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Hart V Mansfiled


Berta
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Hart V Mansfield ( one of the CAVC decisions that transpired during the Deputy Secs tenure- is often-in my opinion- something overlooked by the rep as well as the claimant and certainly by the VARO-

this came up when I read and replied to Hurryupandwait's post today.

Hart provides for “staged ratings”

In other words-say your disability was 10% and then the VA awards 50%-and they use the date of claim as the EED-but did they account for a staged progression?

I need to really think about this statement from the BVA in this link-

Legal beagles out there will see what I mean-

The

Court found "no basis for drawing a distinction between

initial ratings and increased-rating claims for applying

staged ratings."

Interesting- I always wondered how the heck my husband- at 30%- jumped to 100% SC without being 50 to 70 % SC.Obviously his PTSD disability increased between the time of the 30 % award to his death (the 100 % SC award for PTSD was posthumous)

I am sure this is the case for many of you- how can your disability increase without the VA accounting for-in some cases not all- a staged rating-???

From: http://www.va.gov/vetapp08/files1/0800739.txt

“In May 1995, service connection for residuals of a low back

strain was granted and rated as 10 percent disabling,

effective from August 1, 1994. In relevant part, the RO

received the veteran's informal claim seeking an increased

rating for his low back disability in February 2006. By

rating decision in June 2006, the RO confirmed and continued

the 10 percent evaluation. However, as noted above, in July

2007, the RO increased the 10 percent rating to 20 percent

effective from May 30, 2007. Although this appeal does not

stem from an initial rating determination, the Board notes

that in Hart v. Mansfield, No. 05-2424 (U.S. Vet. App. Nov.

19, 2007), the United States Court of Appeals for Veterans

Claims (Court) held that staged ratings are appropriate for

an increased rating claim when the factual findings show

distinct time periods where the service-connected disability

exhibits symptoms that would warrant different ratings. The

Court found "no basis for drawing a distinction between

initial ratings and increased-rating claims for applying

staged ratings." Given the procedural development in this

case, consideration of this matter is warranted.”

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Hello All Hope All Is Well. Interesting Post Indeed I too wondered how the application of this without explanation from VARO and VAMC to warrant a higher rating for injuries or conditions when occurred. Especially when the physicians document all signs and symptoms also and yet this too is not applied? Very Good Post Berta and Thank You

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  • HadIt.com Elder

Berta, I'm confused. What did that mean? I must be having a moment. I can't figure out what that means. (Usually, I'm pretty smart about this stuff, I'm having a blond moment) Would you mind explaining that to me, in plain terms? Thank you so much!

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NVLSP (VBVM) 2007 edition pages 383-384 gives this example:

Vet files claim in 1998 and submits evidence that his 10% back should be rated at 20%.

RO denies and he goes to the BVA and the BVA takes note of medical recoreds that show that his back disability got worse in 1999 and indicates a 60% SC rating is now warranted. The BVA must decide the actual EED for the 60% which would probably be the date of the med recs of the condition worsening.

NVLSP recommends that in any claim that has pending for quite some time, advocates or veteran's should seek the date of the highest potential rating level supported by medical evidence.

Also NVLSP makes the point that the EED can always be challenged with more medical evidence.

A NOD or even a reconsideration request can be filed on an improper EED.

This is why I tell many vets to apply for TDIU ASAP -as soonas they feel their medical evidence shows their condition has caused them to become unemployable-

it is easier in many respects and more favorable to a veteran to have VA determine TDIU early on- with medical evidence and it cuts through alot of this staged rating stuff.

A TDIU form filing date becomes the usual EED for TDIU at the 100% rate of comp and even in some cases like my husbands case- a more favorable one year prior to the TDIU form- EED can be awarded.

A "staged rating" of increase could potentially overlook the TDIU factor.

VA only considers TDIU when they see 70% SC or more- unless the vet themselves has filed the TDIU form-regardless of their % of SC comp.

I think the best thing I ever did for veterans is years ago when I helped a NSC vet fill out a TDIU form.

I told him this would probably take well over a year or more at our RO but in 4-5 months he got TDIU.

He had extensive private psychiatric records and a proven PTSD stressor. The VA had no VA med recs to pour through and a definitive diagnosis.

I read the 21-8940 form carefully and found no regulation or statement at all on it that precluded a vet from filing for TDIU regardless of whether they had any SC or not.or regardless of the %.

The regs specific say that VA will award TDIU to any vet whose has a service connected disability that prevents them for working-proven by medical evidence.

I have been whipping out lots of TDIU forms ever since-

there are reps who STILL are telling vets they have to be 70% before VA will consider them for TDIU.

This isnt true-the VA must consider TDIU whenever a vet sends them the 21-8940.

Edited by Berta
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I wonder if Hart has set up potential criteria for CUEs?

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Hell All Hope All Is Well. Excellent Point Berta this could be borderline Cue Status? for not applying all medical history and examinations regardless IMO, VAMC and so forth reason IMO will be different than VA medical physician,or C+P exam.MMMM How Much is The NVLSP ( VBVN)? Curious indeed.Once again Great Post Berta I Interpret this to be applied as a CUE or can be used as evidence toward a CUE.

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Hey, Berta, if I file TDIU now, in the middle of appeals, will it affect my increase appeal? We WERE told he had to be rated at 70% to get TDIU. So, my question is, do I wait for the appeal for increase or do I file for TDIU now?

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