Frantzis: There is no statutory right to have the same Board member who presided over a hearing decide the appeal

Frantzis v. McDonough, 35 Vet.App. 14 (2022)

HELD: under the ama, A VETERAN DOES NOT HAVE THE RIGHT TO HAVE THE SAME BOARD MEMBER WHO CONDUCTED THE HEARING DECIDE THE APPEAL.

Summary: In June 2018, veteran opts into the AMA via the RAMP. In May 2019, the veteran and his wife testify before a Veterans Law Judge. In September 2019, a DIFFERENT Veterans Law Judge issues a decision. This VLJ acknowledges the hearing testimony, but finds the medical evidence is more probative. 

At the CAVC, the veteran argues that 38 USC § 7102 requires the VLJ who held hearing to issue decision. The Secretary argues that 38 USC § 7107 controls - and this statute does not say that the Board member who conducted the hearing must write the decision. The CAVC agreed with the Secretary, noting that Congress removed the requirement that the Board member who conducts the hearing must issue the decision.

The dissent includes great language regarding the principle of fair process and the pro-veteran canon. This case was appealed to the Federal Circuit on August 28, 2022.


Acree: Withdrawal of appeal during Board hearing

Acree v. O’Rourke891 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 The Board issued a decision, remanding the remaining four claims and dismissing the withdrawn claims.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appealed to the CAVC, arguing that the Board failed to adequately explain its determination that he had effectively withdrawn the seven claims.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.

FULL DECISION