Pirkl v. Wilkie
Opinion
*1373
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
,
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
,
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
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
*1374
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
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
,
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
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
*1375 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
,
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
,
2
In
Pirkl I
, we vacated the Veterans Court's decision and remanded the case for further proceedings. We noted the Veterans
*1376
Court's "factual determination that the subsequent reductions in 1956 and 1966 of Mr. Pirkl's disability rating stand as independent decisions."
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."
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).
Still more particularly, we emphasized the role of the regulation governing reductions of 100% disability ratings.
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
,
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
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 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
*1378
in effect at the time."
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
,
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. (6 Wall.) 94, 99,
We see no basis for reading section 5109A(b) as de-parting from that basic standard for a corrective remedy when the *1379 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.
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
,
The government has no textual argument for a contrary conclusion. Rather, it points to this court's decision in
Reizenstein v. Shinseki
,
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.
That ruling does not apply here. In the "retrospective staged rating" situation that defined "the narrow issue" decided in
Reizenstein
,
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.
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 re-assessments 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 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 *1381 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."
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
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 note that, in this matter, the *1382 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
The regulation was amended in 1956, and it was amended and recodified as
(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 particularly 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.
The provision governing revisions based on CUE in Board decisions contains materially identical language.
See
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.
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.
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
,
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 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.
,
Reference
- Full Case Name
- Regina M. PIRKL, Claimant-Appellant v. Robert WILKIE, Secretary of Veterans Affairs, Respondent-Appellee
- Cited By
- 9 cases
- Status
- Published