Veteranclaims’s Blog

October 17, 2018

Pirkl v. Wilkie, No. 2017-1916(Decided: October 17, 2018); CUE; 38 C.F.R. § 3.170 (1949); 38 C.F.R. § 3.343; retrospective staged rating;

Excerpt from decision below:

“This case returns to us from a decision of the Court of Appeals for Veterans Claims rendered on remand from our decision in Pirkl v. Shinseki, 718 F.3d 1379 (Fed. Cir.
2013) (Pirkl I), where we addressed the remedy required for a clear and unmistakable error in a disability rating decision long ago. We now reverse the Veterans Court’s
decision. We conclude that the Veterans Court mistakenly interpreted a key regulation and took too constrained a view of the legally required corrective remedy for the undisputed rating decision error. We remand for further proceedings to conduct the inquiry needed to give the required remedy.

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

“But we held that the 1956 and 1966 decisions did not, simply because of their finality, block including post-1956 and post-1966 relief as part of a remedy for the 1953 CUE.
“[A] finding of CUE may, under some circumstances, require a later decision to be revisited.” Id. What was
8 PIRKL v. WILKIE

needed was an inquiry into whether and how correction of the 1953 error altered the bases for, and ultimate conclusions of, the 1956 and 1966 decisions. Id. at 1384–85.

Specifically, we stressed the basic statutory standard for implementing a CUE ruling. “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.” Id. at 1384. We three times quoted the command of 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 clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.” See 718 F.3d at 1384–85.2
We explained that, to give the 2006 CUE correction of the 1953 rating decision the “effect as if” originally made in 1953, the 1956 decision must be examined, not simply taken as prospectively controlling without examination.
The key point was that “the Board’s finding of CUE in the 1953 decision changed the factual and legal background against which subsequent reductions were made”: in
particular, when the Board found CUE in the 1953 decision, “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”(which was the starting point for the actual 1956 rating decision). Id. at 1384. Yet the Board “failed to consider the effect of this change in implementing its finding of CUE.” Id. The question, in short, is whether and how the 1956 decision would have been different if the VA had started with a 100% disability rating, not the 70% disability rating that it actually (but, in retrospect, mistakenly) started with. But the Board did not ask that question.
2 The provision governing revisions based on CUE
in Board decisions contains materially identical language.
See 38 U.S.C. § 7111(b).
PIRKL v. WILKIE 9

Still more particularly, we emphasized the role of the regulation governing reductions of 100% disability ratings. 38 C.F.R. § 3.170 (1949); 38 C.F.R. § 3.343. Immediately after noting that the CUE finding “effected a change in the legal context applicable to those later decisions,” we explained that “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.” Pirkl I, 718 F.3d at 1384. We added: “we find no support in the record that establishes the 1956 rating decision took into account the ‘material improvement’ standard” of the regulation. Id. Again citing 38 U.S.C. § 5109A(b), we held: “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.” Id. We vacated the Veterans Court’s decision and ordered a remand so that the Board “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.” Id. at 1385.

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

“In the “retrospective staged rating” situation that defined “the narrow issue”
decided in Reizenstein, id. at 1334, the regulatory language did not supply an unambiguous answer, whereas it does here. The language of “reduc[ing]” a “total disability rating[]” based on “improvement” unambiguously covers the ordinary situation, like the one at issue in this case, in which the question is whether the rating assigned in one rating decision (100% on an open-ended prospective basis) is to be superseded by a second, later rating decision (that assigns a lower rating). In contrast, the regulatory language does not clearly cover the single-VA-decision situation
considered in Reizenstein. In that circumstance, the VA could resolve the textual uncertainty by reading the regulation as inapplicable to that situation, if that reading
was otherwise reasonable, as this court concluded it was. Id. at 1337–38. Here, there is no textual uncertainty to resolve.
Indeed, in Reizenstein, we emphasized the government’s
contention that “the regulation was intended to be
applied to existing ratings that are reduced on a prospective
basis” and contrasted “the money awarded for a
staged rating” as “compensation for a past period of
disability and . . . independent of the veteran’s entitlement
to continuing benefits,” so that a veteran’s receipt of an
ongoing total-disability benefit (on which the veteran may
depend) is not being cut off in the staged-rating situation.
Id. at 1337 (emphases added). In the present case, as we
explained in Pirkl I, the 2006 finding of CUE in the 1953
rating decision means that Mr. Pirkl is deemed to have
had a continuing 100% disability rating when the 1956
process of VA re-assessment began. See 718 F.3d at 1384.
As a result, the reduction adopted in 1956 was a prospective
reduction of continuing benefits at the 100% level,
thus coming within Reizenstein’s own rationale for the
regulation’s scope and outside Reizenstein’s rationale
explaining why the Secretary’s interpretation to exclude
16 PIRKL v. WILKIE
the staged-rating situation was reasonable. The fact that
Mr. Pirkl was, because of the VA’s error, not actually
receiving the 100%-rating benefit in 1956 no more makes
the regulation inapplicable to the 1956 decision to reduce
his rating than it disentitles him to retroactive relief
under the regulation for the period from 1953 to 1956. In
those years, Mr. Pirkl was not actually receiving the
100%-rating benefits, because of the VA’s error, yet the
Board awarded relief for that period, and the government
does not dispute the propriety of that relief.

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

United States Court of Appeals for the Federal Circuit
______________________
REGINA M. PIRKL,
Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee
______________________
2017-1916
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-4303, Senior Judge Lawrence
B. Hagel.
______________________
Decided: October 17, 2018
______________________
KENNETH M. CARPENTER, Law Offices of Carpenter
Chartered, Topeka, KS, argued for claimant-appellant.
JOHN JACOB TODOR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for respondent-appellee. Also
represented by MARTIN F. HOCKEY, JR., ROBERT EDWARD
KIRSCHMAN, JR., CHAD A. READLER; MEGHAN ALPHONSO,
BRIAN D. GRIFFIN, Office of General Counsel, United
States Department of Veterans Affairs, Washington, DC.
______________________
2 PIRKL v. WILKIE

Before REYNA, TARANTO, and CHEN, Circuit Judges.
TARANTO, Circuit Judge.
This case returns to us from a decision of the Court of Appeals for Veterans Claims rendered on remand from our decision in Pirkl v. Shinseki, 718 F.3d 1379 (Fed. Cir.
2013) (Pirkl I), where we addressed the remedy required for a clear and unmistakable error in a disability rating decision long ago. We now reverse the Veterans Court’s decision. We conclude that the Veterans Court mistakenly interpreted a key regulation and took too constrained a view of the legally required corrective remedy for the undisputed rating decision error. We remand for further proceedings to conduct the inquiry needed to give the required remedy.
I
A
Robert Pirkl, the late husband of appellant Regina
Pirkl, served in the United States Navy between 1947 and
1949. He filed a claim in 1950 with the Veterans Administration
(now the Department of Veterans Affairs, both “VA”), seeking disability benefits based on a serviceconnected psychiatric condition. The VA awarded him benefits, assigning him a low disability rating. Subsequently, based on changed circumstances, the VA assigned
him a 100% disability rating effective September 30, 1952. Pirkl I, 718 F.3d at 1380.
There followed a series of new VA decisions over the years that adopted lower disability ratings for 35 years.
First, on September 3, 1953, the relevant VA regional office reduced Mr. Pirkl’s disability rating to 70%, effective November 3, 1953, based on a newly acquired VA medical examination. Second, on December 10, 1956, the VA regional office reduced Mr. Pirkl’s then-70% disability rating to 50%, effective February 9, 1957, citing a VA
PIRKL v. WILKIE 3

medical examination and a change in Mr. Pirkl’s employment status. Third, on April 13, 1966, the VA regional office reduced Mr. Pirkl’s then-50% disability rating to 30%, effective July 1, 1966, based on a VA medical examination and additional evidence regarding Mr. Pirkl’s employment status. Mr. Pirkl appealed that decision
(unlike the 1953 and 1956 decisions) to the Board of Veterans’ Appeals, which affirmed the 1966 reduction in January 1967. Finally, after extensive litigation based on a 1991 claim to reopen a previously denied claim, the Board awarded Mr. Pirkl a 100% disability rating, effective November 30, 1988. See id.
B
In December 2001, Mr. Pirkl filed a motion under 38 U.S.C. § 5109A to revise, based on asserted clear and unmistakable error (CUE), the three VA decisions that left him without a 100% rating between late 1953 and late 1988, namely, the September 1953, December 1956, and April 1966 rating decisions.
The VA addressed the 1966 decision first—without waiting for a decision on whether there was CUE in the 1953 or 1956 rating decisions that together produced the
50%-rating starting point for the VA’s 1966 decision (which reduced the rating further, to 30%). Because the 1966 decision had been affirmed by the Board in 1967, the
allegation of CUE in the 1966 decision was treated as a CUE motion under 38 U.S.C. § 7111 (concerning requests for revision of Board decisions based on CUE) and was addressed directly by the Board, rather than a VA regional office. See 38 U.S.C. § 7111(e)–(f) (providing that a request for revision of a final Board decision based on CUE “shall be submitted directly to the Board and shall be decided by the Board on the merits” and, if submitted elsewhere, is to be referred to the Board); 38 C.F.R. § 20.1104 (“When a determination of the agency of original jurisdiction is affirmed by the Board of Veterans’
4 PIRKL v. WILKIE

Appeals, such determination is subsumed by the final appellate decision.”). In August 2002, the Board found no CUE in its 1967 affirmance of the 1966 disability rating
reduction from 50% to 30%. Pirkl I, 718 F.3d at 1381.
The Board, in its ruling, addressed only whether the reduction from 50% to 30% was clear and unmistakable error; it did not address whether the 50% starting point
was clear and unmistakable error. See Decision No. 0208991, Docket No. 02-00 114A, 2002 WL 32560331, at *6–9 (Bd. Vet. App. Aug. 2, 2002).
The VA regional office then took up the claim of CUE in the rating-reduction decisions of September 1953 (from 100% to 70%) and December 1956 (from 70% to 50%). In February 2005, it determined that Mr. Pirkl had not shown CUE in either decision. In October 2005, Mr. Pirkl filed a Notice of Disagreement with the February 2005 ruling, and in May 2006, he appealed to the Board. In both instances, according to the later descriptions by the
Veterans Court and the Board, he referred only to the portion of the regional office’s ruling that found no CUE in the 1953 rating decision. He did not separately challenge
the portion that found no CUE in the 1956 rating decision. See Pirkl I, 718 F.3d at 1381.
In August 2006, the Board concluded that Mr. Pirkl was right in his claim of CUE in the September 1953 rating decision that reduced his disability rating from 100% to 70%. It determined that the VA in 1953 had failed to comply with 38 C.F.R. § 3.170 (1949), a regulation governing reductions of 100% (total) disability ratings.
The regulation provided:
Total disability ratings . . . , when warranted by
the severity of the condition, and not granted
purely because of hospitalization or home treatment,
. . . will not be reduced, in the absence of
clear error, without physical examination showing
material improvement in physical condition. ExPIRKL
v. WILKIE 5
amination reports showing material improvement
must be evaluated in conjunction with all the facts
of record and consideration must be given particularly
to whether the veteran attained improvement
under the ordinary conditions of life, i.e.,
while actually at work, or whether the symptoms
have been brought under control by prolonged
rest, or generally, by following a regimen which
precludes work, and if the latter, reduction from
total disability rating will not be considered pending
reexamination after a period of employment
(three to six months).
The Board found “undebatable error in the application of
38 C.F.R. § 3.170” because Mr. Pirkl “was not employed at
the time of the examination which formed the basis of the
reduction in rating, and he was not reexamined after an
appropriate period of employment.” J.A. 39; see Pirkl I,
718 F.3d at 1381.1
1 The regulation was amended in 1956, and it was
amended and recodified as 38 C.F.R. § 3.343 in 1966. The
parties agree that § 3.170 was in force as of the September
1953 and December 1956 rating decisions and § 3.343
was in force as of the April 1966 rating decision. See Pirkl
Br. 21–22; VA Br. 16. The current version states:
(a) General. Total disability ratings, when warranted
by the severity of the condition and not
granted purely because of hospital, surgical, or
home treatment, or individual unemployability
will not be reduced, in the absence of clear error,
without examination showing material improvement
in physical or mental condition. Examination
reports showing material improvement must
be evaluated in conjunction with all the facts of
record, and consideration must be given particu6
PIRKL v. WILKIE
C
There followed a series of rulings about implementation
of the Board’s 2006 determination of CUE in the 1953
decision. Those rulings gave rise to the issues that this
court addressed in 2013 and addresses again now.
1
Ten days after the Board’s CUE ruling in 2006, the
regional office awarded Mr. Pirkl a 100% disability rating
from September 30, 1952, to February 9, 1957, the effective
date of the December 1956 decision that reduced his
disability rating from 70% to 50%. The regional office
treated the December 1956 and April 1966 decisions (the
latter affirmed by the Board in 1967) as barring—even as
part of the remedial implementation of the CUE ruling
that reversed the 1953 reduction below 100%—
consideration of any increase in Mr. Pirkl’s disability
rating beyond February 9, 1957. See J.A. 44 (“It is noted
that the [Board] decision only addresses 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.”); Pirkl I, 718 F.3d at 1381.
larly to whether the veteran attained improvement under the ordinary conditions of life, i.e., while working or actively seeking work or whether the symptoms have been brought under control by prolonged rest, or generally, by following a regimen which precludes work, and, if the latter, reduction from total disability ratings will not be considered pending reexamination after a period of employment (3 to 6 months).
Neither party here suggests that any language differences in the various versions of the regulation are material to this appeal.
PIRKL v. WILKIE 7

On appeal to the Board, Mr. Pirkl argued that, because
the Board awarded him a 100% disability rating as
of September 30, 1952, the regulation on reductions of
100% ratings should have governed in 1956 and 1966, but
the VA had not afforded him the regulation’s protections
in those years. The failure to apply the regulation in
those years is hardly surprising: in both those years, Mr.
Pirkl began the disability rating re-assessment with less
than a 100% rating, a premise for application of the
regulation. The Board concluded, however, that the
December 1956 and April 1966 decisions (the latter
affirmed by the Board in 1967) were final as to the rating
reductions and their effective dates and that it followed
from such finality that the August 2006 Board CUE
ruling as to the 1953 rating decision was properly implemented
“by simply continuing the 100 percent evaluation
until the next final rating reduction in December 1956,
which was effective in February 9, 1957.” J.A. 92–93. For
that reason, the Board dismissed Mr. Pirkl’s appeal, and
the Veterans Court subsequently affirmed, with Mrs.
Pirkl substituted for her husband when he died. Pirkl I,
718 F.3d at 1381–82.
2
In Pirkl I, we vacated the Veterans Court’s decision
and remanded the case for further proceedings. We noted
the Veterans Court’s “factual determination that the
subsequent reductions in 1956 and 1966 of Mr. Pirkl’s
disability rating stand as independent decisions.” 718
F.3d at 1384. And we rejected “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.’” Id. (emphasis added). But we held that the 1956 and 1966 decisions did not, simply because of their finality, block including post-1956 and post-1966 relief as part of a remedy for the 1953 CUE.
“[A] finding of CUE may, under some circumstances, require a later decision to be revisited.” Id. What was
8 PIRKL v. WILKIE

needed was an inquiry into whether and how correction of the 1953 error altered the bases for, and ultimate conclusions of, the 1956 and 1966 decisions. Id. at 1384–85.
Specifically, we stressed the basic statutory standard for implementing a CUE ruling. “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.” Id. at 1384. We three times quoted the command of 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 clear and unmistakable error has the same effect as if the decision had been made on the date of the prior decision.” See 718 F.3d at 1384–85.2
We explained that, to give the 2006 CUE correction of the 1953 rating decision the “effect as if” originally made in 1953, the 1956 decision must be examined, not simply taken as prospectively controlling without examination.
The key point was that “the Board’s finding of CUE in the 1953 decision changed the factual and legal background against which subsequent reductions were made”: in
particular, when the Board found CUE in the 1953 decision, “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”(which was the starting point for the actual 1956 rating decision). Id. at 1384. Yet the Board “failed to consider the effect of this change in implementing its finding of CUE.” Id. The question, in short, is whether and how the 1956 decision would have been different if the VA had started with a 100% disability rating, not the 70% disability rating that it actually (but, in retrospect, mistakenly) started with. But the Board did not ask that question.
2 The provision governing revisions based on CUE
in Board decisions contains materially identical language.
See 38 U.S.C. § 7111(b).
PIRKL v. WILKIE 9

Still more particularly, we emphasized the role of the regulation governing reductions of 100% disability ratings. 38 C.F.R. § 3.170 (1949); 38 C.F.R. § 3.343. Immediately after noting that the CUE finding “effected a change in the legal context applicable to those later decisions,” we explained that “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.” Pirkl I, 718 F.3d at 1384. We added: “we find no support in the record that establishes the 1956 rating decision took into account the ‘material improvement’ standard” of the regulation. Id. Again citing 38 U.S.C. § 5109A(b), we held: “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.” Id. We vacated the Veterans Court’s decision and ordered a remand so that the Board “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.” Id. at 1385.
3
On remand, the Board again dismissed Mrs. Pirkl’s appeal of the regional office’s decision not to give relief for the 1953 CUE past the effective date of the 1956 rating reduction. The Board stressed the absence of separate, preserved claims of CUE in the 1956 and 1966 decisions(the latter affirmed by the Board in 1967). It also went on to conclude that the regulation governing VA decisions that reduce 100% disability ratings did not apply to Mr. Pirkl in 1956 and 1966. Specifically, it relied on this court’s decision in Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009), to conclude that the regulation applies only when the VA considers reducing a rating at a time when the claimant was actually receiving benefits under a
10 PIRKL v. WILKIE
100% disability rating, not when a claimant was, like Mr. Pirkl, legally entitled to benefits under a 100% disability rating but was not receiving them because of clear and unmistakable VA error. The Board held that the regulation did not have to be applied in the 1956 and 1966 decisions because Mr. Pirkl “was never in receipt of a 100 percent rating during the time period being currently examined on appeal.” J.A. 138. Accordingly, the Board considered it “unnecessary to conduct an analysis of whether the ‘material improvement’ standard outlined in those regulations was met at the time of the rating reductions in the December 1956 and April 1966 rating decisions.” Id.
Mrs. Pirkl appealed to the Veterans Court, which affirmed
the Board’s decision, substantially for the reasons
stated by the Board as just summarized. She then timely
appealed to this court. We have jurisdiction pursuant to
38 U.S.C. § 7292. As the parties properly agree, the
questions presented are legal ones concerning the meaning
of a regulation and the scope of the Board’s remedial
obligations under Title 38 and this court’s Pirkl I decision.
II
Under our decision in Pirkl I, and under 38 U.S.C.
§ 5109A, it is clear, and the government does not dispute,
that the Board had the authority and the obligation to
implement its 2006 finding of CUE in the 1953 rating
decision, a finding that revised the 1953 decision to leave
the 100% rating in place as of 1953. See VA Br. 25. We
conclude that it is also clear, under the language of Pirkl I
and under the governing law, that implementing the 2006
CUE decision requires renewed consideration of the 1956
and 1966 decisions to ensure that Mr. Pirkl is restored to
the ratings he would have had over time, upon application
of the governing legal standards, in the absence of the
now-revised 1953 reduction of his disability rating from
100% to 70%. The governing legal standards, we also
PIRKL v. WILKIE 11
conclude, include the regulation for reductions of 100%
ratings.
A
The language of Pirkl I is explicit that the remedy for
the CUE in 1953, i.e., the implementation of the 2006
revision of the 1953 decision, which restored Mr. Pirkl’s
100% disability rating, did not automatically stop at 1956
just because of the 1956 and 1966 rating decisions (the
latter affirmed by the Board in 1967). We remanded for
the Board to “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.” 718 F.3d at 1385. That
statement followed our explanation that “[t]he 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.” Id. at 1384 (emphasis
added). And we specifically explained that the
2006 revision meant that Mr. Pirkl must be treated as
having come into the 1956 VA re-assessment of his disability
with a 100% rating, not the 70% rating the 1953
decision had mistakenly left him with: the 1956 reduction
“became an effective reduction from a 100% total disability
rating.” Id. (emphasis added). As a result, the question
arose, and had to be considered on remand, whether the
regulation on reductions of 100% ratings should have
been applied to Mr. Pirkl in 1956 and 1966, with the
answer to that question affecting what role the 1956 and
1966 rating decisions could properly play in determining
12 PIRKL v. WILKIE

how long past 1953 he would have kept his 100% rating.
Id. at 1384–85.3
B
We relied in Pirkl I on 38 U.S.C. § 5109A(b) as the
controlling statute on the scope of the remedy. That
statute is explicit that “[a] rating or other adjudicative
decision that constitutes a reversal or revision of a prior
decision on the grounds of clear and unmistakable error
has the same effect as if the decision had been made on
the date of the prior decision.” Under that language,
giving the 2006 revision of the 1953 decision “the same
effect as if” the revision had been the decision in 1953
requires that Mr. Pirkl be treated as having the pre-1953
100% rating after 1953, as is undisputed here. See also
Hamer v. Shinseki, 24 Vet. App. 58, 61 (2010) (noting
that, under section 5109A(b), a Board decision finding
CUE in an earlier decision “carries with it the same
rights, privileges, and constraints that the initial disability
rating . . . would have”), aff’d, 438 F. App’x 897 (Fed.
Cir. 2011).
The language of section 5109A(b) is one way of stating
the fundamental principle of corrective remedies that is
used throughout the law, though sometimes with modifications:
“The injured party is to be placed, as near as may
be, in the situation he would have occupied if the wrong
had not been committed.” Wicker v. Hoppock, 73 U.S. 94,
99 (1867); see Missouri v. Jenkins, 515 U.S. 70, 87 (1995)
(noting that “all remedies” are designed “to restore the
victims of [wrongful] conduct to the position they would
have occupied in the absence of such conduct”); see also,
3 If Mr. Pirkl would have properly lost his 100% rating
in 1956, the regulation would have been inapplicable
in 1966. If he would have kept the 100% rating in 1956,
he still might have lost it in 1966.
PIRKL v. WILKIE 13
e.g., United States v. Virginia, 518 U.S. 515, 547 (1996);
Milliken v. Bradley, 433 U.S. 267, 280–81 (1977); Albemarle
Paper Co. v. Moody, 422 U.S. 405, 418–19 (1975)
(quoting Wicker, 73 U.S. at 99); Phelps Dodge Corp. v.
NLRB, 313 U.S. 177, 187, 194 (1941); Kerr v. Nat’l Endowment
for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984)
(“[T]he basic purpose of a reinstatement or back pay order
is ‘restoration of the situation, as nearly as possible, to
that which would have obtained but for the [wrongful
conduct].’” (quoting Phelps Dodge, 313 U.S. at 194)).
We see no basis for reading section 5109A(b) as departing
from that basic standard for a corrective remedy
when the Board revises an earlier VA decision based on
clear and unmistakable error in that earlier decision.
Accordingly, the statutorily required remedy here is to
give Mr. Pirkl the ratings he would have had, over time, if
he had retained his 100% rating in 1953. And that remedy
logically requires examination of the 1956 and 1966
decisions and proceedings to determine what they do or do
not show about when, if ever, Mr. Pirkl would have lost
his 100% rating under the applicable legal standards had
they been applied.
C
The applicable legal standards, we hold, include the
regulation governing reductions of 100% ratings. 38
C.F.R. § 3.170 (1949); 38 C.F.R. § 3.343. The government
argues that the regulation did not cover Mr. Pirkl’s situation
in 1956, even on the legally required assumption that
the revised 1953 decision left him with a 100% rating
after 1953. See VA Br. 16. We disagree.4
4 The government does not distinguish the 1956 decision
from the 1966 decision in its argument about the
applicability of the regulation. For simplicity, we focus on
the 1956 decision.
14 PIRKL v. WILKIE
We have already held that, “[w]hen 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,” and “[t]his 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.” Pirkl
I, 718 F.3d at 1384. Mr. Pirkl thus must be deemed to
have had a “[t]otal disability rating[]” in 1956. 38 C.F.R.
§ 3.170 (1949); see 38 C.F.R. § 3.343. Under the plain
language of the regulation, that rating could “not be
reduced” except in accordance with the regulation’s terms.
38 C.F.R. § 3.170 (1949); see 38 C.F.R. § 3.343.
The government has no textual argument for a contrary
conclusion. Rather, it points to this court’s decision
in Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009),
and argues that Reizenstein’s reasoning should lead us to
conclude that the regulation did not apply to Mr. Pirkl as
of 1956. We reject the argument.
In Reizenstein, the Board rendered a single decision
that, looking back at the 10-year period of alleged disability
at issue, adopted a “retrospective staged rating”: based
on a finding of different degrees of disability during
different segments of the past period at issue, the Board
assigned ratings of 30%, 50%, 100%, and 30% for successive
portions of the period. Id. at 1333. When Mr.
Reizenstein argued to this court that the Board could not
find a 30% disability after the period of 100% disability
without complying with 38 C.F.R. § 3.343(a), we disagreed.
Rather, we held, the VA had reasonably interpreted
the regulation not to apply to the situation of a single
VA decision simply finding that, in the past period at
issue, the claimant’s disability varied in degree, with an
intermediate portion of the period involving total disability.
583 F.3d at 1334–38.
PIRKL v. WILKIE 15
That ruling does not apply here. In the “retrospective
staged rating” situation that defined “the narrow issue”
decided in Reizenstein, id. at 1334, the regulatory language
did not supply an unambiguous answer, whereas it
does here. The language of “reduc[ing]” a “total disability
rating[]” based on “improvement” unambiguously covers
the ordinary situation, like the one at issue in this case, in
which the question is whether the rating assigned in one
rating decision (100% on an open-ended prospective basis)
is to be superseded by a second, later rating decision (that
assigns a lower rating). In contrast, the regulatory language
does not clearly cover the single-VA-decision situation
considered in Reizenstein. In that circumstance, the
VA could resolve the textual uncertainty by reading the
regulation as inapplicable to that situation, if that reading
was otherwise reasonable, as this court concluded it
was. Id. at 1337–38. Here, there is no textual uncertainty
to resolve.
Indeed, in Reizenstein, we emphasized the government’s
contention that “the regulation was intended to be
applied to existing ratings that are reduced on a prospective
basis” and contrasted “the money awarded for a
staged rating” as “compensation for a past period of
disability and . . . independent of the veteran’s entitlement
to continuing benefits,” so that a veteran’s receipt of an
ongoing total-disability benefit (on which the veteran may
depend) is not being cut off in the staged-rating situation.
Id. at 1337 (emphases added). In the present case, as we
explained in Pirkl I, the 2006 finding of CUE in the 1953
rating decision means that Mr. Pirkl is deemed to have
had a continuing 100% disability rating when the 1956
process of VA re-assessment began. See 718 F.3d at 1384.
As a result, the reduction adopted in 1956 was a prospective
reduction of continuing benefits at the 100% level,
thus coming within Reizenstein’s own rationale for the
regulation’s scope and outside Reizenstein’s rationale
explaining why the Secretary’s interpretation to exclude
16 PIRKL v. WILKIE
the staged-rating situation was reasonable. The fact that
Mr. Pirkl was, because of the VA’s error, not actually
receiving the 100%-rating benefit in 1956 no more makes
the regulation inapplicable to the 1956 decision to reduce
his rating than it disentitles him to retroactive relief
under the regulation for the period from 1953 to 1956. In
those years, Mr. Pirkl was not actually receiving the
100%-rating benefits, because of the VA’s error, yet the
Board awarded relief for that period, and the government
does not dispute the propriety of that relief.
Accordingly, contrary to the government’s contention,
the regulation was applicable to Mr. Pirkl’s situation in
1956, and a reduction, to be lawful, had to meet the
regulation’s requirements.
D
In these circumstances, the remedial standard of section
5109A(b) requires the Board to determine, in this
case, whether (and by how much) Mr. Pirkl’s 100% rating
would have been reduced in 1956 had the regulation for
reductions of 100% ratings been applied then and, if the
100% rating remained after 1956, whether (and by how
much) the 100% rating would have been reduced in 1966
had the regulation been applied then. The Board has not
yet conducted the required remedial inquiry.
The VA did not apply the regulation at either time: after
all, because of the incorrect 1953 decision, the reassessments
of disability in 1956 and 1966 did not actually
present an occasion to apply the regulation, given that
Mr. Pirkl entered the re-assessments in both of those
years without a 100% disability rating. As a result, the
VA has not specifically decided how the regulation applied
in 1956 and 1966. Nevertheless, the records and findings
in the VA decisions in those years may be relevant, and
may even supply an answer, to the remedial question now
presented. To give Mr. Pirkl the corrective remedy required
by section 5109A(b), the Board must examine
PIRKL v. WILKIE 17
those records and findings to determine what ratings Mr.
Pirkl would have had up through 1988 if the clearly and
unmistakably erroneous decision in 1953 had not been
made and the applicable law, including the regulation we
have discussed, had been followed. In particular, this
inquiry involves consideration of whether the medical
examinations in 1956 and 1966, mentioned in the record
before us (as already noted), would have supported the
findings needed under the regulation had it been applied.
We ruled in Pirkl I that the existence of the 1956 and
1966 rating decisions (the latter affirmed by the Board in
1967) does not itself block the case-specific inquiry required
to give a proper remedy for the CUE in 1953. We
held that the Board must “revisit these later findings and
determine the extent to which the CUE finding changes
the legal or factual basis of the later evaluations.” 718
F.3d at 1384 (citing 38 U.S.C. § 5109A(b)). We so ruled
even while recognizing that Mr. Pirkl unsuccessfully
sought separate CUE relief from the 1956 and 1966
decisions, on grounds distinct from the propagation forward
of the 1953 clear and unmistakable error as to Mr.
Pirkl’s disability rating, and that the rejections of those
separate CUE challenges had become final. Id. at 1381.
The government has not shown that Pirkl I is wrong
in this respect. Most importantly, it has not pointed to
any statutory provision that curtails the section 5109A(b)
entitlement to receive corrective relief for CUE where the
CUE (an incorrect rating) has propagated into later
decisions, simply because rejections of distinct challenges
to the later decisions are final. This entitlement is part of
the statutory CUE exception to finality (here, the finality
of the 1953 decision); it is not, as the government might
be suggesting, some additional exception to finality,
beyond those provided by 38 U.S.C. §§ 5108, 5109A, 7111.
Nor can the government say that the later rating decisions
break the chain of causation from the 1953 rating to
later ratings: far from being either causally independent
18 PIRKL v. WILKIE
or unforeseeable, the clearly and unmistakably wrong
1953 rating had the effect under the benefits regime of
setting the express premise for the 1956 decision, which
in turn set the express premise for the 1966 decision.5
More generally, the government has not pointed to
statutory, regulatory, or judicial authority establishing
that, even before the resolution of the CUE challenge to
the 1953 decision, Mr. Pirkl was required to challenge the
1956 and 1966 rating decisions not only on the grounds he
did assert, but also on the ground that they started with
incorrect premises (too low a rating) because of the 1953
error separately being challenged, or establishing that
Mr. Pirkl had to try to keep alive the separate CUE
challenges to the 1956 and 1966 decisions while the CUE
challenge to the 1953 decision was being considered.6 We
5 Inquiries into whether subsequent events eliminate
or curtail liability or damages for earlier wrongful
conduct have long focused on the independence and
foreseeability of those subsequent events vis-à-vis the
earlier conduct. See, e.g., Lillie v. Thompson, 332 U.S.
459, 462 (1947); Atchison, Topeka, & Santa Fe Ry. Co. v.
Calhoun, 213 U.S. 1, 7 (1909); Milwaukee & Saint Paul
Ry. Co. v. Kellogg, 94 U.S. 469, 475 (1877); see also Utah
v. Strieff, 136 S. Ct. 2056, 2073 (2016) (Kagan, J., dissenting)
(citing W. Page Keeton et al., Prosser and Keeton on
the Law of Torts 312 (5th ed. 1984)).
6 In federal court litigation, Rule 60(b)(5) provides
that a court may set aside a judgment that is final when
that judgment is “based on an earlier judgment that has
been reversed or vacated.” Fed. R. Civ. P. 60(b)(5). “This
ground is limited to cases in which the present judgment
is based on the prior judgment in the sense of claim or
issue preclusion.” 11 Charles Alan Wright et al., Federal
Practice and Procedure § 2863 (3d ed. 2012). In that
context, involving a second judgment’s dependency on a
PIRKL v. WILKIE 19
note that, in this matter, the Board itself separated out
the 1966 CUE issue from the 1953 and 1956 issues and
finally decided the 1966 CUE issue without waiting for
resolution of the 1953 CUE challenge. We conclude that
we have not been shown a convincing basis for finding
that Mr. Pirkl committed a procedural default limiting his
ability to secure the corrective relief guaranteed by section
5109A(b) or that relief automatically stops in time at
the 1956 rating decision.
III
We therefore reverse the Veterans Court’s decision
and remand for that court to remand to the Board for
further proceedings consistent with this opinion.
Costs awarded to Mrs. Pirkl.
REVERSED AND REMANDED
first, finality of the second judgment, with no still-pending
direct appeals, is no bar to its being corrected once the
underlying first judgment is corrected. See, e.g., id.;
Lowry Dev., L.L.C. v. Groves & Assocs. Ins., Inc., 690 F.3d
382, 388 (5th Cir. 2012); Werner v. Carbo, 731 F.2d 204,
208 (4th Cir. 1984); see also 18A Wright et al., supra,
§ 4433.

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