Pirkl v. Wilkie

Summary

In *Pirkl v. Wilkie*, the Federal Circuit held that a finding of clear and unmistakable error (CUE) in a 1953 VA decision reducing a veteran's disability rating from 100% to 70% required the Board of Veterans' Appeals to consider, as part of the remedy under 38 U.S.C. § 5109A(b), whether subsequent rating reductions in 1956 and 1966 would have been proper had the 100% rating continued, including application of the regulation governing reductions of total disability ratings (38 C.F.R. § 3.170 and its successor, § 3.343). The court rejected the government's argument that the regulation only applies when a claimant is actually receiving 100% benefits, ruling that the remedial statute demands restoration to the position the veteran would have occupied but for the error, which may require revisiting later final decisions that were premised on the erroneous lower rating. This case clarifies the scope of corrective relief for CUE, emphasizing that the VA must examine the legal and factual basis of subsequent decisions to determine whether the veteran would have retained the total disability rating under the applicable regulations.

Holdings

1. Yes, under 38 U.S.C. § 5109A(b), the remedy for a CUE finding requires the Board to determine what ratings the claimant would have had if the error had not been made, which necessitates considering the impact of the corrected rating on later decisions.
2. Yes, the regulation applies because the CUE correction means Mr. Pirkl is deemed to have had a total disability rating at the time of the later reductions. The plain language of the regulation covers reductions of total disability ratings, and the fact that he was not actually receiving 100% benefits due to the VA's error does not make the regulation inapplicable.

Questions Presented

1. Whether the Board's implementation of the CUE finding in the 1953 rating decision required it to consider whether the 1956 and 1966 rating reductions remain proper in light of the corrected 100% rating.
2. Whether the regulation governing reductions of total disability ratings, 38 C.F.R. § 3.170 (1949) and § 3.343, applies to the 1956 and 1966 rating decisions when the veteran is deemed to have a 100% rating due to the CUE correction.

Disposition

reversed_and_remanded