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Pirkl v. Wilkie

United States Court of Appeals, Federal Circuit

October 17, 2018

REGINA M. PIRKL, Claimant-Appellant
v.
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee

          Appeal from the United States Court of Appeals for Veterans Claims in No. 14-4303, Senior Judge Lawrence B. Hagel.

          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.

          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 service-connected 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 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' 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. Examination 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]

         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 ...


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