RO Level than wait for a SOC (never got one yet for SA ) to finally happen at some point in time then have to submit the Form 9, and then wait maybe wait another 1-2 years to finally get a docket and then get a Hearing date.  My thinking if RO has not sent a SOC out now after  20 months since my NOD filing then that means it's still sitting at RO and no one has made a decision yet on that NOD.  I'm gambling submitting strong evidence to RO at any point in time in the process will still result in a faster decision than waiting around for my turn at a Hearing date, which won't even begin towards that process until I get a SOC anyway and file Form 9. That's my logic anyway.  I'm hoping , of course, adding evidence now before a SOC is issued my way will avert a SOC from happening, and then hopefully improves my chances for a favorable outcome within another 12 months.  If I'm wrong my gray hair will just get a little grayer.  Thanks for sending the explanation too. 

Edited March 12, 2018 by Wayne TX

[Buck52]

Yes  and on the'' is likely as not'/''more likely than not 50%'' ect,,,ect,,, Make sure the Dr is Qualified preferably a ''specialist'' in the field of medicine of your claim.

I think the rating for S.A. depends on the severity of the condition and  the apneas that occur during The night and the # of hours you sleep with & without the CPAP! 

I think the rating for S.C.  S.A. is an automatic 50% but not so sure.

check this link out about S.A. RULES CHANGES you may know most of it but it might give you some more insight with your S.A. Claim

Source: 

https://veterans.perkinslawtalk.com/post/bad-secret-change-to-va-sleep-apnea/

Wayne unless a Dr messes up and don't detail your condition correct or as a ''flaw'' I think you got this one buddy.

[Buck52]

Also I think a Veteran can over do his/her claim with tons of paper work that is really not necessary ...just enough paper work that gets straight to the point ,  the nexus for S.C. and a Dr's opinion to the S.A. Symptoms in your favor  any speculation from media notes or advertisements they will not consider. 

CFR's are good to use to remind them such as the rating criteria & adjudication  in the M 21-1 MR Manual.

Edited March 12, 2018 by Buck52

[Wayne TX]

I agree about going over board not necessary........that's good advise........the DRO needs to read just what matters.........we think they need more but it all comes down to just a few pieces of evidence that even matters. 

 

[Gastone]

Wayne, an SOC or SSOC is only completed regarding the original or continued Denial.

Buck, I'll look back for the VA M21 info regarding the Receipt of New & Material Evidence and the requirement for a Determination either to Reverse or continue the Denial.

As to late delivery of N & M  E and its effect on the eventual DRO Hearing, it stands to reason that the processing of the Evidence per VA Regs would add significant time to the Hearing Date being Scheduled.

A friend fracked up and got a DRO Review, he had no idea of when it took place instead of the Hearing he thought he had requested. It took close to 10 months for the Continued Denial and SOC to arrive. After which, he immediately sent in his N & M E that he had planned on turning in at his DRO Hearing, that he never had. Took another year to get an SSOC and a Form 9.

He's now on a BVA Remand, awaiting the RO Decision, all toll about 6 yrs now since the original Denial.

[Wayne TX]

Gastone......I am certainly interested in this info.............Buck, I'll look back for the VA M21 info regarding the Receipt of New & Material Evidence and the requirement for a Determination either to Reverse or continue the Denial. 

I figured submiting late N&M could throw them off,  but it was STRONG IMOs that could only improve my position since they never even got around after 20 months now on this particular NOD  (Sleep Apnea)  to inform me of anything.........I had 5 appeals total  and only two after 18 months time  came back as SOC and were both responded with Form 9.  The other three at VARO the VA  has not contacted me asking for more evidence,  nor to this day have received a SOC so I can only assume they can't decide or still gathering evidence?  What I'm saying, I guess, if they have not sent me zip after 20 months time now yet 2 of the 5  have been SOC denied again by RO they must be  having a hell'va time trying to decide how to decision the other 3?    My logic came down to even being   "LATE" can only help them to decide at some point in time............20 months is ridiculous to be left in the cold on three of the 5.  If I had not got the 2 of the 5 back as SOC denied again then I would still be thinking they have not decided anything yet on all 5.  I know they have not fallen through the cracks because of the two SOCs sent 3 months ago.

So what kind of added time is it usually?  It would seem to me if RO still has all my files for the remaining 3  with no SOC response  to date how can sending late evidence be treated as added  penalty time for their non-actions?  Just curious. All ears! 

Edited March 13, 2018 by Wayne TX
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