906 F.3d 1371
Fed. Cir.2018Background
- Robert Pirkl received a VA 100% disability rating in 1952, then VA regional offices reduced his rating in 1953 (to 70%), 1956 (to 50%), and 1966 (to 30%); the 1966 reduction was appealed and affirmed by the Board in 1967.
- In 2001 Regina Pirkl (substituted after Robert’s death) filed a § 5109A CUE motion challenging the 1953, 1956, and 1966 rating decisions as clearly and unmistakably erroneous.
- In August 2006 the Board found CUE in the 1953 decision because VA failed to apply 38 C.F.R. § 3.170 (1949) protections for reductions from a total (100%) rating, and restored 100% back to 1952–1957 for the period before the 1956 reduction’s effective date.
- The Board and the Veterans Court treated the later 1956 and 1966 reductions as final and declined to extend relief beyond the effective date of the 1956 reduction without separately preserved CUE findings for those decisions.
- This Court in Pirkl I vacated that result and remanded, holding that § 5109A(b) requires a CUE correction to have the "same effect as if" made on the prior decision’s date and thus the Board must examine whether correcting the 1953 error changes the legal/factual basis of the 1956 and 1966 reductions (including whether the regulation governing reductions from 100% applied).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3.170/3.343 (regulation protecting reductions from 100%) applies to later reductions (1956, 1966) once 1953 is corrected to 100% | Pirkl: CUE in 1953 resets rating to 100% as of 1953, so later reductions are prospective reductions of a continuing 100% rating and must satisfy § 3.170/3.343 | VA: Regulation applies only when claimant was actually in receipt of a 100% rating at the time; because Pirkl was not receiving benefits at 100% in 1956/1966 the regulation need not apply | Court: Regulation applies; once 1953 is corrected, later reductions are reductions from a continuing 100% rating and must meet the regulation’s requirements |
| Scope of remedial inquiry after finding CUE in an earlier decision | Pirkl: Board must revisit subsequent decisions to determine what ratings claimant would have had "over time" if earlier error had not occurred (implement § 5109A(b)) | VA: Final later decisions (1956, 1966) bar relief past their effective dates absent separate preserved CUE; Board’s prior implementation to stop at 1956 was proper | Court: § 5109A(b) requires treating the revision as if made on the earlier date; the Board must examine whether correcting 1953 changes the legal/factual bases of 1956/1966 and thus the remedy can extend beyond those dates |
| Effect of prior finality of separate CUE rejections on remedial relief from earlier CUE | Pirkl: Final rejections of independent CUE claims in 1956/1966 do not defeat remedial reexamination triggered by correcting 1953 under § 5109A(b) | VA: Finality of later decisions and separate CUE denials preclude revisiting those decisions during implementation | Court: Finality of separate CUE rulings does not automatically bar the remedial inquiry required by § 5109A(b); the Board must still determine impact of the corrected 1953 rating |
| Applicability of Reizenstein precedent (staged retrospective ratings) to bar regulation’s application here | Pirkl: Reizenstein is distinguishable; that case involved a single retrospective staged rating, not a prospective reduction from an existing continuing 100% rating | VA: Reizenstein supports limiting § 3.343 to situations where veteran actually received ongoing 100% benefits; not applicable here because Pirkl did not receive 100% benefits in 1956 | Court: Reizenstein is distinguishable and does not undermine application of the reduction regulation to this case |
Key Cases Cited
- Pirkl v. Shinseki, 718 F.3d 1379 (Fed. Cir. 2013) (earlier panel opinion remanding for remedial inquiry under § 5109A(b))
- Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009) (interpreting scope of reduction regulation in the retrospective staged-rating context)
- Hamer v. Shinseki, 24 Vet. App. 58 (Vet. App. 2010) (noting that a Board CUE finding carries the same rights and constraints as the initial rating)