Reizenstein v. Shinseki

I respectfully dissent because the Court of Appeals for Veterans Claims has imper-missibly failed to apply 38 C.F.R. § 3.343(a) to Reizenstein’s retroactive staged ratings. The text of the regulation is clear: “[t]otal disability ratings ... will not be reduced, in the absence of clear error, without examination showing mate*1339rial improvement in physical or mental condition.” This rule is neither permissive, optional, or discretionary, nor does it state any exception for staged ratings.

After requesting supplemental briefing from the Department of Veterans Affairs, the Veterans Court accepted…