WITHDRAWAL OF NOTICE OF DISAGREEMENT VIA TELEPHONE IS INVALID
/Warren v. McDonald, docket no. 15-0641 (Sept. 14, 2016)
HELD: An appellant or his/her representative may withdraw an appeal, but unless the withdrawal is on the record at a hearing, it must be in writing. A withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.”
SUMMARY: Mr. Warren was denied service connection for sleep apnea in April 2009, and he appealed. The RO continued its denial in Statement of the Case. The RO then received a statement that it treated as a VA Form 9, in which the veteran stated that he was withdrawing his request for review by a Decision Review Officer and instead requesting a Board hearing. The veteran’s representative also submitted a request for a Board hearing.
In April 2010, a VA employee subsequently called the veteran and noted in a “Report of General Information” that she spoke with him over the phone and that he wanted to withdraw his sleep apnea appeal. A few days later, a Report of General Information, completed by a different VA employee, stated that the veteran called to state that he wanted a Board hearing. A few days later, the RO certified his appeal to the Board.
Later that month, on May 28, 2010, Mr. Warren’s representative submitted additional evidence “in support of the pending claim” for service connection for sleep apnea. The RO treated this as a new claim, requiring “new and material evidence” to reopen. Mr. Warren then underwent a Compensation and Pension examination – and the examiner provided a favorable medical nexus opinion. The RO awarded service connection for sleep apnea – assigning May 28, 2010 as the effective date. This decision was not appealed.
In the June 2013, Mr. Warren was afforded a Board hearing in which the presiding Board member characterized the issues to include service connection for sleep apnea. The veteran’s representative stated that the April 2010 Report of General Information mischaracterized Mr. Warren’s request. He clarified that he did not state that he wanted to withdraw his appeal; rather, he wanted to withdraw it from DRO review and proceed directly to a Board hearing.
In its November 2014 decision, the Board stated that the appeal arose from the April 2009 denial of service connection for sleep apnea – but that the April 2010 Report of General Information was a proper withdrawal of that appeal. The Board thus found that May 28, 2010 was the appropriate effective date for the award of service connection for sleep apnea.
On appeal to the Veterans Court, Mr. Warren argued that the Board failed to apply the correct legal standard in finding that he withdrew his appeal. The Secretary did not address this argument – but instead asserted that the Board improperly adjudicated a “freestanding earlier effective date issue” and that the proper remedy was for the Court to vacate the Board’s decision and dismiss the appeal.
The Court noted that the Board’s rules regarding withdrawal of appeals states that only an appellant or his/her representative may withdraw an appeal and that “[e]xcept for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.” The Court added that a withdrawal “is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” The Court noted that in Mr. Warren’s case, the alleged withdrawal was conducted over the phone and that there was “considerable evidence that Mr. Warren did not intend to withdraw his 2008 sleep apnea claim when he called VA in April 2010,” but that he simply meant to withdraw his request for DRO review. The Court thus reversed the Board’s determination that Mr. Warren had withdrawn his appeal.
As for the issue on appeal, the Court determined that there were two claim streams in this case – (1) the 2008 claim for service connection for sleep apnea that resulted in the April 2009 denial and (2) the May 2010 “claim” that the RO treated as a request to reopen, based on its belief that Mr. Warren had withdrawn his appeal of the April 2009 denial.
The Board characterized the first claim as one for an earlier effective date – but the Court found that the Board did not have jurisdiction over this “claim” because it had not been adjudicated by the RO. The issue that had been appealed to the Board was service connection for sleep apnea – not the effective date.
The Court determined that “because the veteran timely appealed the April 2009 RO decision denying the December 2008 claim, only a Board decision can resolve the December 2008 claim” – and that the September 2010 RO decision could not resolve this issue because “by virtue of his appeal, the Board, not the RO, had jurisdiction over it.”
In this respect, the Court agreed with the Secretary that the Board did not have jurisdiction over the effective date issue. The Board had jurisdiction over the appeal arising from the 2008 claim for service connection. The Court held that the Board clearly erred when it determined that Mr. Warren withdrew his appeal of the April 2009 decision and reversed that portion of the decision. The Court remanded the issue of service connection for sleep apnea – the merits of the December 2008 claim – to the Board, expressly directing it to consider the supporting evidence Mr. Warren submitted in May 2010.
