This is an interesting decision concerning TDIU that just came out on the 27th of July. It concerns a certain Mr. Hamer who had disabilities that rendered him virtually totally disabled in 1978, just 4 short years after his USAF service. He remained on TDIU until 1985, when either he admitted to, or VA discovered he’d been working. Consequently his TDIU was unprotected and terminated. He didn’t appeal, which, in essence, was an admission that he accepted the VA’s decision.
He returned in 2000 and requested TDIU again – effective on the date of his termination in 1985 based on Clear and Unmistakable Error (CUE) in that his rating was protected after five or more years (from 1978 to 1985). Obviously Mr. Hamer had been dabbling in Veteran’s law in his spare time or one of his buddies down at the VFW bar was. The Gentle Reader can probably see where this is heading by now. As Mr. Hamer’s vocabulary is Latin challenged, he is (unbeknownst to him) heading for what he probably feels is a horrible miscarriage of Justice. The good news is he can appeal this decision to the Federal Circuit court. Pretend you’re a sheep and repeat after me—BA-A-A-AD idea.
If the RO denial in 2000 was merely interesting, 2007 is where it really became humorous. VA knew it screwed up back in 1985. They sent out the private eyes and reviewed his Social Security earnings, medical records etc. Mr. Hamer was under the microscope now. They discovered he worked from 1990 to 2000 without any health issues. So, in the spirit of delay and deny, the RO 86ed the claim and booted it up to the BVA. The VLJ tossed out the denial and agreed with him that, lo and behold, there was CUE in the November 1985 decision and promptly granted him TDIU from November 1985 up to when he started the new job in 1990. However, they then denied him any TDIU during the decade he worked, from 1990 to 2000. Then they granted him TDIU again from 2000 to the present (2010). This was the cheapest way out for them and they artfully dodged the bullet. In essence, they threw out the old decision that he didn’t appeal in 1985, then decided to turn it into a staged rating (aka a Fenderson rating) with different ratings for different periods of time from 1985 to 2010. They could legally do this because, by granting the CUE, they discarded the original decision and substituted a brand new decision. Staged ratings, as a matter of law, are only permitted on original claims for benefits. The VA lawyers must have all been patting each other on the back and saying it was the most brilliant stroke of jurisprudence since King Solomon’s baby dilemma. I’m sure several, including the VLJ, got a nice bonus that year.
But no, this didn’t sit well with Mr. Hamer. With some poor legal assistance (from the bar?), he found himself standing in front of the CAVC with a bogus argument for why he was screwed out of all those benefits during that decade in the 90s. It’s an interesting argument, but you can see the VA Secretary’s fingerprints all over this one. He tried to figure out how to make the mistake as inexpensive as possible. This is what caused them to investigate him so thoroughly, and investigate him they did. He quite obviously was defending himself pro se right up to the CAVC and then handed the reins over to some law dog. The VASEC made the VA judgment proof on this one when he instructed the BVA to grant CUE. They rightly concluded this case was headed up to the Court.
The CAVC is the Veteran’s best friend when it comes to getting a fair shake. They are wholly independent of the VA and quite frequently get into knock down, drag out fights with the VASEC. Nevertheless, if your legal theory is as solid as a screen door in a submarine, be prepared for a disappointing ending. The VASEC saw the writing on the wall and put the lipstick on the pig. All the CAVC could do was to agree that he had done no wrong, which they did.
Herewith, meet Mr. Steven W. Hamer and his erstwhile law dog and loyal sidekick, Kenneth M. Carpenter, Esq. In addition, please allow me to also introduce esteemed Judges Hagel, Moorman and Lance of the Court of Appeals for Veterans Claims (CAVC).
This is part 1 of a three (at the moment) part judicial adventure. Here’s chapter 2 at the Fed. Circus.