tdiu Hart V, Mansfield

[Berta]

This case is mentioned in the new VBM-

Per NVLSP this case "introduced the idea 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." VBM 2009 page 364

What gets me is that I wonder how often the VA fails to consider staged ratings.

Say you were 30 SC and then they award 70% SC-what happened to the potential for 50 % for a period of time-

say a vet with 30 or 40 SC gets a TDIU award based on the date they got the TDIU form.

what happened to the ratings that got the vet up to TDIU?

Say a vet who deserved a staged rating went from 30% to 70 but somewhere along the way their medical evidence warranted 50% during their claims process.

The difference between 30% and 50% in retro could be quite significant.

Once in a while a staged rating claim will show up at the BVA.

But a vet could be even 10% when they start their claim and end up at 50% or even TDIU by time they award the claim- if the 10% disability increased that much over time.

But they didnt get a % jump like that overnight.

Any thoughts?

[broncovet]

Berta

This seems to be another instance similar to 4.16a which is the one about extraschedular consideration for TDIU when the Veteran fails to meet the minimum percentages for TDIU: Basically, it does not happen.

While I agree with you that a persons condition is unlikely to deteriote from 10% to 100% overnight..without some steps in between..I also agree that, from a practical point of view the Veteran either got 100% and is happy about it, or is appealing a low ball rating/denial.

If the Veteran did eventually wind up with 100%, the VA has a way of putting fear in you that if you appeal, such as for staged ratings or an EED, that you could loose what you have. So, the Vet either does not know about staged ratings, or, knows about them and elects not to appeal. For the most part, the "staged ratings" would likely appear at the appealate levels only and probably would not occur at the RO level. For one thing, VA regs are complicated enough, and the rating specialists are NOT lawyers

(with only a very few exceptions), AND staging a rating would complicate something and take the rating specialist longer..so I think that is why it basically is not done at the RO level.

Even tho staged ratings may apply in my particular case, I am approaching it from another level. I am asking for an EED for my 100%, rather than asking in my appeal for staged ratings. My logic is this: Altho a staged rating would be preferrable to what I have now, it would be still better for me to get an EED 100% rating. I am not even going to ask for "half a loaf", but rather am asking for the full loaf of bread, and am going to let them suggest we cut the loaf in half. In other words, I am asking for a 2002 effective date for 100%..if they offer 30% from 2002-2004, and 50% from 2004-2007, and 100% from 2007 on, I would probably accept it and not appeal. I would consider asking for staged ratings in my appeal, but I feel strongly that I am entltled to an EED, and, frankly will argue for my EED and I would rather not discuss staged ratings. I guess I am afraid of "opening up a can of worms". A philosopher once said when there are two alternatives, they suggest picking the simplier of the 2 choices. For me, by far the simplier choice is to appeal for an EED and keep my mouth shut about staged ratings.

[carlie]

Berta,

I'm glad you brought this topic up.

I feel that many claims for increase have medical evidence in them

(especially when 5-10 years have passed by since the prior decision)

that would warrant staged ratings.

jmho,

carlie

[hurryupnwait]

BroncoVet wrote: "Even tho staged ratings may apply in my particular case, I am approaching it from another level. I am asking for an EED for my 100%, rather than asking in my appeal for staged ratings. My logic is this: Altho a staged rating would be preferrable to what I have now, it would be still better for me to get an EED 100% rating. I am not even going to ask for "half a loaf", but rather am asking for the full loaf of bread, and am going to let them suggest we cut the loaf in half. In other words, I am asking for a 2002 effective date for 100%..if they offer 30% from 2002-2004, and 50% from 2004-2007, and 100% from 2007 on, I would probably accept it and not appeal. I would consider asking for staged ratings in my appeal, but I feel strongly that I am entltled to an EED, and, frankly will argue for my EED and I would rather not discuss staged ratings. I guess I am afraid of "opening up a can of worms". A philosopher once said when there are two alternatives, they suggest picking the simplier of the 2 choices. For me, by far the simplier choice is to appeal for an EED and keep my mouth shut about staged ratings."

This is the same approach my lawyer must be taking with my EED, I didn't understand this direction he was taking, but I do now. Thanks for the enlightenment BroncoVet.

Paul

Edited September 19, 2009 by hurryupnwait

[deltaj]

BroncoVet wrote: "Even tho staged ratings may apply in my particular case, I am approaching it from another level. I am asking for an EED for my 100%, rather than asking in my appeal for staged ratings. My logic is this: Altho a staged rating would be preferrable to what I have now, it would be still better for me to get an EED 100% rating. I am not even going to ask for "half a loaf", but rather am asking for the full loaf of bread, and am going to let them suggest we cut the loaf in half. In other words, I am asking for a 2002 effective date for 100%..if they offer 30% from 2002-2004, and 50% from 2004-2007, and 100% from 2007 on, I would probably accept it and not appeal. I would consider asking for staged ratings in my appeal, but I feel strongly that I am entltled to an EED, and, frankly will argue for my EED and I would rather not discuss staged ratings. I guess I am afraid of "opening up a can of worms". A philosopher once said when there are two alternatives, they suggest picking the simplier of the 2 choices. For me, by far the simplier choice is to appeal for an EED and keep my mouth shut about staged ratings."

This is the same approach my lawyer must be taking with my EED, I didn't understand this direction he was taking, but I do now. Thanks for the enlightenment BroncoVet.

Paul

If you have copies of your claims folder with the rating decisions, medical examinations, and notification letters you should review 38 CFR 3.400 (q) to see if V.A. received new and material evidence during an earlier appeal period when you had an appeal underway so that you can consider filing a claim for clear and unmistakable error under 38 CFR 3.105 on the issue of whether you had entitlement to an earlier effective date on your 100% rating.

[hurryupnwait]

If you have copies of your claims folder with the rating decisions, medical examinations, and notification letters you should review 38 CFR 3.400 (q) to see if V.A. received new and material evidence during an earlier appeal period when you had an appeal underway so that you can consider filing a claim for clear and unmistakable error under 38 CFR 3.105 on the issue of whether you had entitlement to an earlier effective date on your 100% rating.

I have a copy of my c file. It was noted in my BVA remand letter that the VARO never sent me a decision letter from a claim I filed in 1973. My attorney is trying to get them to decide that claim, plus add several other issues that are secondary to back and request IU. That 's a summary of my claim.

[broncovet]

Delta

Yes, thanks for the good advice, and I will look up those 38 CFR's and study them. I have a meeting tommorrow with my VSO. In a nutshell, I am hoping he saved copies of my original application in 2002..because the copies I have demonstrate entitlement to an EED, that is, in 2002 the VA considered only my hearing loss and never considered depression until 3 years later.