Hamer: TDIU, Staging, and Stabilization[1]
The decision in Steven W. Hamer v. Eric K. Shinkseki, Opinion Number 07-3181, decided July 27, 2010, involved an appeal from a decision that found TDIU but staged the award.
The Veteran had been granted TDIU from 1978 until TDIU was terminated 1985 because of employment. In fact, the veteran was employed as a National Service Officer for a veteran’s service organization from 1989 until 2000. In 2000, Hamer filed a motion to revise the 1985 termination based on clear and unmistakable error and filed for a TDIU. The VA granted TDIU from April 2000 until the present while finding clear and unmistakable error in the prior decision and awarding TDIU from January 1990 through November 1990 while denying TDIU for the time from December 1990 through April 2000. The Board affirmed the decision and the veteran appealed arguing a partial restatement of a stabilized rating cannot be discontinued during a portion of the retroactive award period.
The Court affirmed the Board and found that because the VA decision finding clear and unmistakable error in the termination was accepted as if it had been made at the time of the original decision, than staging was proper and stabilization issues did not come into play.
The Court stated staging is appropriate for initial decisions and then found the 2007 Board decision was appealed from was essentially an initial decision because it substituted for the decision which was found to be clearly and unmistakably erroneous.
Regarding stabilization and another argument concerning protective rights for TDIU found at Section 5112 and 3.105, the Court found the veteran “entered into this appeal without an award or total disability based on individual employability. He was assigned staged disability ratings simultaneously and will leave the appeals process with more disability compensation than when he entered. In other words, at the time his benefits were restored in 2007, he had been living without VA benefits for over 15 years, and thus he did not need to ‘adjust to the diminished expectation,’ i.e., prior to 2007, he was not reliant upon benefits to which he was not in receipt of. Accordingly, the protective rights that prohibit VA from reducing a total disability are not applicable here.”
This case is important because it allows for staging in cases that are being revised or rated because of CUE and found stabilization did not apply to retroactively assigned TDIU cases.
Decision by Judges Hagel, Moorman and Lance.
[1] The Court has found that because of stabilization a total disability rating cannot be reduced on the basis of a single examination unless all of the evidence of record establishes that a claimant’s condition has undergone sustained material improvement. A marked difference in employment may qualify as improvement.
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