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? 

[Buck52]

OK

if this was a recent award for the 100% P&T under a year  then do as broncovet mention and Appeal this decision...if you use a VSO you might want to ask him/her for advise....

you have a year from this 100% P&T Awarded decision date to Appeal...but check with your VSO if you use one.

VA is fast about this type of a decision to grant the 100% w/P&T because after veterans are rated the 100% it makes it hard to reach the SMC Criteria.

.unless his/her disability's are very severe LOSS OF USE , NO ARMS, NO LEGS CAN'T FEED OR DRESS YOURSELF  ,BEDRIDDEN ect,,,ect,,,and may need A/A with the SMC or Higher PIER to the SMC's

[Waffles]

this was in 2014, my appeal just hit the BVA this week. I'm not sure what I'm going to do as of yet. I'm thinking..... I do know this is a bunch of bull... I do know that.  Thank you for letting me vent and bounce things off of you. 

[Buck52]

Hopefully some of the elder members can chime in..you may have a point as to why they never inferred the IU at the 60%  that maybe reason to CUE Them  

but maybe some of the elder members like broncovet , Ms berta or Alex or Gastone or Vync will chime in here.

I am not 100%sure  so I don't want to give you any false information.

[Buck52]

waffels 

if this Appeal is for this question you ask ?

You need to wait for the decision?

[acesup]

4 hours ago, Buck52 said:

"you may have a point as to why they never inferred the IU at the 60%  that maybe reason to CUE Them"

I'm not nearly as experienced as many of the members here, but I think Buck52 hit the nail on the head.  Anytime your ratings hit 70% or more with at least one rating of 40%, and could POSSIBLY qualify you for TDIU, it is my understanding that an "inferred" claim for TDIU exists whether you mention it or not.  And with your particular disabilities, I'm not sure why the VARO wouldn't have granted TDIU, but then I think the process for granting or denying TDIU is arbitrary and sometimes grossly unfair.  IMHO, CAVC cases like the aforementioned Bradley v. Peake and Buie v. Shinseki should be applied, and even the simple "benefit of doubt to the veteran" should have been used.

Hopefully, if I'm mis-stating anything here, one of the resident whizzes will correct me for your benefit and my education.  I'm considering trying to be an occasional part-time (unpaid) VSO, because I'm just reaching the happy ending of my 9-year war to get TDIU and service connect several issues.  (Won all but two minor issues at BVA, they're remanded).

This is what drives me nuts.  They certainly COULD have granted in a manner that gave you TDIU and SMC(s), but simply didn't.  If they decided the SSDI was primarily for your 20% C-spine and 20% L-spine, they actually COULD(should, IMHO) have considered granting "extra-schedular" TDIU for the spine conditions.  That is exactly WHY the extra-schedular TDIU option was created.  Let's be real, the spine AND the other condition are all Service Connected.  I promise you there have been TDIU and SMC(s) granted that way, although realistically, probably only at the BVA or CAVC levels.  I personally know of a TDIU granted by BVA for a 20% L-spine disability to a veteran with other SC issues, so that SMC(s) would also be granted, citing those cases above.  (Even though the spine was recently reduced to 20%, it was and still is the primary reason for SSDI and even the C&P doctor that caused the rating reduction stated that the veteran would not be capable of doing any real job due to the spine condition and medications, etc.)  And in that case, yes, the disabilities COULD have been totalled up to 97+  for a 100% combined rating without TDIU, so that SMC would have become moot.  

Now, here's where you might have a problem;  those doctor's statements seemed a bit weak.  Your case could be stronger if you can get the doctor to firmly opine that your SC spine disabilities absolutely preclude you from SGE (Significant Gainful Employment) due to pain, stiffness, clumsiness, inability to stay in any one position for any length of time, whether sitting, standing, etc., and so on.  And/or get a FIRM, un-wimpy opinion that your 60% condition prevents you from being employable because of X and Y and Z.  And with either of those conditions, you probably cannot be a dependable, punctual, satisfactorily-performing employee because each of these conditions interfere with normal sleep and rest/relaxation and your ADLs (activities of daily living), affect your moods, etc.

IF the BVA hasn't yet decided your case, it is my understanding (or lack of) that you CAN call them and tell them you have more evidence to submit.  It would likely delay the decision, but you'd have more ammunition.  If they have made a decision to deny, I'd hope you'll talk to your VSO and/or a NOVA attorney.  I'm not certain if or how you can get BVA to look at new evidence after a decision, I'm sure someone here can chime in on that.  I hope you stick to your guns, it sounds to me like you should prevail.  Best of luck yo you!

Edited September 13, 2018 by acesup

[Gastone]

The simple answer regarding IU and CSC (1) issue and the SMC Statutory Housebound Award and either IU or 100% CSC being considered  "Moot" by the Rater Decision maker or subsequently by the VA RO "Decision Quality Review," SR Rater or RO DRO.

The M21 requires Raters while determining which IU or CSC 100% to determine which CSC 100% rating or the IU Rating gives the Vet the LARGEST Comp Amount. How many Vet's have a Single SC Rated as SC 100%, then have one or more SC's that form their own CSC of 60% that enable the SMC S Housebound Award?

I believe,  with no empirical Data in front of me, there are vastly more IU Awarded Vet's that have a single MH/PTSD 50/70% SC that is the only SC that actually causes them to be IU, then 100% Single SC 100% issue and the one or more independent SC's that hit the SMC S 60% cut.  That one IU Causing SC 50 or 70% is determined as the 38 CFR mandatory (1) issue rated as 100% for the SMC S. That would give the Vet the Largest Comp, IU plus SMC S, reversing the "MOOT" of the CSC multi-SC's getting to CSC 95% rounded to CSC 100%.