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Landluver

Question

I first filed a unemployabilty claim which was denied. Then vso recomended I file for increase in comp which was approved 6 months later. My question is I belive the denial of unemployabilty was wrong and should have been appealed. I think that with the claim the original unemployabilty claim was reopened which would resulting somewhere around 18,000.$ in back pay.

Should I now appeal the unemployabilty claim, or be glad I'm now 100% t&p?

Thanks Al

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I have a letter from the Regional Office my state stating that a veteran already rated 100% schedular is ineligible to be considered for tdiu even with ratings of 60, 50, 50, 40, 30, 20, and several 10's. This is being appealed for SMC(s), based on Buie. What the RO is saying is that the veteran is a victim of bad timing, that simply because the veteran was previously rated totally disabled based on schedular criteria, the RO is prevented from changing that to IU, even if the facts would support IU. The RO is supposed to consider the best interests of the veteran, which in the case I'm dealing with now, did not happen.

My point in bringing this up Landlubber, is that you may run into a similar challenge, but to my knowledge, there is absolutely no statute that ties the RO's hands and prevents it from changing a total schedular rating to IU if your ratings justify it.

Edited by lotzaspotz
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Sorry, but the acronym thing is driving me crazy, don't know how to avoid the redundancy. Didn't we once have a pinned acronym list of what the acronyms stood for?

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Now I'm tossed as to should I or should I not appeal this. It may have been error of mine or the vso in applying for TDIU. I certainly do not want to risk any decrease, because this and my ssdi are my only source of income. I do not need to go through the stress of nearly losing every thing again.

IDNK!

Thanks Al

I think you have answered your own question in what I made red above.

Even if they would owe you the retro - can you physically and mentally take

whatever they throw at you ?

Personally, I can take no more.

I tucked my little tail between my legs and scurried off to leave me the "F" aloneville.

Also, for members to be able to provide better answers, can you post the

Reasons and Bases Section of the decision that denied IU and the same from your

most recent decision.

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No, not necessarily. A veteran can have a high enough disability rating to be considered unemployable for one disability, and hold the series of ratings I previously listed that total 100% schedular disability, yet an RO can (and did) still deny the veteran is unemployable. This would be a pre-emptive strike preventing the veteran from gaining authorization on a statutory basis for SMC (s). I believe the following CAVC cases illustrate the point. Read Buie and Bradley (CAVC) and see what your take on it is.

http://www.veteranslawlibrary.com/files/CAVC_cases/2011/Buie_08-2705.pdf

http://www.uscourts.cavc.gov/documents/Bradley_v._FINALWITHNITS.v.3.12.03.08.pdf

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