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? 

[broncovet]

I had a similar thing happen, appealed and won.  In my case, the VA "forgot" about adjuticating my tdiu for more than 7 years, then finally awarded a single 100 percent.  The VARO decision said TDIU was "moot".  I appealed, stating that tdiu was not moot, in light of Bradley vs Peake, and that it could result in an earlier effective date.  

The Board agreed with me, and remanded for consideration of tdiu via 4.16 b, which is the extra schedular tdiu (when you dont meet the minimum percent requirements).  For 3 more years, the VARO failed to comply with the remand order, and only after I threatened a second Writ of mandamus did they comply.  

The consideration of tdiu via 4.16 b was denied on remand.  I appealed again, this time, by attorney, and she hired a consultant to opine (IMO...voc rehab consultant), and I won that time.  Now, Im appealing the effective date.  In all, its taken 16 years.  9 for VARO to adjuticate (they declared it moot), 3 to remand, and now, 4 more years so far into the appeal of the effective date.  

[Buck52]

 Not sure what you used as evidence in your Original CUE Claim?

Failure to apply IU based on a 60% S.C. Condition that render you unemployable? (assuming you did claim this?)

Your reasons and bases of the CUE Denial will help? so we know why they denied your CUE  other than what you had mention.

So You should do research on this below  copy and past the provisions that apply to you and copy this link add it as evidence as a reminder how they screwed up in the CUE Denial!

   and re-apply the CUE or just file another CUE and just add new and material evidence such as this. New IMO/IME from a specialist. to opine on your S.C. 60% Condition, however I am not sure you will need to do this  being your appealing a CUE?

obviously they never  reviewed your C-FILE and never applied the 60% disability that render you unemployable & or medical records from your Dr that mention you were not able to work due to your 60% S.C. Conditions /Disability's (obviously they was  never read or applied in your claim) (also this 60% rating should have been appealed)

Anyway

this is ERROR on the VA Part

See Shockley v. West, 11 Vet. App. 208, 214 (1998); see also Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) (holding that although the appellant had not filed the specific form asking for individual unemployability, an informal claim was raised because he had continually stated he was unable to work due to his service-connected disability's

 

1.3. Inferred Claims

An "inferred" claim is one not specifically identified by a claimant, but supported by the evidence.  Once a claim is received, VA has a duty to review the claim and the C-file supporting documents, and oral testimony in a liberal manner to identify and adjudicate all reasonably raised claims, even if a specific claim is not raised by the appellant.  See Shockley v. West, 11 Vet. App. 208, 214 (1998); see also Collier v. Derwinski, 2 Vet. App. 247, 251 (1992) (holding that although the appellant had not filed the specific form asking for individual unemployability, an informal claim was raised because he had continually stated he was unable to work due to his service-connected mental disorder).  This is discussed elsewhere in this Knowledge Book.  Claimants should not rely on this duty and should always identify all the claims he or she believes are supported by the evidence.

Please Note:

I am not sure how you would do this to reopen this claim so that you will get to keep your EED....REOPEN OR RECONSIDER your CUE?

or A claim for revision of a previous final decision based on CUE (Clear and Unmistakable Error)

If your still in your Appeal limits that will help you.

I am thinking b/c this was ERROR on the VA Part and you prove CUE was committed I think there obligated to go back to the original CUE date and possibly all the way back to when  you first filed.

I'd need to research this 

other member please chime in.

Edited September 13, 2018 by Buck52

[Buck52]

Waffels

Also something to think about  did you read about this?

https://www.militarytimes.com/news/2018/08/24/court-ruling-allows-class-action-lawsuits-against-va/

Not sure yet on if a botched up C&P will qualify but Jerrel Cook from the hadit radio shows is trying to find out more information on this.

Edited September 13, 2018 by Buck52

[Buck52]

This BVA Case was found by Ms berta , its a good read and may apply to you.

Please Read.

Source: BVA  Citation Nr: 0620794 Decision Date: 07/18/06 Archive Date: 07/26/06 DOCKET NO. 04-35 551 ) 

   http://www.va.gov/vetapp06/files4/0620794.txt

Edited September 13, 2018 by Buck52