Siples v. Collins

Case: 22-1528    Document: 51     Page: 1   Filed: 02/07/2025




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                   CLINTON SIPLES,
                   Claimant-Appellant

                             v.

       DOUGLAS A. COLLINS, SECRETARY OF
             VETERANS AFFAIRS,
               Respondent-Appellee
              ______________________

                        2022-1528
                  ______________________

    Appeal from the United States Court of Appeals for
 Veterans Claims in No. 19-7957, Judge Joseph L. Toth.
                 ______________________

                Decided: February 7, 2025
                 ______________________

    KENNETH DOJAQUEZ, Carpenter Chartered, Topeka,
 KS, argued for claimant-appellant.

     BORISLAV KUSHNIR, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also represented by BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD,
 PATRICIA M. MCCARTHY; JONATHAN KRISCH, Y. KEN LEE,
 Office of General Counsel, United States Department of
 Veterans Affairs, Washington, DC.
                   ______________________
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 2                                           SIPLES v. COLLINS




     Before CHEN, BRYSON, and STOLL, Circuit Judges.
 CHEN, Circuit Judge.
     Clinton Siples is a veteran of the United States Air
 Force (Air Force) who was granted service connection for
 bilateral shoulder subluxation by a Regional Office (RO) of
 the United States Department of Veterans Affairs (VA).
 After that decision became final, the United States Court
 of Appeals for Veterans Claims (Veterans Court) decided
 Burton v. Shinseki, 

 (2011) (Burton), which
 deferred to the Secretary of Veterans Affairs’ interpretation of 

 as not limited to cases of arthritis.
 Mr. Siples then filed a motion alleging clear and unmistakable error (CUE) in the RO’s rating decision, contending
 that the newly interpreted § 4.59 would have required the
 VA to assign him a higher rating for his shoulder disability,
 which was not based on arthritis. The Veterans Court affirmed the Board of Veterans’ Appeals’ (Board) denial of
 Mr. Siples’s CUE motion on the basis that, at the time of
 his rating decision, § 4.59 was not undebatably understood
 to apply to cases other than arthritis, and thus there was
 no error of the type required for CUE.              Siples v.
 McDonough, No. 19-7957, 

 (Vet. App.
 Dec. 15, 2021) (Decision). Mr. Siples appeals. For the reasons explained below, we affirm.
                        BACKGROUND
                        I. Section 4.59
     We begin with a history of 

. Section
 4.59, unamended since its adoption in 1964, is titled “Painful motion” and provides in full:
     With any form of arthritis, painful motion is an important factor of disability, the facial expression,
     wincing, etc., on pressure or manipulation, should
     be carefully noted and definitely related to affected
     joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused
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 SIPLES v. COLLINS                                            3



     by arthritis of the spine. The intent of the schedule
     is to recognize painful motion with joint or periarticular pathology as productive of disability. It is
     the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as
     entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or
     crepitation within the joint structures should be
     noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The
     joints involved should be tested for pain on both active and passive motion, in weight-bearing and
     nonweight-bearing and, if possible, with the range
     of the opposite undamaged joint.
 

 (emphases added); see 

,
 6725 (May 22, 1964). Prior to the Veterans Court’s 2011
 decision in Burton, non-precedential decisions of the Veterans Court were inconsistent as to whether § 4.59 applied to
 non-arthritis claims. Compare, e.g., Denk v. West, 

, 

, at *4 (1999) (unpublished table
 decision) (“Because § 4.59 applies to arthritis and because
 the appellant has not been diagnosed as having arthritis,
 that regulation is not applicable to this claim.” (citation
 omitted)), with Abbey v. Principi, 

, 

, at *1–2 (2001) (unpublished table decision) (remanding for the Board to address § 4.59 in a non-arthritis
 claim). A pair of precedential Veterans Court decisions had
 also applied § 4.59 to arthritis-based claims, though without formally interpreting the regulation as limited to that
 context. See Ferguson v. Derwinski, 

 (1991); Lichtenfels v. Derwinski, 

 (1991).
     In Burton, a veteran argued that § 4.59 was applicable
 to rating his shoulder pain not based on arthritis. The Secretary at first disagreed and argued that § 4.59 was applicable to only arthritis-based claims. See Burton, 25 Vet.
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 4                                            SIPLES v. COLLINS




 App. at 3. A single-judge memorandum decision of the Veterans Court agreed with the Secretary. See id. at 2–3. The
 Veterans Court subsequently granted the veteran’s motion
 for a panel decision and withdrew the memorandum decision in order to “clarify the law as to whether § 4.59 is applicable only to claims involving arthritis.” Id. at 3. At that
 point, the Secretary filed a supplemental brief that reversed course and conceded that § 4.59 may apply in cases
 other than arthritis, citing the earlier reflection of that position in VA Fast Letter 04-22 (Oct. 1, 2004). 1 Id.
     In the panel decision, the Veterans Court recognized
 that § 4.59 begins by stating that “[w]ith any form of arthritis, painful motion is an important factor of disability,”
 and that § 4.59 mentions arthritis again in the third sentence. Burton, 25 Vet. App. at 3–4 (quoting 

). On the other hand, the Veterans Court explained
 that “the majority of the regulation provides guidance for
 noting, evaluating, and rating joint pain, and that guidance
 is devoid of any requirement that the pain be arthritis related.” 

. Looking also to the title of the regulation
 as a tool of interpretation, the court observed that the title—“Painful motion”—“implies no limitation to arthritis
 claims,” in contrast to the title of a neighboring section, 

 (“Arthritis due to strain”), which deals exclusively with arthritis. 

 Accordingly, the Veterans Court
 deferred to the Secretary’s interpretation of § 4.59 as not
 limited to arthritis claims, finding it reasonable and “not
 inconsistent with the regulation or otherwise plainly erroneous.” Id. at 5; see also id. at 3. This court entered a judgment of affirmance without opinion pursuant to Federal
 Circuit Rule 36. See Burton v. Shinseki, 

 (Fed. Cir. 2012) (per curiam).




     1   The Fast Letter was issued a little over two months
 after the RO’s decision in Mr. Siples’s case.
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 SIPLES v. COLLINS                                           5



                     II. Mr. Siples’s Appeal
     Mr. Siples served honorably in the Air Force from 1978
 to 2003. After his discharge from the Air Force, Mr. Siples
 sought VA disability benefits for a history of dislocations
 and subluxations in both of his shoulders. In July 2004,
 the RO granted service connection and assigned him a 10%
 rating for bilateral shoulder subluxation, noting that
 Mr. Siples’s “range of motion was limited by pain which is
 the major functional impact.” J.A. 65; see also id. at 66.
 That rating decision became final after Mr. Siples did not
 appeal.
     In June 2017, Mr. Siples filed a motion to revise the
 2004 rating decision due to alleged CUE. He argued that
 § 4.59 required that “functional loss due to painful motion . . . be rated at least the minimum compensable rating,” which he contended entitled him to a 20% rating for
 each shoulder. J.A. 26 (emphasis omitted). The RO and
 the Board denied the CUE motion. The Board observed
 that at the time of Mr. Siples’s original rating decision,
 which was prior to Burton, the “VA only applied 

 in cases of arthritis,” and Mr. Siples’s x-rays were
 negative for arthritis. J.A. 36–37.
      Mr. Siples appealed to the Veterans Court, which, in
 relevant part, affirmed the Board by a single-judge memorandum decision. Quoting our decision in George v.
 McDonough, 

 (Fed. Cir. 2021) (George
 I), aff’d, 

 (2022) (George II), the Veterans
 Court applied the standard that “CUE must be analyzed
 based on the law as it was understood at the time of the
 original decision and cannot arise from a subsequent
 change in the law or interpretation thereof to attack a final
 VA decision.” Decision, 

, at *2. The Veterans Court began its analysis by noting that “Burton
 seems to be the first reported case in which a veteran argued that § 4.59 applied outside the arthritis context.” Id.
 Like the Burton court, the Veterans Court in Mr. Siples’s
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 6                                            SIPLES v. COLLINS




 case highlighted that § 4.59 began with a sentence seemingly limited to the arthritis context. Id. It then reasoned
 that the Burton saga itself—including the opposite conclusions reached by the single-judge and panel decisions, and
 the Secretary’s shift in position during the proceeding—
 supported the conclusion that § 4.59 was not “undebatably
 understood to apply to non-arthritis claims in 2004.” Id. at
 *2–3.
     Finally, the Veterans Court discussed VA General
 Counsel Precedent Opinion 9-98 but found that it did not
 change the assessment. Id. at *3; see VA Op. Gen. Counsel
 Prec. 9-98, 

 (Aug. 14, 1998) (G.C. Prec.
 9-98). The subject of G.C. Prec. 9-98 is “Multiple Ratings
 for Musculoskeletal Disability and Applicability of
 

, 4.45, and 4.59.” The Veterans Court explained that, although the opinion could “be read to indicate that all three provisions apply when rating ‘other
 musculoskeletal disabilities,’” that reading is “by no means
 compelled.” Decision, 

, at *3. The Veterans Court ultimately “discern[ed] no error in the Board’s
 conclusion that the understanding of § 4.59 in July 2004
 did not undebatably compel the RO to assign additional
 shoulder 20% ratings based on painful motion.” Id.
    Mr. Siples appealed to this court. We have jurisdiction
 under 

.
                          DISCUSSION
      Our jurisdiction to review decisions of the Veterans
 Court is limited by statute. George I, 

. We
 may review “the validity of a decision of the [Veterans]
 Court on a rule of law or of any statute or regulation . . . or
 any interpretation thereof (other than a determination as
 to a factual matter) that was relied on by” the Veterans
 Court. 

(a). In doing so, we “shall decide
 all relevant questions of law.” 

 § 7292(d)(1). We review
 assertions of legal error in a Veterans Court decision without deference. George I, 

. But we “may
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 SIPLES v. COLLINS                                           7



 not review (A) a challenge to a factual determination, or
 (B) a challenge to a law or regulation as applied to the facts
 of a particular case,” except “to the extent that an appeal . . . presents a constitutional issue.”      

(d)(2).
                               I.
      By statute, a veteran may seek revision of a final decision of the RO or the Board “on the grounds of clear and
 unmistakable error.” 38 U.S.C. § 5109A (the RO); id.
 § 7111 (the Board). CUE is a “very specific and rare kind
 of error.” George II, 

 (quoting 

(a)); 

(a)(1)(i). 2 Though the statutes do not define CUE, the regulations and case law reflect certain settled principles that Congress intended to
 capture when codifying CUE. See George II, 

 (holding that Congress “codified and adopted the
 [CUE] doctrine as it had developed under prior [VA] practice” (cleaned up)).
     CUE requires a party to establish three elements.
 First, “[e]ither the correct facts, as they were known at the
 time, were not before the adjudicator or the statutory or
 regulatory provisions extant at the time were incorrectly
 applied.” Willsey v. Peake, 

 (Fed. Cir.
 2008) (citation omitted). Second, the error must be outcome determinative and “undebatable,” 

 (citation omitted), such that “reasonable minds could not differ,”
 

(a)(1)(i); see Willsey, 

,



     2    

 applies to decisions of the
 Board, while 

 applies to decisions of the
 RO. The language of the two regulations is virtually identical, due in part to an amendment to § 3.105 in 2019 to
 conform that regulation to § 20.1403. See George I, 

 n.5; Perciavalle v. McDonough, 

,
 1379 n.4 (Fed. Cir. 2023).
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 8                                            SIPLES v. COLLINS




 1373. Last, “[a] determination that there was CUE must
 be based on the record and the law that existed at the time
 of the prior adjudication in question.” Willsey, 

. Crucial to this appeal, “a legal-based CUE requires a misapplication of the law as it was understood at
 that time, and cannot arise from a subsequent change in
 interpretation of law by the agency or judiciary.” George I,
 

; see 

(a)(1), (a)(1)(iv).
                              II.
      Mr. Siples acknowledges that a VA decision cannot be
 collaterally attacked for CUE based on a subsequent
 change in law or interpretation thereof. But, he argues,
 “the first time a regulation is interpreted by an authority
 that binds the VA”—such as the Veterans Court’s decision
 in Burton with respect to § 4.59—“that interpretation controls how the law should have been applied in all prior [RO]
 decisions.” Appellant’s Br. 16 (emphases added); see also,
 e.g., id. at 7. Thus, Mr. Siples asserts the Veterans Court
 erred in this case by not applying Burton’s interpretation
 of § 4.59 when assessing CUE in the RO’s 2004 decision.
 The government responds in the first instance that Burton
 changed the interpretation of § 4.59, citing the Veterans
 Court’s earlier decisions in Lichtenfels and Ferguson as
 support. See Appellee’s Br. 13. The government then adds
 that regardless of whether Burton is characterized as a
 “change in interpretation” or a “first interpretation,” it may
 not be relied on to establish CUE because CUE must be
 based on the body of law that existed at the time of the
 original decision. Id. at 13–18. We agree with the government’s latter point and need not decide whether Burton
 represents a change in interpretation or an initial interpretation, for neither may be the basis of CUE.
     Mr. Siples’s argument cannot be squared with the precedent of both this court and the Supreme Court. In
 George I, we addressed the question of whether a VA decision applying a regulation that is later invalidated can give
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 SIPLES v. COLLINS                                         9



 rise to CUE. 

. We held that it could not
 because “CUE must be analyzed based on the law as it was
 understood at the time of the original decision and cannot
 arise from a subsequent change in the law or interpretation
 thereof to attack a final VA decision.” 

. The
 Supreme Court affirmed in George II. The Court explained
 that “authorities dating back to 1928 confirm that a determination that there was ‘clear and unmistakable error’
 must be based on the record and the law that existed at the
 time of the prior VA decision,” and thus CUE could not encompass a change in law or a change in interpretation of
 law. 

 (cleaned up). In other words, the historical basis for the change-in-interpretation exception to
 CUE is that CUE must be based on the body of law extant
 at the time of the VA’s decision. See also 

 (“[A] subsequent legal change could not [constitute CUE], because
 only the law that existed at the time of the prior adjudication can be considered in this posture.” (cleaned up) (emphasis added)); 

(a)(1) (“Final decisions
 will be accepted by VA as correct with respect to the evidentiary record and the law that existed at the time of the
 decision, in the absence of clear and unmistakable error.”
 (emphasis added)).
     Even more recently than George II, we addressed the
 correct standard for CUE in Perciavalle. 3 There, we reviewed a splintered decision of the en banc Veterans Court.
 In relevant part, we assessed whether the concurring opinion of a Veterans Court judge rested on a legally erroneous
 understanding of CUE. See Perciavalle, 

. The concurrence had reasoned that CUE claims
 were barred where the alleged legal error “has yet to be
 identified as erroneous by a court decision or VA



     3   In November 2023, we ordered the parties to address by supplemental briefing this court’s decision in Perciavalle. See ECF Nos. 32–34.
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 10                                           SIPLES v. COLLINS




 publication,” such as a General Counsel precedential decision. 

 (citation omitted). We held that view to
 be too restrictive because “[i]t is clear from the Supreme
 Court’s recent decision in George that the correct CUE inquiry is simply whether the original decision was a ‘correct
 application of a binding regulation’ or law, regardless of
 later changes in the law or later decisions by the agency or
 a court.” 

 (emphasis added) (quoting George II, 

). In other words, where the regulation is sufficiently
 clear on its face, “the language of the regulation itself can
 establish the existence of CUE.” Id.; see, e.g., Glover v.
 West, 

 (Fed. Cir. 1999) (evaluating CUE
 based on the plain language of a regulation); Groves v.
 Peake, 

, 1309–10 (Fed. Cir. 2008) (same).
 Though Perciavalle addressed a different question than the
 one now before us, its logic and conclusion based on the Supreme Court’s decision in George II are equally applicable
 here: CUE must be based on the law at the time, “regardless of . . . later decisions by the agency or a court.” Perciavalle, 

; see George II, 

.
      Additionally, we note that the Veterans Court has already concluded that neither a first nor a changed interpretation may be relied on to establish CUE, including in a
 decision that was issued just prior to Congress’s codification of CUE and that the Supreme Court relied on in
 George II. See 

 (citing Berger v. Brown, 

 (1997)). In Berger, the Veterans Court
 rejected the notion that its initial interpretation of a statute and implementing regulation in 1993 could “be the basis of an adjudicative error in [the RO’s] 1969” decision, as
 “a simple recitation of the time sequence [should] make
 that clear.” 

. The Veterans Court “specifically h[e]ld that opinions from [the Veterans] Court that
 formulate new interpretations of the law subsequent to an
 RO decision cannot be the basis of a valid CUE claim,” because CUE is concerned with only the body of law that existed at the time of the decision. Id.; see also Lamb v.
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 SIPLES v. COLLINS                                         11



 Peake, 

, 234–35 (2008). Our own court, too,
 recently arrived at the same conclusion, albeit in a non-precedential decision. See Steele v. McDonough, 

, 881 (Fed. Cir. 2021) (“[O]ur precedent does not
 support the view that a new judicial pronouncement can
 retroactively apply to final decisions of the VA. Consequently, we need not decide whether [a later decision] was
 an authoritative statement or a change in interpretation
 because neither can form the basis for CUE.” (citation omitted)).
     Mr. Siples retorts that “the first, binding interpretation of the regulation tells us what the law has always required.” Appellant’s Reply Br. 4 (emphasis added). But
 Burton did not purport to offer such a definitive interpretation of § 4.59. Burton merely deferred to the Secretary’s
 interpretation of the regulation, as reflected in an October
 2004 Fast Letter, which itself post-dated the RO’s July
 2004 decision. See 25 Vet. App. at 3–5; see, e.g., id. at 5
 (“[The Secretary’s interpretation] is a reasonable interpretation from examining the regulation as a whole . . . .”).
 Even if Mr. Siples were correct, general principles of finality prohibit a new judicial pronouncement like Burton’s
 from being applied retroactively to collaterally attack a final RO decision on the basis of CUE. See George I, 991 F.3d
 at 1236–37; George II, 

. Mr. Siples argues
 that his position “does not mean that he is asking for a retroactive application of any law.” Appellant’s Suppl. Br. 6.
 Yet we fail to see how Mr. Siples is asking for anything but.
      Because CUE must be based on the law as understood
 at the time of the RO’s July 2004 decision, Mr. Siples’s argument relying on Burton’s later-in-time interpretation of
 § 4.59 fails regardless of whether Burton represents an initial or a changed interpretation.
                             III.
    Our inquiry is not yet over. We must next address
 whether the Veterans Court otherwise applied the correct
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 12                                          SIPLES v. COLLINS




 standard for assessing a legal-based CUE, which turns on
 whether the RO’s 2004 decision was undebatably erroneous based on § 4.59 as understood based on the law at the
 time of the decision. See Willsey, 

. We
 agree with the Veterans Court that the understanding of
 § 4.59 in July 2004 did not undebatably require the RO to
 assign a higher rating to Mr. Siples’s non-arthritic shoulder disability.
     As mentioned above, although a later-in-time interpretation of a regulation cannot itself establish CUE, a regulation’s meaning may be so clear on its face as to compel
 the existence of CUE in a VA decision that was contrary to
 that meaning. See Perciavalle, 

. To interpret a regulation, we look at its plain language and consider the terms in accordance with their common meaning.
 Lane v. Principi, 

 (Fed. Cir. 2003). The
 Veterans Court aptly recognized that although § 4.59
 states in general terms that “painful motion” is “productive
 of disability” and an “actually painful” joint should receive
 “at least the minimum compensable rating for the joint,”
 the regulation prefaced these statements with the pronouncement—in its opening sentence—that “[w]ith any
 form of arthritis, painful motion is an important factor of
 disability.” 

 (emphasis added); see Decision, 

, at *2. The regulation mentions
 arthritis again in the third sentence. See § 4.59. Of course,
 “the plain meaning that we seek to discern is the plain
 meaning of the whole statute or regulation, not of isolated
 sentences.” Boeing Co. v. Sec’y of Air Force, 

 (Fed. Cir. 2020) (cleaned up). But given the regulation’s express references to arthritis, we cannot say that
 the plain language of § 4.59 as a whole clearly applies to
 cases beyond those involving arthritic painful motion.
     After the RO’s July 2004 decision, the Secretary evidently determined that § 4.59 should not be limited to arthritis. See Burton, 

. We emphasize
 that we are not called upon in this case to conclusively
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 SIPLES v. COLLINS                                           13



 determine the correct interpretation of § 4.59. Nor, for that
 matter, was the Burton court, which simply deferred to the
 Secretary’s interpretation as reasonable. Rather, our decision is limited to the conclusion that § 4.59, on its face, did
 not undebatably apply to non-arthritic conditions. 4
     The Veterans Court in this case also correctly noted the
 apparent lack of a settled interpretation of § 4.59 prior to
 Burton. See Decision, 

, at *3. 5 As mentioned above, unreported decisions of the Veterans Court
 prior to or around the time of the RO’s July 2004 decision
 diverged on the applicability of § 4.59 to non-arthritis
 claims. See supra Background Section I. And the two reported Veterans Court cases applying § 4.59 to arthritis-based claims suggest that the regulation was understood
 as being so limited. See Ferguson, 

;
 Lichtenfels, 

. Furthermore, the Burton
 court itself noted the previous lack of clarity regarding
 § 4.59, and that lack of clarity was the reason the Veterans
 Court undertook the case by a panel decision. See 

. 6




     4   For the avoidance of doubt, our decision today does
 not disturb or cast doubt upon the Veterans Court’s decision deferring to the Secretary’s interpretation in Burton
 and that court’s directive that, going forward, the VA address the applicability of § 4.59 in non-arthritis claims. See
 

.
     5   At oral argument, Mr. Siples agreed that the understanding of § 4.59 was unsettled in 2004. See Oral Arg.
 at     3:32–55       (available       at     https://oralarguments.cafc.uscourts.gov/default.aspx?fl=22-1528_1107202
 4.mp3).
     6   While CUE is evaluated without regard to a later
 decision’s impact on the law, see Perciavalle, 

, the CUE inquiry does not preclude reference to a
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 14                                           SIPLES v. COLLINS




     Finally, we agree with the Veterans Court that G.C.
 Prec. 9-98 does not change the assessment. See Decision,
 

, at *3. This precedential opinion of the
 VA General Counsel addressed several questions that the
 opinion characterized as “pertain[ing] to the applicability
 of 

, 4.45, and 4.59 in rating arthritis and
 other musculoskeletal disabilities.” G.C. Prec. 9-98, 

, at *1 (emphasis added). However, that
 passing statement did not necessarily mean that each of
 the three identified regulations applied to “other musculoskeletal disabilities.” 

 The questions presented and answered by the opinion did not concern whether § 4.59
 applied to non-arthritis claims, and the opinion did not
 purport to provide such an interpretation of § 4.59. See id.
 at *1, *4. Indeed, the opinion repeatedly discusses § 4.59
 in the context of arthritis and diagnostic codes related to
 arthritis. See, e.g., id. at *2 (“Given the findings of osteoarthritis (another term for degenerative arthritis), the
 availability of a separate rating under DC 5003 in light of
 sections 4.40, 4.45, and 4.59 must be considered. Even if
 the claimant technically has full range of motion but the
 motion is inhibited by pain, a compensable rating for arthritis under DC 5003 and section 4.59 would be available.”). At best, G.C. Prec. 9-98 contributes to the lack of
 clarity regarding the applicability of § 4.59 to non-arthritis
 claims at the time of the RO’s July 2004 decision.
      In short, CUE must be based on the law at the time of
 the decision. And at the time of the RO’s decision in Mr. Siples’s case, § 4.59 was not undebatably understood as applying to cases other than arthritis, nor was it so clear on
 its face as to compel applicability to non-arthritis claims.




 later decision to the extent it is informative of the state of
 the law at the relevant time, as Burton is here.
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 SIPLES v. COLLINS                                     15



                       CONCLUSION
    We have considered Mr. Siples’s remaining arguments
 and find them unpersuasive. For the reasons explained
 above, we affirm.
                       AFFIRMED