Acree v. O’Rourke, 891 F.3d 1009 (June 4, 2018)
HELD: A veteran can withdraw an appeal at a hearing, as long as the withdrawal “is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”
SUMMARY: At a Board hearing, the veteran withdrew seven of his eleven appeal issues. He was represented by a DAV representative. The Board issued a decision, remanding the remaining four claims and dismissing the withdrawn claims. Mr. Acree then appealed to the CAVC, arguing that the Board failed to adequately explain its determination that he had effectively withdrawn the seven claims. He quoted DeLisio v. Shinseki, 25 Vet.App. 45 (2011), to assert that a veteran’s withdrawal of a claim is not effective unless the withdrawal “is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” The CAVC affirmed the Board’s decision.
On appeal, the Federal Circuit first noted that VA’s regulation regarding withdrawal of appeals at the Board, 38 C.F.R. § 20.204(b)(1), describes what is required to withdraw an appeal in writing, but is silent with respect to how to withdraw an appeal during a hearing. The Federal Circuit noted the CAVC’s holding in DeLisioand that case’s harmony with the “uniquely pro-claimant nature” of the VA benefits scheme, and determined that “DeLisio sets a reasonable standard for withdrawals at hearings.” The Court found that the CAVC erred by not ensuring that the Board adhered to the DeLisio standard. Because the CAVC “improperly absolved the Board of any obligation” to ensure the veteran had a “full understanding of the consequences” of the withdrawal, the Federal Circuit vacated and remanded the CAVC’s decision.