Veteranclaims’s Blog

June 12, 2013

Pirkl v. Shinseki, No. 2012-7067(Decided: June 12, 2013); CUE; 38 U.S.C. § 5109A(b); 38 C.F.R. § 3.170 (1949)

Excerpt from decision below:

Because the Board did not consider the effect of certain regulations governing a reduction of a total disability rating, we vacate and remand.
===========================

“We acknowledge the importance of the rule of finality. Yet we have made clear that a CUE challenge is one of two statutory exceptions to the finality rule. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (“Congress knew how to create exceptions to the finality of VA decisions, and it explicitly did so in two circumstances. It enacted the statutes codifying CUE challenges (sections
5109A and 7111) and the statute allowing claims based on new and material evidence (section 5108).”). Under 38 U.S.C. § 5109A(b), a finding of CUE may, under some circumstances, require a later decision to be revisited.
See 38 U.S.C. § 5109A(b) (“[A] rating or other adjudicative decision that constitutes a reversal or revision of a prior decision on the grounds of CUE has the same effect as if the decision had been made on the date of the prior decision.”). As the Government admits, “[i]n some circumstances, a finding of CUE in a prior decision may necessarily establish that subsequent decisions on the
12 PIRKL v. DVA
same matter are clearly and unmistakably erroneous.” Appellee Br. 20. That may or may not be the case here.
To be clear, we do not find that the finding of CUE in the 1953 decision necessarily rendered the later rating decisions clearly and unmistakably erroneous. We hold that the regional office, in implementing the Board’s
finding of CUE, was required to consider the effects of that CUE finding on the legal and factual basis of the subsequent rating decisions.

===========================

United States Court of Appeals for the Federal Circuit
______________________
REGINA M. PIRKL,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7067
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 09-0175, Judge Lawrence B. Hagel.
______________________
Decided: June 12, 2013
______________________
KENNETH M. CARPENTER, Carpenter, Chartered, of
Topeka Kansas, argued for claimant-appellant.
JOHN J. TODOR, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for respondentappellee.
With him on the brief were STUART F. DELERY,
Acting Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and MARTIN F. HOCKEY, JR., Assistant Director.
2 PIRKL v. DVA

Of counsel on the brief was DAVID J. BARRANS, Deputy
Assistant General Counsel, United States Department of
Veterans Affairs, of Washington, DC.
______________________
Before DYK, MAYER, and REYNA, Circuit Judges.
REYNA, Circuit Judge.

Regina M. Pirkl appeals from a final decision of the
United States Court of Appeals for Veterans Claims (“the
Veterans Court”) affirming a decision of the Board of
Veterans’ Appeals (“the Board”) that Mrs. Pirkl’s late
husband was not entitled to a 100% disability rating for
the entire period of time between September 30, 1952,
and August 30, 1988. Because the Board did not consider
the effect of certain regulations governing a reduction of a
total disability rating, we vacate and remand.

BACKGROUND
Mr. Pirkl served on active duty in the U.S. Navy from
December 1947 to November 1949. Effective November
1949, the Department of Veterans Affairs (“VA”) awarded
Mr. Pirkl disability benefits for paranoid schizophrenic
reaction, evaluated as 10% disabling. A VA regional office
increased his disability rating to 100%, effective September
30, 1952.
On September 3, 1953, the regional office issued a rating
decision reducing Mr. Pirkl’s disability rating to 70%
on the basis of the findings of a newly acquired VA medical
examination. The rating decision indicated that this
reduction would become effective on November 3, 1953.
Mr. Pirkl did not appeal this decision and it became final.
In a December 10, 1956, rating decision, the regional
office again reduced Mr. Pirkl’s disability rating, this time
to 50%, effective February 9, 1957. The regional office
based this reduction on the findings of a newly acquired
VA medical examination and evidence pertaining to
PIRKL v. DVA 3
changes in Mr. Pirkl’s employment status. Mr. Pirkl did
not appeal this decision and it became final.
In an April 13, 1966, rating decision, the regional office
further reduced Mr. Pirkl’s disability rating to 30%,
effective July 1, 1966, on the basis of a newly acquired VA
medical examination and additional evidence pertaining
to Mr. Pirkl’s employment status. Mr. Pirkl appealed to
the Board. In a January 12, 1967, decision, the Board
concluded that Mr. Pirkl was not entitled to a disability
rating in excess of 30%. Judicial review was unavailable
at that time and this Board decision therefore was final.
See Veterans’ Judicial Review Act, Pub. L. No. 100-687, §
402, 102 Stat. 4105, 4122 (1988).
In August 1991, Mr. Pirkl filed a claim to reopen a
previously denied claim for an increased disability rating
for his service-connected schizophrenic reaction that, after
extensive development and litigation, resulted in an
award of a 100% disability rating, effective November 30,
1988.
In December 2001, Mr. Pirkl filed with the VA a motion
to revise the three final regional office rating decisions
based on clear and unmistakable error (“CUE”):1 the
September 3, 1953, rating decision that reduced Mr.
Pirkl’s disability rating from 100% to 70%, effective
November 3, 1953; the December 10, 1956, rating decision
that further reduced his disability rating to 50%, effective
February 9, 1957; and the April 13, 1966, rating decision
1 Clear and unmistakable error generally occurs
when the correct facts are not before the Board or when
the Board incorrectly applies the relevant statutory or
regulatory provisions. Where the result would have been
manifestly different but-for such an error in fact or law, a
finding of clear and unmistakable error is warranted. See
38 CFR § 20.1403.
4 PIRKL v. DVA
which again reduced his disability rating to 30%, effective
July 1, 1966.
The request for revision of the April 13, 1966, rating
decision was addressed in the first instance by the Board
in an August 2002 decision. See 38 U.S.C. § 7111(e)–(f)
(2011) (providing that a request for revision of a final
Board decision on the basis of CUE error “shall be submitted
directly to the Board and shall be decided by the
Board on the merits, without referral to any adjudicative
or hearing official acting on behalf of the Secretary”). As
a result, the challenge to the April, 13, 1966, rating
decision was treated as a request for revision or reversal
of the January 12, 1967, Board decision. The Board
concluded that its 1967 decision did not contain CUE and
denied Mr. Pirkl’s motion. Mr. Pirkl did not appeal this
decision and it became final.
Subsequently, in February 2005, the regional office issued
a rating decision concluding that neither the September
3, 1953, regional office decision nor the December
10, 1956, regional office decision contained CUE. In
October 2005, Mr. Pirkl filed through counsel a Notice of
Disagreement with this rating decision, but only referenced
his disagreement with that portion of the February
2005 rating decision that determined that the September
3, 1953, rating decision did not contain CUE. In a March
2006 Statement of the Case, the regional office again
determined that the September 3, 1953, rating decision
did not contain CUE. Mr. Pirkl appealed to the Board,
once again asserting that the September 3, 1953, regional
office decision contained CUE, but not mentioning the
December 10, 1956, rating decision.
In August 2006, the Board issued a decision concluding
that the September 3, 1953, regional office decision,
which had reduced Mr. Pirkl’s disability rating from 100%
to 70%, contained CUE. Later that month, the regional
PIRKL v. DVA 5
office issued a rating decision intended to implement this
Board decision. In relevant part, that decision stated:
[The Board] decision dated August 14, 2006, found
that [the] rating decision dated September 3,
1953, had improperly reduced your evaluation
from 100[%] to 70[%]. This rating decision puts
the [Board] decision into effect. It is noted that
the [Board] decision only address[ed] the issue of
the evaluation assigned by the September 3, 1953,
rating decision, and does not [a]ffect any of the
rating decision[s] made subsequent to that date.
J.A. 47 (Rating Decision Aug. 24, 2006). Accordingly, the
regional office awarded a 100% disability rating from
September 30, 1952, to February 9, 1957, the date on
which the December 10, 1956, regional office decision
made effective Mr. Pirkl’s reduced 50% disability rating.
Mr. Pirkl subsequently filed a Notice of Disagreement
with this rating decision, arguing that proper implementation
of the August 2006 Board decision would entitle
him to a 100% disability rating not just from September
30, 1952, to February 9, 1957, but from September 30,
1952, to November 30, 1988. After further development,
Mr. Pirkl appealed to the Board.
In a September 2008 decision, the Board concluded
that its August 2006 decision revised only the September
3, 1953, regional office decision on the basis of CUE. It
concluded that its finding of CUE in the September 3,
1953, decision did not affect the finality of any subsequent
decisions, including the December 10, 1956, regional office
decision and the January 12, 1967, Board decision, both of
which reduced Mr. Pirkl’s disability rating. The Board
also determined that the regional office did not err in its
implementation of the August 2006 Board decision.
The Board concluded that any challenge to the effective
date assigned by the regional office for the restoration
6 PIRKL v. DVA
of Mr. Pirkl’s 100% disability rating that did not involve a
request for revision of the December 10, 1956, regional
office decision and the January 12, 1967, Board decision
amounted to a free-standing claim to change a previously
established effective date, which is not contemplated by
VA statutes and regulations. J.A. 57 (citing Rudd v.
Nicholson, 20 Vet. App. 296, 300 (2006)). The Board
therefore dismissed the claim asserted by Mr. Pirkl for
100% disability for the entire period of time between
September 30, 1952 and August 30, 1988. Mr. Pirkl
appealed the Board’s dismissal to the Veterans Court, and
the Veterans Court affirmed the decision of the Board.
Mrs. Pirkl appeals to our court.2 We have jurisdiction
pursuant to 38 U.S.C. § 7292(a).
STANDARD OF REVIEW
Upon review of a challenge to a Veteran’s Court decision,
we may “hold unlawful and set aside any regulation
or any interpretation thereof (other than a determination
as to a factual matter) that was relied upon in the decision
of the Court of Appeals for Veterans Claims” if we
find it to be
(A) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege,
or immunity;
(C) in excess of statutory jurisdiction, authority,
or limitations, or in violation of a statutory right;
or
2 During the pendency of this dispute, Mr. Pirkl
died and the Court of Appeals for Veterans Claims substituted
his surviving spouse as the party-in-interest.
PIRKL v. DVA 7
(D) without observance of procedure required by
law.
38 U.S.C.A. § 7292 (d)(1).
Our authority to review decisions of the Veterans
Court includes plenary review of that court’s statutory
interpretations, but does not extend to review of the
court’s application of law to fact, except to the extent an
appeal presents a constitutional issue. Carpenter v.
Nicholson, 452 F.3d 1379, 1382-83 (Fed. Cir. 2006). If a
statutory interpretation of the Veterans Court is not in
accordance with law, we may “modify or reverse the
decision of the Court of Appeals for Veterans Claims or to
remand the matter, as appropriate.” 38 U.S.C. §
7292(e)(1).
DISCUSSION
The Veterans Court affirmed the Board’s decision that
Mr. Pirkl was not entitled to a 100% disability rating for
the entire period of time between September 30, 1952,
and August 30, 1988. Pirkl v. Shinseki, No. 09–0175,
2011 WL 5429156 (Vet. App. Nov. 10, 2011). In reaching
this determination, the Veterans Court found that “neither
the December 10, 1956, regional office decision nor
the Board decision of January 12, 1967, was premised on
the clearly and unmistakably erroneous September 3,
1953, regional office decision.” Id. at *4. “[A]s described
in those decisions,” the Veterans Court said, “the justification
for the rating reductions they effectuated was in each
instance newly acquired VA medical examinations and
evidence of changes in Mr. Pirkl’s employment status.”
Id. The Veterans Court thus concluded that the finding of
CUE in the September 1953 regional office decision did
not affect the subsequent reductions effected by the 1956
and 1967 decisions, which the court found to be independent
of the 1953 decision. Id. at *6 (“A restoration of a
100% disability rating for this entire period was not
8 PIRKL v. DVA
possible due to the December 10, 1956, regional office
decision and the January 12, 1967, Board decision . . . .”).
The Veterans Court also affirmed the Board’s conclusion
that Mrs. Pirkl’s claim was procedurally improper.
Id. at *6–7. Because Mrs. Pirkl had argued only that the
1953 regional office decision contained CUE, the Board
found that the 1956 and 1967 decisions were not properly
before it. The Veterans Court agreed with the Board, and
treated Mrs. Pirkl’s argument as a “free-standing claim,”
which the court determined “is not contemplated by VA
statutes and regulations.” Id.
On appeal, Mrs. Pirkl makes two alternative arguments.
First, Mrs. Pirkl argues that the Veterans Court
relied upon a misinterpretation of 38 U.S.C. § 5109A(b),
which requires that a decision finding CUE in a prior
decision “has the same effect as if the decision had been
made on the date of the prior decision.” 38 U.S.C. §
5109A(b). Under Mrs. Pirkl’s interpretation of the statute,
“once CUE in the 1953 RO decision was found, the
VA should have re-instated Mr. Pirkl’s 100% rating from
1953 forward, without interruption.” Appellant Br. 6.
Second, Mrs. Pirkl argues that in 1956, a reduction in
a total disability rating was governed by 38 C.F.R. § 3.170
(1949). This regulation, in relevant part, provided that:
Total disability ratings . . . will not be reduced, in
the absence of clear error, without physical examination
showing material improvement in
physical condition. Examination reports showing
material improvement must be evaluated in
conjunction with all the facts of record . . . .
38 C.F.R. § 3.170 (1949) (emphasis provided).3
3 The regulation was amended in 1956. See 38
C.F.R. § 3.170 (1956). The relevant provision was again
amended in 1966, and recodified as 38 C.F.R. § 3.343
PIRKL v. DVA 9
Specifically, Mrs. Pirkl argues that, once CUE was
found in the 1953 decision and Mr. Pirkl’s 100% total
disability rating was reinstated as of the date of the 1953
decision, § 3.170 became applicable to any subsequent
reduction to Mr. Pirkl’s disability rating. Hence, any
reduction to Mr. Pirkl’s disability rating was subject to
the “material improvement” requirement of § 3.170.
Appellant Br. 9. Mrs. Pirkl contends that because his
100% disability rating was reduced without first meeting
the material improvement requirement under § 3.170, the
1956 and 1966 reductions “became null and void because
of their connection to the legally improper 1953 reduction.”
Id.
The Government argues that a finding of CUE affects
only the decision at issue in the CUE claim, here, the
1953 decision. According to the Government, “[t]he
statute thus provides no authority for abrogating the
finality of later decisions if those later decisions are not
shown to contain CUE.” Appellee Br. 13 (emphasis added).
In the Government’s view, the 1956 RO decision and
1967 Board decision (which subsumed the 1966 RO decision)
are independent final decisions under the statute,
and cannot be reversed or revised unless CUE is shown to
exist independently in those decisions. The Government
argues that Mrs. Pirkl “cannot rely upon a finding of CUE
to [sic] in the 1953 RO decision alone to abrogate the
finality of those later decisions, without showing that the
later decisions contained CUE affecting the outcome of
those decisions.” Id. at 14.
The Government argues that Mrs. Pirkl’s appeal attempts
improperly to raise a freestanding claim to change
a previously established effective date by means other
(1966). The provision is codified presently as 38 C.F.R. §
3.343(a) (2012).
10 PIRKL v. DVA
than a claim of CUE or new and material evidence. Id. at
21.
Under the statute, a finding of CUE in a prior decision
must be implemented as if it had been made on the
date of the prior decision. This necessarily implies retroactive
effect. Here, the statute provides that “a rating or
other adjudicative decision that constitutes a reversal or
revision of a prior decision on the grounds of CUE has the
same effect as if the decision had been made on the date
of the prior decision.” 38 U.S.C. § 5109A(b).
Thus, while the Government is correct that the finding
of CUE in the 1953 decision does not necessarily
render null and void a subsequent, independent rating
decision, the finding of CUE can change the legal and
factual background against which a subsequent rating
decision is made, which is what happened in this case.
It is clear that the Board’s finding of CUE in the 1953
decision changed the factual and legal background
against which subsequent reductions were made, and that
the Board failed to consider the effect of this change in
implementing its finding of CUE. See 38 U.S.C. §
5109A(b) (“[A] rating or other adjudicative decision that
constitutes a reversal or revision of a prior decision on the
grounds of CUE has the same effect as if the decision had
been made on the date of the prior decision.” (emphasis
added)).
When the Board determined that the September 1953
decision contained CUE, Mr. Pirkl’s disability rating was
reset to 100% as of the date of the 1953 decision. This
means that the subsequent reduction of Mr. Pirkl’s disability
rating in 1956 became an effective reduction from a
100% total disability rating, not from a 70% disability
rating.
We accept, as we must, the Veterans Court’s factual
determination that the subsequent reductions in 1956 and
PIRKL v. DVA 11
1966 of Mr. Pirkl’s disability rating stand as independent
decisions. See Pirkl, 2011 WL 5429156, at *4. We thus
reject Mrs. Pirkl’s argument that the Board’s finding of
CUE in the 1953 decision initiated a “chain reaction” that
necessarily rendered those later decisions “null and void.”
Nevertheless, while the 1956 and 1966 decisions
stand as independent evaluations, the finding of CUE in
the 1953 decision effected a change in the legal context
applicable to those later decisions. Here, the Board failed
to consider the effect of the applicability of 38 C.F.R. §
3.170 (1949) or its successor regulations in the 1956 and
1966 decisions. For example, we find no support in the
record that establishes the 1956 rating decision took into
account the “material improvement” standard contained
in § 3.170. The CUE finding with respect to the 1953
decision thus requires the Board to revisit these later
findings and determine the extent to which the CUE
finding changes the legal or factual basis of the later
evaluations. See 38 U.S.C. § 5109A(b).
We acknowledge the importance of the rule of finality.
Yet we have made clear that a CUE challenge is one of
two statutory exceptions to the finality rule. Cook v.
Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (“Congress
knew how to create exceptions to the finality of VA decisions,
and it explicitly did so in two circumstances. It
enacted the statutes codifying CUE challenges (sections
5109A and 7111) and the statute allowing claims based on
new and material evidence (section 5108).”). Under 38
U.S.C. § 5109A(b), a finding of CUE may, under some
circumstances, require a later decision to be revisited.
See 38 U.S.C. § 5109A(b) (“[A] rating or other adjudicative
decision that constitutes a reversal or revision of a prior
decision on the grounds of CUE has the same effect as if
the decision had been made on the date of the prior decision.”).
As the Government admits, “[i]n some circumstances,
a finding of CUE in a prior decision may
necessarily establish that subsequent decisions on the
12 PIRKL v. DVA
same matter are clearly and unmistakably erroneous.”
Appellee Br. 20. That may or may not be the case here.
To be clear, we do not find that the finding of CUE in
the 1953 decision necessarily rendered the later rating
decisions clearly and unmistakably erroneous. We hold
that the regional office, in implementing the Board’s
finding of CUE, was required to consider the effects of
that CUE finding on the legal and factual basis of the
subsequent rating decisions.
We therefore vacate the
decision of the Veterans Court, and remand to the Board
so that it may consider in the first instance, and as part of
the implementation of its CUE finding, whether the
subsequent reductions of Mr. Pirkl’s disability rating in
1956 and 1966 remain proper in view of the applicable
regulations in effect at the time.

CONCLUSION
For the reasons above, we vacate the decision of the
Veteran Court, and remand to the Board to consider the
effect of 38 C.F.R. § 3.170 (1949) or its successor regulations
on the December 1956 and April 1966 reductions.
VACATED AND REMANDED

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