Unemployability Moot

[Waffles]

Can the VA declare unemployability moot, not mention it all and then come back on appeal and state that if they would have declared unemployability they would of used specific SC disabilities? 

[Waffles]

The VA said, "Although the examiner noted that it would be difficult for the Veteran to maintain employment based on her voiding dysfunction (rated 60%), Social Security granted benefits based primarily on the spine disabilities and secondarily on the voiding/urinary dysfunction; and additional medical evidence shows functional limitations due to other service connected conditions.  Also the rating decision, after weighing all the evidence noted that if individual unemployability was granted, it would of be based on multiple disabilities and not on the voiding dysfunction only, and therefore Bradly v. Peake does not apply.  Although the rater, after weighing all the evidence could of have decided either way, his/her decision does not rise to the level of a clear and unmistakable error.

As noted in the special review decision, noted that even if individual unemployability was granted, it would be based on multiple disabilities and not on the voiding dysfunction alone.  If that were the case, Bradly v. Peake does  not apply.  Since you do not have a single disability rated at 100 percent with additional separate and distinct disabilities totaling and additional rated at 60 percent, entitlement to special monthly compensation based on housebound is not established.

okay: so my first ratings were this in 2012; 50% sleep apnea, overactive bladder 40%, 30% hysterectomy, 20% cervical spine DDD, lumbar spine 20%, R hip bursitis 10%, Left wrist strain 10%, R wrist strain 10%, L knee patellofemoral 10%, R knee patellofemoral 10%, Adjust disorder anxiety and depression 10% = 92% 

then I requested unemployability; they declared unemployability moot and granted me 100% P/T and my disabilities changed to this:

50% depression, 50% sleep apnea, 40% spine, 10% L hip bursitis, 20% R shoulder impingement, 10% L knee, 10% R knee, 10% R lower extremity radiculo, 10% R knee pat, 30% cervical spine, 30% hysterectomy, 10% L knee pat, 10% R wrist, 10% R hip bursitis, 10% painful scars, 10% L wrist strain and 60% overactive bladder and voiding dysfucntion  

 

   

[Buck52]

Your 90% combined rating is where that got ya.....you need a 100% rating or IU before the SMC is considered.

However if they had rated you the IU then that is consider a 100% rating although your combined ratings is 90%...Getting the IU would change things , if you were awarded IU on disability that kept you from working  and then you have these other combined disability's  that would meet the SMC Criteria  

Unfortunately you don't have that   (the IU or a 100% scheduler rating) you show a 90% combined rating. but your 90% combined ratings if you can't work b/c of these  you need to file for the IU.

you would need an additional 50% rating with your 90% to reach the 100% scheduler.

You need to ask your VSO  if you filed the IU Fast letter & if they award the IU  then Bradely vs Peak would apply to SMC S.

 

SMC is inferred because the veteran is at 100% or IU and has additional separate & distinct  S.C. disability's at 60% or higher  

The 60% can be of combined ratings.

Now with your 100%P&T new rating...you still need the Additional 60% separate & distinct disability rated at 60%    using your combined ratings to get you to the 100% P&T  is ok but now you need the 60% separate rating

MAYBE  this is why they said 60% ''voiding dysfucntion.?

To the OP

I realize I could be wrong here and other members can chime in   (this is just my opinion.)

Edited September 12, 2018 by Buck52

[Waffles]

Yes, I understand all that and thank you for your reply. My point is/was that they could of granted me IU based on my first set of ratings.... they did not. I applied for IU and they came back with IU was moot and never considered it because they granted me 100% P/T and SMC S was never discussed. Even though I have a 60% rating that could deem unemployable by its self they refuse to grant me SMC S because they are saying they would of granted me IU based on all of my ratings and not just 60% rating by itself. Frustrating.

[vetquest]

2 hours ago, Waffles said:

Okay so I guess I'm a little slow. How do I scan or inset something from my desk top? I have been reading this site for years but I have never really utilized the site. So I'm a newbe. I scanned everything onto my computer but how do I san it onto this site? Please assist.

Go to the line where you would normally post and see the bottom where it says "drag files here to attach, or choose files..."  Select choose files and a browser will come up, you can select your files that were scanned to your computer.  You can do this multiple times.

[Waffles]

can you elaborate on your statement about "you need to ask your VSO if your filed the IU fast letter & if they will award IU then bradly v. peake would apply"?

[broncovet]

File an appeal.  Period.  The VA needs to consider you for (2) types of housebound:  Statuatory and housebound in fact.  

Based on what you posted they considered ONLY statuatory housebound (100 plus 60).  There is another way to get housebound, it is because you are substantially confined to your premises FOR WORK.  READ this: 

https://asknod.org/2014/08/25/cavc-howell-v-nicholson-what-smc-s-really-says/