Clinton Siples v. Douglas A. Collins, Secretary of Veterans Affairs

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
______________________
K ENNETH D OJAQUEZ, Carpenter Chartered, Topeka,
KS, argued for claimant-appellant.
BORISLAV K USHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. B OYNTON, ELIZABETH MARIE H OSFORD,
P ATRICIA M. MC CARTHY ; J ONATHAN K RISCH , Y. K EN L EE ,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
______________________
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SIPLES v. COLLINS 2
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, 25 Vet. App. 1 (2011) (Burton), which
deferred to the Secretary of Veterans Affairs’ interpreta-
tion of 38 C.F.R. § 4.59 as not limited to cases of arthritis.
Mr. Siples then filed a motion alleging clear and unmistak-
able 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 af-
firmed 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, 2021 WL 5919626 (Vet. App.
Dec. 15, 2021) (Decision). Mr. Siples appeals. For the rea-
sons explained below, we affirm.
BACKGROUND
I. Section 4.59
We begin with a history of 38 C.F.R. § 4.59. Section
4.59, unamended since its adoption in 1964, is titled “Pain-
ful motion” and provides in full:
With any form of arthritis, painful motion is an im-
portant 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 identi-
fication. 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 periar-
ticular pathology as productive of disability. It is
the intention to recognize actually painful, unsta-
ble, or malaligned joints, due to healed injury, as
entitled to at least the minimum compensable rat-
ing for the joint. Crepitation either in the soft tis-
sues such as the tendons or ligaments, or
crepitation within the joint structures should be
noted carefully as points of contact which are dis-
eased. Flexion elicits such manifestations. The
joints involved should be tested for pain on both ac-
tive and passive motion, in weight-bearing and
nonweight-bearing and, if possible, with the range
of the opposite undamaged joint.
38 C.F.R. § 4.59 (emphases added); see 29 Fed. Reg. 6718,
6725 (May 22, 1964). Prior to the Veterans Court’s 2011
decision in Burton, non-precedential decisions of the Veter-
ans Court were inconsistent as to whether § 4.59 applied to
non-arthritis claims. Compare, e.g., Denk v. West, 16 Vet.
App. 460, 1999 WL 446865, 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, 18 Vet. App. 13, 2001 WL
1181652, at *1–2 (2001) (unpublished table decision) (re-
manding 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 with-
out formally interpreting the regulation as limited to that
context. See Ferguson v. Derwinski, 1 Vet. App. 428, 430
(1991); Lichtenfels v. Derwinski, 1 Vet. App. 484, 488
(1991).
In Burton, a veteran argued that § 4.59 was applicable
to rating his shoulder pain not based on arthritis. The Sec-
retary at first disagreed and argued that § 4.59 was appli-
cable to only arthritis-based claims. See Burton, 25 Vet.
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SIPLES v. COLLINS 4
App. at 3. A single-judge memorandum decision of the Vet-
erans 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 deci-
sion in order to “clarify the law as to whether § 4.59 is ap-
plicable only to claims involving arthritis.” Id. at 3. At that
point, the Secretary filed a supplemental brief that re-
versed course and conceded that § 4.59 may apply in cases
other than arthritis, citing the earlier reflection of that po-
sition 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 ar-
thritis, painful motion is an important factor of disability,”
and that § 4.59 mentions arthritis again in the third sen-
tence. Burton, 25 Vet. App. at 3–4 (quoting 38 C.F.R.
§ 4.59). 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 re-
lated.” Id. at 4. Looking also to the title of the regulation
as a tool of interpretation, the court observed that the ti-
tle—“Painful motion”—“implies no limitation to arthritis
claims,” in contrast to the title of a neighboring section, 38
C.F.R. § 4.58 (“Arthritis due to strain”), which deals exclu-
sively with arthritis. Id. 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 erro-
neous.” Id. at 5; see also id. at 3. This court entered a judg-
ment of affirmance without opinion pursuant to Federal
Circuit Rule 36. See Burton v. Shinseki, 479 F. App’x 978
(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 mo-
tion . . . be rated at least the minimum compensable rat-
ing,” 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 38 C.F.R.
§ 4.59 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 memo-
randum decision. Quoting our decision in George v.
McDonough, 991 F.3d 1227, 1234 (Fed. Cir. 2021) (George
I), aff’d, 596 U.S. 740 (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, 2021 WL 5919626, at *2. The Vet-
erans Court began its analysis by noting that “Burton
seems to be the first reported case in which a veteran ar-
gued that § 4.59 applied outside the arthritis context.” Id.
Like the Burton court, the Veterans Court in Mr. Siples’s
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SIPLES v. COLLINS 6
case highlighted that § 4.59 began with a sentence seem-
ingly limited to the arthritis context. Id. It then reasoned
that the Burton saga itself—including the opposite conclu-
sions 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, 1998 WL 35275130 (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
38 C.F.R. §§ 4.40, 4.45, and 4.59.” The Veterans Court ex-
plained that, although the opinion could “be read to indi-
cate that all three provisions apply when rating ‘other
musculoskeletal disabilities,’” that reading is “by no means
compelled.” Decision, 2021 WL 5919626, at *3. The Veter-
ans 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 38 U.S.C. § 7292.
D ISCUSSION
Our jurisdiction to review decisions of the Veterans
Court is limited by statute. George I, 991 F.3d at 1233. 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. 38 U.S.C. § 7292(a). In doing so, we “shall decide
all relevant questions of law.” Id. § 7292(d)(1). We review
assertions of legal error in a Veterans Court decision with-
out deference. George I, 991 F.3d at 1233. 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 ap-
peal . . . presents a constitutional issue.” 38 U.S.C.
§ 7292(d)(2).
I.
By statute, a veteran may seek revision of a final deci-
sion 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, 596 U.S. at 747 (quoting 38 C.F.R.
§ 20.1403(a)); 38 C.F.R. § 3.105(a)(1)(i).2 Though the stat-
utes do not define CUE, the regulations and case law re-
flect certain settled principles that Congress intended to
capture when codifying CUE. See George II, 596 U.S. at
746 (holding that Congress “codified and adopted the
[CUE] doctrine as it had developed under prior [VA] prac-
tice” (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, 535 F.3d 1368, 1371 (Fed. Cir.
2008) (citation omitted). Second, the error must be out-
come determinative and “undebatable,” id. (citation omit-
ted), such that “reasonable minds could not differ,”
38 C.F.R. § 3.105(a)(1)(i); see Willsey, 535 F.3d at 1371,
2 38 C.F.R. § 20.1403 applies to decisions of the
Board, while 38 C.F.R. § 3.105 applies to decisions of the
RO. The language of the two regulations is virtually iden-
tical, due in part to an amendment to § 3.105 in 2019 to
conform that regulation to § 20.1403. See George I, 991
F.3d at 1234 n.5; Perciavalle v. McDonough, 74 F.4th 1374,
1379 n.4 (Fed. Cir. 2023).
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SIPLES v. COLLINS 8
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, 535 F.3d
at 1371. Crucial to this appeal, “a legal-based CUE re-
quires 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,
991 F.3d at 1229; see 38 C.F.R. § 3.105(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 con-
trols 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 govern-
ment’s latter point and need not decide whether Burton
represents a change in interpretation or an initial interpre-
tation, for neither may be the basis of CUE.
Mr. Siples’s argument cannot be squared with the prec-
edent of both this court and the Supreme Court. In
George I, we addressed the question of whether a VA deci-
sion applying a regulation that is later invalidated can give
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SIPLES v. COLLINS 9
rise to CUE. 991 F.3d at 1229. 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.” Id. at 1234. The
Supreme Court affirmed in George II. The Court explained
that “authorities dating back to 1928 confirm that a deter-
mination 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 en-
compass a change in law or a change in interpretation of
law. 596 U.S. at 747 (cleaned up). In other words, the his-
torical 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 id. (“[A] subse-
quent legal change could not [constitute CUE], because
only the law that existed at the time of the prior adjudica-
tion can be considered in this posture.” (cleaned up) (em-
phasis added)); 38 C.F.R. § 3.105(a)(1) (“Final decisions
will be accepted by VA as correct with respect to the evi-
dentiary 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 re-
viewed a splintered decision of the en banc Veterans Court.
In relevant part, we assessed whether the concurring opin-
ion of a Veterans Court judge rested on a legally erroneous
understanding of CUE. See Perciavalle, 74 F.4th at 1380,
1382. 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 ad-
dress by supplemental briefing this court’s decision in Per-
ciavalle. See ECF Nos. 32–34.
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SIPLES v. COLLINS 10
publication,” such as a General Counsel precedential deci-
sion. Id. at 1382 (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 in-
quiry 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.” Id. (emphasis added) (quoting George II, 596 U.S.
at 749). 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, 185 F.3d 1328, 1332 (Fed. Cir. 1999) (evaluating CUE
based on the plain language of a regulation); Groves v.
Peake, 524 F.3d 1306, 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 Su-
preme Court’s decision in George II are equally applicable
here: CUE must be based on the law at the time, “regard-
less of . . . later decisions by the agency or a court.” Per-
ciavalle, 74 F.4th at 1382; see George II, 596 U.S. at 747.
Additionally, we note that the Veterans Court has al-
ready concluded that neither a first nor a changed inter-
pretation may be relied on to establish CUE, including in a
decision that was issued just prior to Congress’s codifica-
tion of CUE and that the Supreme Court relied on in
George II. See 596 U.S. at 747 (citing Berger v. Brown, 10
Vet. App. 166, 170 (1997)). In Berger, the Veterans Court
rejected the notion that its initial interpretation of a stat-
ute and implementing regulation in 1993 could “be the ba-
sis of an adjudicative error in [the RO’s] 1969” decision, as
“a simple recitation of the time sequence [should] make
that clear.” 10 Vet. App. at 170. The Veterans Court “spe-
cifically 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,” be-
cause CUE is concerned with only the body of law that ex-
isted at the time of the decision. Id.; see also Lamb v.
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SIPLES v. COLLINS 11
Peake, 22 Vet. App. 227, 234–35 (2008). Our own court, too,
recently arrived at the same conclusion, albeit in a non-
precedential decision. See Steele v. McDonough, 856 F.
App’x 878, 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. Conse-
quently, 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 omit-
ted)).
Mr. Siples retorts that “the first, binding interpreta-
tion of the regulation tells us what the law has always re-
quired.” Appellant’s Reply Br. 4 (emphasis added). But
Burton did not purport to offer such a definitive interpre-
tation 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 interpre-
tation from examining the regulation as a whole . . . .”).
Even if Mr. Siples were correct, general principles of final-
ity prohibit a new judicial pronouncement like Burton’s
from being applied retroactively to collaterally attack a fi-
nal RO decision on the basis of CUE. See George I, 991 F.3d
at 1236–37; George II, 596 U.S. at 751. Mr. Siples argues
that his position “does not mean that he is asking for a ret-
roactive 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 ar-
gument relying on Burton’s later-in-time interpretation of
§ 4.59 fails regardless of whether Burton represents an in-
itial 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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SIPLES v. COLLINS 12
standard for assessing a legal-based CUE, which turns on
whether the RO’s 2004 decision was undebatably errone-
ous based on § 4.59 as understood based on the law at the
time of the decision. See Willsey, 535 F.3d at 1373. 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 shoul-
der disability.
As mentioned above, although a later-in-time interpre-
tation of a regulation cannot itself establish CUE, a regu-
lation’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, 74 F.4th at 1382. To inter-
pret a regulation, we look at its plain language and con-
sider the terms in accordance with their common meaning.
Lane v. Principi, 339 F.3d 1331, 1340 (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 pro-
nouncement—in its opening sentence—that “[w]ith any
form of arthritis, painful motion is an important factor of
disability.” 38 C.F.R. § 4.59 (emphasis added); see Deci-
sion, 2021 WL 5919626, 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, 983 F.3d 1321,
1327 (Fed. Cir. 2020) (cleaned up). But given the regula-
tion’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 evi-
dently determined that § 4.59 should not be limited to ar-
thritis. See Burton, 25 Vet. App. at 3, 5. 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 deci-
sion 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, 2021 WL 5919626, at *3.5 As men-
tioned 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 re-
ported Veterans Court cases applying § 4.59 to arthritis-
based claims suggest that the regulation was understood
as being so limited. See Ferguson, 1 Vet. App. at 430;
Lichtenfels, 1 Vet. App. at 488. 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 25 Vet.
App. at 3.6
4 For the avoidance of doubt, our decision today does
not disturb or cast doubt upon the Veterans Court’s deci-
sion deferring to the Secretary’s interpretation in Burton
and that court’s directive that, going forward, the VA ad-
dress the applicability of § 4.59 in non-arthritis claims. See
25 Vet. App. at 5.
5 At oral argument, Mr. Siples agreed that the un-
derstanding of § 4.59 was unsettled in 2004. See Oral Arg.
at 3:32–55 (available at https://oralargu-
ments.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, 74 F.4th at
1382, the CUE inquiry does not preclude reference to a
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SIPLES v. COLLINS 14
Finally, we agree with the Veterans Court that G.C.
Prec. 9-98 does not change the assessment. See Decision,
2021 WL 5919626, at *3. This precedential opinion of the
VA General Counsel addressed several questions that the
opinion characterized as “pertain[ing] to the applicability
of 38 C.F.R. §§ 4.40, 4.45, and 4.59 in rating arthritis and
other musculoskeletal disabilities.” G.C. Prec. 9-98, 1998
WL 35275130, at *1 (emphasis added). However, that
passing statement did not necessarily mean that each of
the three identified regulations applied to “other musculo-
skeletal disabilities.” Id. The questions presented and an-
swered 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 osteo-
arthritis (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 ar-
thritis under DC 5003 and section 4.59 would be availa-
ble.”). 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. Si-
ples’s case, § 4.59 was not undebatably understood as ap-
plying 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.
Case: 22-1528 Document: 51 Page: 14 Filed: 02/07/2025

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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
Case: 22-1528 Document: 51 Page: 15 Filed: 02/07/2025

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