United States Court of Appeals 

for the Federal Circuit ______________________ 

REGINA M. PIRKL,

Claimant-Appellant

v.

ROBERT WILKIE, SECRETARY OF VETERANS 

AFFAIRS,

Respondent-Appellee

______________________ 

2017-1916

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 14-4303, Senior Judge Lawrence 

B. Hagel.

______________________ 

Decided: October 17, 2018 

______________________ 

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. 

 ______________________ 
2 PIRKL v. WILKIE

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 serviceconnected 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 
PIRKL v. WILKIE 3

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’ 
4 PIRKL v. WILKIE

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. Ex-
PIRKL v. WILKIE 5

amination 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

 

1 The regulation was amended in 1956, and it was 

amended and recodified as 38 C.F.R. § 3.343 in 1966. The 

parties agree that § 3.170 was in force as of the September 1953 and December 1956 rating decisions and § 3.343 

was in force as of the April 1966 rating decision. See Pirkl 

Br. 21–22; VA Br. 16. The current version states:

(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 particu-
6 PIRKL v. WILKIE

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, 718 F.3d at 1381.

 

larly 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. 
PIRKL v. WILKIE 7

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, 

718 F.3d at 1381–82.

2 

In Pirkl I, we vacated the Veterans Court’s decision 

and remanded the case for further proceedings. We noted 

the Veterans Court’s “factual determination that the 

subsequent reductions in 1956 and 1966 of Mr. Pirkl’s 

disability rating stand as independent decisions.” 718 

F.3d at 1384. And we rejected “Mrs. Pirkl’s argument 

that the Board’s finding of CUE in the 1953 decision 

initiated a ‘chain reaction’ that necessarily rendered those 

later decisions ‘null and void.’” Id. (emphasis added). But 

we held that the 1956 and 1966 decisions did not, simply 

because of their finality, block including post-1956 and 

post-1966 relief as part of a remedy for the 1953 CUE. 

“[A] finding of CUE may, under some circumstances, 

require a later decision to be revisited.” Id. What was 
8 PIRKL v. WILKIE

needed was an inquiry into whether and how correction of 

the 1953 error altered the bases for, and ultimate conclusions of, the 1956 and 1966 decisions. Id. at 1384–85.

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.” 

Id. at 1384. We three times quoted the command of 38 

U.S.C. § 5109A(b): “[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.” See 718 F.3d at 1384–85.2

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). Id. at 1384. Yet the Board “failed to consider 

the effect of this change in implementing its finding of 

CUE.” Id. The question, in short, is whether and how the 

1956 decision would have been different if the VA had 

started with a 100% disability rating, not the 70% disability rating that it actually (but, in retrospect, mistakenly) 

started with. But the Board did not ask that question.

 

2 The provision governing revisions based on CUE 

in Board decisions contains materially identical language. 

See 38 U.S.C. § 7111(b).
PIRKL v. WILKIE 9

Still more particularly, we emphasized the role of the 

regulation governing reductions of 100% disability ratings. 38 C.F.R. § 3.170 (1949); 38 C.F.R. § 3.343. Immediately after noting that the CUE finding “effected a 

change in the legal context applicable to those later 

decisions,” we explained that “the Board failed to consider 

the effect of the applicability of 38 C.F.R. § 3.170 (1949) or 

its successor regulations in the 1956 and 1966 decisions.” 

Pirkl I, 718 F.3d at 1384. We added: “we find no support 

in the record that establishes the 1956 rating decision 

took into account the ‘material improvement’ standard” of 

the regulation. Id. Again citing 38 U.S.C. § 5109A(b), we 

held: “The CUE finding with respect to the 1953 decision 

thus requires the Board to revisit these later findings and 

determine the extent to which the CUE finding changes 

the legal or factual basis of the later evaluations.” Id. We 

vacated the Veterans Court’s decision and ordered a 

remand so that the Board “may 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 in effect at the time.” Id. at 

1385.

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, 583 F.3d 1331 

(Fed. Cir. 2009), to conclude that the regulation applies 

only when the VA considers reducing a rating at a time 

when the claimant was actually receiving benefits under a 
10 PIRKL v. WILKIE

100% disability rating, not when a claimant was, like Mr. 

Pirkl, legally entitled to benefits under a 100% disability 

rating but was not receiving them because of clear and 

unmistakable VA error. The Board held that the regulation did not have to be applied in the 1956 and 1966 

decisions because Mr. Pirkl “was never in receipt of a 100 

percent rating during the time period being currently 

examined on appeal.” J.A. 138. Accordingly, the Board 

considered it “unnecessary to conduct an analysis of 

whether the ‘material improvement’ standard outlined in 

those regulations was met at the time of the rating reductions in the December 1956 and April 1966 rating decisions.” Id.

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 

38 U.S.C. § 7292. As the parties properly agree, the 

questions presented are legal ones concerning the meaning of a regulation and the scope of the Board’s remedial 

obligations under Title 38 and this court’s Pirkl I decision.

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 
PIRKL v. WILKIE 11

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 in effect at the time.” 718 F.3d at 1385. That 

statement followed our explanation that “[t]he CUE 

finding with respect to the 1953 decision thus requires the 

Board to revisit these later findings and determine the 

extent to which the CUE finding changes the legal or 

factual basis of the later evaluations.” Id. at 1384 (emphasis added). And we specifically explained that the 

2006 revision meant that Mr. Pirkl must be treated as 

having come into the 1956 VA re-assessment of his disability with a 100% rating, not the 70% rating the 1953 

decision had mistakenly left him with: the 1956 reduction 

“became an effective reduction from a 100% total disability 

rating.” Id. (emphasis added). As a result, the question 

arose, and had to be considered on remand, whether the 

regulation on reductions of 100% ratings should have 

been applied to Mr. Pirkl in 1956 and 1966, with the 

answer to that question affecting what role the 1956 and 

1966 rating decisions could properly play in determining 
12 PIRKL v. WILKIE

how long past 1953 he would have kept his 100% rating. 

Id. at 1384–85.3

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, 24 Vet. App. 58, 61 (2010) (noting 

that, under section 5109A(b), a Board decision finding 

CUE in an earlier decision “carries with it the same 

rights, privileges, and constraints that the initial disability rating . . . would have”), aff’d, 438 F. App’x 897 (Fed. 

Cir. 2011).

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. 94, 

99 (1867); see Missouri v. Jenkins, 515 U.S. 70, 87 (1995)

(noting that “all remedies” are designed “to restore the 

victims of [wrongful] conduct to the position they would 

have occupied in the absence of such conduct”); see also, 

 

3 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.
PIRKL v. WILKIE 13

e.g., United States v. Virginia, 518 U.S. 515, 547 (1996); 

Milliken v. Bradley, 433 U.S. 267, 280–81 (1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418–19 (1975)

(quoting Wicker, 73 U.S. at 99); Phelps Dodge Corp. v. 

NLRB, 313 U.S. 177, 187, 194 (1941); Kerr v. Nat’l Endowment for the Arts, 726 F.2d 730, 733 (Fed. Cir. 1984) 

(“[T]he basic purpose of a reinstatement or back pay order 

is ‘restoration of the situation, as nearly as possible, to 

that which would have obtained but for the [wrongful 

conduct].’” (quoting Phelps Dodge, 313 U.S. at 194)). 

We see no basis for reading section 5109A(b) as departing from that basic standard for a corrective remedy

when the 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. 38 

C.F.R. § 3.170 (1949); 38 C.F.R. § 3.343. The government

argues that the regulation did not cover Mr. Pirkl’s situation in 1956, even on the legally required assumption that 

the revised 1953 decision left him with a 100% rating 

after 1953. See VA Br. 16. We disagree.4

 

4 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. 
14 PIRKL v. WILKIE

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, 718 F.3d at 1384. Mr. Pirkl thus must be deemed to 

have had a “[t]otal disability rating[]” in 1956. 38 C.F.R. 

§ 3.170 (1949); see 38 C.F.R. § 3.343. Under the plain 

language of the regulation, that rating could “not be 

reduced” except in accordance with the regulation’s terms. 

38 C.F.R. § 3.170 (1949); see 38 C.F.R. § 3.343.

The government has no textual argument for a contrary conclusion. Rather, it points to this court’s decision

in Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009), 

and argues that Reizenstein’s reasoning should lead us to 

conclude that the regulation did not apply to Mr. Pirkl as 

of 1956. We reject the argument.

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. Id. at 1333. When Mr. 

Reizenstein argued to this court that the Board could not 

find a 30% disability after the period of 100% disability 

without complying with 38 C.F.R. § 3.343(a), we disagreed. Rather, we held, the VA had reasonably interpreted the regulation not to apply to the situation of a single 

VA decision simply finding that, in the past period at 

issue, the claimant’s disability varied in degree, with an 

intermediate portion of the period involving total disability. 583 F.3d at 1334–38.
PIRKL v. WILKIE 15

That ruling does not apply here. In the “retrospective 

staged rating” situation that defined “the narrow issue” 

decided in Reizenstein, id. at 1334, the regulatory language did not supply an unambiguous answer, whereas it 

does here. The language of “reduc[ing]” a “total disability 

rating[]” based on “improvement” unambiguously covers 

the ordinary situation, like the one at issue in this case, in 

which the question is whether the rating assigned in one 

rating decision (100% on an open-ended prospective basis) 

is to be superseded by a second, later rating decision (that 

assigns a lower rating). In contrast, the regulatory language does not clearly cover the single-VA-decision situation considered in Reizenstein. In that circumstance, the 

VA could resolve the textual uncertainty by reading the 

regulation as inapplicable to that situation, if that reading was otherwise reasonable, as this court concluded it 

was. Id. at 1337–38. Here, there is no textual uncertainty to resolve.

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. 

Id. at 1337 (emphases added). In the present case, as we 

explained in Pirkl I, the 2006 finding of CUE in the 1953 

rating decision means that Mr. Pirkl is deemed to have 

had a continuing 100% disability rating when the 1956 

process of VA re-assessment began. See 718 F.3d at 1384. 

As a result, the reduction adopted in 1956 was a prospective reduction of continuing benefits at the 100% level,

thus coming within Reizenstein’s own rationale for the 

regulation’s scope and outside Reizenstein’s rationale 

explaining why the Secretary’s interpretation to exclude 
16 PIRKL v. WILKIE

the staged-rating situation was reasonable. The fact that 

Mr. Pirkl was, because of the VA’s error, not actually 

receiving the 100%-rating benefit in 1956 no more makes 

the regulation inapplicable to the 1956 decision to reduce 

his rating than it disentitles him to retroactive relief 

under the regulation for the period from 1953 to 1956. In 

those years, Mr. Pirkl was not actually receiving the 

100%-rating benefits, because of the VA’s error, yet the 

Board awarded relief for that period, and the government 

does not dispute the propriety of that relief. 

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 reassessments 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 
PIRKL v. WILKIE 17

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 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.” 718 

F.3d at 1384 (citing 38 U.S.C. § 5109A(b)). We so ruled 

even while recognizing that Mr. Pirkl unsuccessfully 

sought separate CUE relief from the 1956 and 1966 

decisions, on grounds distinct from the propagation forward of the 1953 clear and unmistakable error as to Mr. 

Pirkl’s disability rating, and that the rejections of those 

separate CUE challenges had become final. Id. at 1381.

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 38 U.S.C. §§ 5108, 5109A, 7111. 

Nor can the government say that the later rating decisions break the chain of causation from the 1953 rating to 

later ratings: far from being either causally independent 
18 PIRKL v. WILKIE

or unforeseeable, the clearly and unmistakably wrong 

1953 rating had the effect under the benefits regime of 

setting the express premise for the 1956 decision, which 

in turn set the express premise for the 1966 decision.5

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 

 

5 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, 332 U.S. 

459, 462 (1947); Atchison, Topeka, & Santa Fe Ry. Co. v. 

Calhoun, 213 U.S. 1, 7 (1909); Milwaukee & Saint Paul 

Ry. Co. v. Kellogg, 94 U.S. 469, 475 (1877); see also Utah 

v. Strieff, 136 S. Ct. 2056, 2073 (2016) (Kagan, J., dissenting) (citing W. Page Keeton et al., Prosser and Keeton on 

the Law of Torts 312 (5th ed. 1984)). 

6 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 
PIRKL v. WILKIE 19

note that, in this matter, the 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

 

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., id.; 

Lowry Dev., L.L.C. v. Groves & Assocs. Ins., Inc., 690 F.3d 

382, 388 (5th Cir. 2012); Werner v. Carbo, 731 F.2d 204, 

208 (4th Cir. 1984); see also 18A Wright et al., supra, 

§ 4433.