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]

On both my IMO's they addressed the "as likely as not" on the very first page and once again in the closing so it is not buried thank goodness....but a very good point made.

 

[Gastone]

The (2) supportive IMOs were delivered to your RO as New & Material Medical Evidence, when, before or after your Appeal was Certified by the RO to the BVA for Docketing?     Was an RO SSOC completed regarding the (2) IMOs?

 

[Wayne TX]

As far as I know..........this particular Appeal (Sleep Apnea) is still at RO and these supportive IMOs are simply new submissions of N&M evidence for their review.  I have never received a SOC on this particular Appeal (Sleep Apnea).  I am unaware if Appreals still under RO jurisdiction have to also be certified at RO level before new evidence is seen and evaluated? 

I know for a fact - no SOC has been received and no Form 9 has been filed on this particular Appeal.  It has been  2 years now on NOD  so I figured two updated IMO's in my favor might help speed it along a little more. .  

It does not say on eBenefits.....Appeal Pending - Substantive Appea to this particular Appeal.....it just says:  Appeal Pending - Notice of Disagreement..........VA has received your Notice of Disagreement. You will be receiving a communication from VA in the near future describing the next steps of your appeal.

 

[Gastone]

Late submission of N & M Medical Evidence to the RO will definitely add significant wait-time to your Appeal.

VA Regs require all N & M Evidence received pre-Certification and transfer to the BVA, to be reviewed and determined if it allows a possible reversal of a Denial Decision. That New Evidence Review Decision should be part of either a SOC or SSOC, both of which you have not received, correct.

[Wayne TX]

Correct have not received no SOC to that particular NOD (Sleep Apnea) to date.  Yeah, I knew late submission slows down Appeal processing time but with it all taking 3-4 years now figured RO could still move faster with new evidence that could turn the dial. 

I do have a bounce back question.   Why would any new "late" evidence submitted lead to getting a  SOC if the new evidence in fact does convinces the RO  DRO to drop the denial and grant?  I just don't understand the SOC part under that scenario -  I do if new evidence makes no difference.  Do you get a SOC even if they decide to reverse the denial  to tell you they're reversing and granting?   I have not been down this rabbit hole so I did not know new evidence would create a SOC by simply submitting new evidence.

I was hoping that new evidence would prevent getting a SOC as that seems to be bad news and amounts to starting all over again anyway.....back to providing more evidence needed and that may or may not work resulting in a SSOC.  Do I have this figured out any or not.......listening and learning. 

[Buck52]

Wayne I differ about it taking them more time to decide claims if you send in N&M Evidence they go by  first come first served  as to win they get to any veterans NOD.

If and when they get to your NOD is when they adjudicate it or say whatever they need , usually more evidence and sometimes they deny for lack of evidence.  it works both ways.

However it may take a little extra time for them to read the N&M Evidence  to make a decision but not years if it slows the claim down it should not make that much of a difference at this point, the point is you want your claim decided in your favor  so yeah it may take a few extra days for the decision  but it's worth it to wait .....> right? once they get to your NOD.  

The N&M Evidence may deem a C&P then yeah that may add about 30 days or so to fit that in. but if you been waiting a year or two three  what is an extra 30 days.  so in essence it should not matter if it does slow the claim down you want a good fair decision at this point.

Here is a little insight from an Actual DRO from the Milwakee Wi R.O.  as to

How the Claims process works from NOD's this might help you about your questions and confusement of the SOC or SSOC

Appeals are controlled by the date of receipt of the NOD in a system called VACOLS (Veterans Appeals Control and Locator System).  A single NOD may express disagreement the decisions rendered in a single Rating Decision, or it may express disagreement with decisions rendered in multiple Rating Decisions which have been issued in the prior year.  There is no limit to the number of decisions or ratings with which the Veteran may disagree.  There is also no limit to the number of NODs a veteran may have pending at any given time.  A Veteran may also continue to file new claims while his appeal(s) pend.

If a Veteran requests a Regional Office hearing, this must be conducted and we must receive the transcript before a decision can be rendered.  If the Veteran submits or identifies additional evidence, we must develop for and try to obtain the evidence prior to rendering a decision.  If VA examinations are deemed necessary, we schedule these and wait for the examination reports before rendering a decision.

Once the appeal issues are ready for decision (RFD), ideally, NODs should be worked from the oldest pending to the newest received, with the exception of priorities, which include Homeless Veterans, Seriously Injured/Wounded Veterans, Congressional Inquiries, and Financial Hardship cases, etc.  Priorities are worked before all other pending claims.

This also means that a Veteran who has filed multiple NODs over time, may only receive a decision concerning his oldest pending NOD, while the issues contained in his other “younger” NODs remain pending.

The file is reviewed and decisions are rendered.  If all of the issues within an NOD can be granted in full, a rating is prepared to grant the issues.  Otherwise, we must issue a Statement of the Case (SOC) to the Veteran, which provides the applicable VA regulations and explains the reasons for the decision(s).

Once an SOC is issued, the DRO process is complete.  If the appeal continues, it is now under the Traditional appeals process.  DRO authority does not extend beyond the issuance of the SOC.

In order for a Veteran to continue the appeal, the VA must receive a Substantive (Formal) appeal, which is a VA Form 9, Appeal to Board of Veterans’ Appeals, or an equivalent statement of intent to continue the appeal.  There is no legal requirement that a specific VA Form must be received in order to continue an appeal, but VA must receive some form of communication in writing from the Veteran or his Representative indicating an intent to continue the appeal.

A Veteran has EITHER the remainder of one year from the initial decision notification letter, OR 60 days from the date the SOC was mailed, to file his Substantive appeal.  Otherwise, his appeal rights for those issues expire, and the NOD is closed.

 

 

 

 

 

Edited March 12, 2018 by Buck52