REGINA M. PIRKL, Claimant-Appellant
ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellee
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.
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.
Reyna, Taranto, and Chen, Circuit Judges.
Taranto, Circuit Judge.
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.
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
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.
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
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).
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.
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).
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.
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 ...