Warren v. McDonald, Opinion Number 15-0641, decided September
14, 2016 involves an alleged withdraw of an appeal before the Board and the
impact it had on a subsequent decision.
The veteran was denied service connection for sleep apnea in
December 2008. He subsequently filed a
NOD in April 2009 asking for an appeal to be processed by a decision review
officer rather than the traditional appeals process.
In April 2010 a statement of the case was issued again
denying service connection for sleep apnea.
However, in a March 2010 statement in support, the veteran stated he
wished to withdraw his request for a decision review officer and asked instead
for a Board hearing. An April 29, 2010
statement from the veteran’s representative reiterated the request for a Board
hearing for the issue of sleep apnea.
However, on April 30, 2010 a VA employee noted on a VA form 21-0820 that
she had spoken to the veteran and he wished to withdraw the sleep apnea
condition from the pending appeal.
However, a May 2010 note from another VA employee noted the veteran called
and requested a travel board hearing. In
May 2010, the RO certified the sleep apnea claim to the Board.
Later in May 2010, the veteran’s representative sent a
physician’s nexus statement with a cover
letter stating it was being sent in support of the veteran’s pending
claim. The RO apparently considered this
a new claim and in September 2010 the RO granted service connection for sleep
apnea effective the May 2010, which was the date the VA considered the claim
reopened. As to the effective date, the
RO noted it had received the prior NOD for sleep apnea but that he had
withdrawn that claim.
In April 2013, the veteran inquired with the VA about the
status of his travel Board hearing, which he had requested in February
2010. A June 2013 Board hearing was held
and the veteran argued the form withdrawing his appeal was a misrepresentation
of his wishes, instead he had wanted to withdraw his claim from DRO review and
wanted to proceed with a Board hearing.
The Board issued a decision in November 2014 in which they noted
the appeal was from a denial of service connection for sleep apnea but
characterized the issue now as an earlier effective date. The Board noted the form purportedly withdrawing
the appeal appeared proper and there was no prohibition against a veteran
withdrawing a claim by telephone. The
Board then found the proper effective date was May 2010.
The Secretary principally relied on Hanson v. Brown, 9 Vet.
App. 29 (1996) wherein the Court affirmed a finding the veteran withdrew a
claim that was withdrawn when a VA social worker conducted an in-person meeting
and completed a contact form withdrawing the issue. The Court noted “Withdrawal of an appeal is
only effective where withdrawal is explicit, unambiguous, and one with a full
understanding of the consequences of such action on the part of the claimant.” The Court then noted the dissimilarities
between Hanson and the case at hand.
They noted, Hanson involved an in-person meeting as opposed to a
telephone call and they also noted “unlike in Hanson, there is considerable
evidence that Mr. Warren did not intend to withdraw his 2008 sleep apnea claim when
he called VA in April 2010. Instead, the
… evidence indicates that Mr. Warren merely wished to remove his sleep apnea
claim from the DRO process and that, even after the April 2010 purported
withdrawal, he believed that his sleep apnea claim was still pending on appeal….” The Court then concluded “On the record as a
whole, the Court is left with the definite and firm conviction that the Board
committed a mistake by finding that Mr. Warren withdrew his appeal.”
Next, the Court dealt with whether the most recent Board
decision should have considered the veteran’s service connection for sleep
apnea or the issue of the effective date.
The Court noted this case had two claim streams, the 2008 claim for
service connection for sleep apnea and the 2010 claim that occurred when the RO
construed the veteran’s submission as an application to reopen the claim. The Court stated “Caselaw is clear 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…. The September 2010 RO decision could not
resolve Mr. Warren’s appeal of his December 2008 sleep apnea claim because, by
virtue of his appeal, the Board, not the RO, had jurisdiction over it. The decision of the lower adjudicative body,
the RO, cannot finally decide an issue already on appeal to the Board, the higher
administrative appellate body.”
The result is a remand for the Board to consider the merits
of the December 2008 claim for service connection for sleep apnea, including
all subsequent evidence and argument.
This is an important decision some advocates have noticed a
pattern whereby VA employees seek to persuade veterans to withdraw their appeal
and simply file a new application for benefits.
While this might result in a quicker grant of benefits, it will probably
result in the veteran not receiving the proper effective date. Veterans should beware of this practice. This case also seems suggest the Court is more
than willing to find the VA’s factual argument is not correct if the veteran can
point to evidence that rebuts it. While
the VA should be looking out for veterans and applying the benefit of the doubt
to assist them, it is clear that a veteran should beware of the VA’s actions
and suggestions.
Decided by Judge Bartley, joined by Judges Lance and Davis.
