Wednesday, June 12, 2013

Pirkl v. Shinseki

Pirkl v. Shinseki, 718 F.3d 1379 (2013)
Finding clear and unmistakable error (CUE) in one decision does not necessarily void subsequent decisions, but may require the RO to consider the effects of the CUE decision on subsequent decisions. In this case, the Board found CUE in a 1953 decision, but did not find that the veteran was entitled to a 100% rating for the entire period of time between that decision and 1988 because there were several post-1953 decisions. The CAVC affirmed the Board’s decision, finding that the subsequent decisions were not based on the 1953 decision.

The Federal Circuit remanded, holding that a finding of CUE in the 1953 decision “changed the factual and legal background against which subsequent reductions were made, and that the Board failed to consider the effect of this change in implementing its finding of CUE.” *10. Because the finding of CUE in the 1953 decision resulted in the veteran’s disability rating being reset to the 100% rate, the Federal Circuit determined that any subsequent reductions were from a 100% rating – and VA was required to follow the rules regarding reducing a total rating in effect at the time. The Federal Circuit remanded the case for the RO to consider, in the first instance, whether the subsequent rating reductions were proper in light of the finding of CUE in the 1953 decision.

No comments:

Post a Comment