Acree: Withdrawing an Appeal and the Impact of Delisio

Acree v. O’Rourke, Opinion Number 2017-1749 is a Federal Circuit decision notable for its discussion related to an effective withdraw of issues before the Board of Veterans’ Appeals. 

The veteran was represented by the DAV and has PTSD.  During a Board hearing, the Board member asked if he withdrew several issues on appeal and the veteran agreed.   

On appeal to the Court of Appeals for Veterans Claims the veteran argued the withdrawal of a claim was not effective unless it complied with the requirements of DeLisio v.  Shinseki, 25 Vet. App. 45, 57 (2011), which require the withdrawal to be explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant and noting the Board did not address the third Delisio prong (full understanding of the consequences) . The Veteran’s Court upheld the Board decision.

The Federal Circuit reversed the case.  It determined:

By requiring that an effective verbal claim withdrawal must be explicit, unambiguous, and undertaken with a full understanding of its consequences, the DeLisio standard provides a bulwark against the inadvertent or uninformed forfeiture of a veteran’s rights.

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As they traverse the “labyrinthine corridors of the veterans’ adjudicatory system,” veterans may lack a complete understanding of the consequences of claim withdrawal.

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The need to ensure that a veteran understands the consequences of claim withdrawal is particularly acute when, as here, he suffers from psychiatric illness and appears pro se before the board.

Id. at *7-8.

The Federal Circuit then stated after the Veteran’s Court embraced the Delisio standard, it erred by failing to ensure the Board faithfully adhered to it.  Id. at *9.  Because the third prong of Delisio had not been addressed, the Federal Circuit remanded for further development.

While limited to Board hearings, this case likely has wider implications.  The practice of VA employees getting a veteran to withdraw a claim (or an appeal) without the veteran fully understanding the consequences of that action likely happens often and these types of withdrawals are subject to attack.  An example I can foresee is one where a VA employee suggests withdrawing an appeal so a new claim can be filed resulting in a quicker decision.  If the VA employee does not make explicit that the veteran is giving up a possible earlier effective date, this practice is problematic and subject to attack.

The case does distinguish between those veteran’s represented by an attorney and veteran’s service officer, which will likely lead to an assumption that one represented by an attorney understands the consequences of his actions. 

Decision by Judge Mayer and joined by Judge O’Malley and Taranto.