Veteranclaims’s Blog

June 5, 2018

Acree v. O’Rourke, No. 2017-1749(Decided: June 4, 2018); Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980); lack of counsel; claimant’s rights adequately protected; claim withdrawal at Board hearing; 38 C.F.R. § 3.103(c)(2) and 38 C.F.R. § 20.204(b)(1);

Excerpt from decision below:

“The need to ensure that a veteran understands the consequences of claim withdrawal is
particularly acute when, as here, he suffers from psychiatric illness3 and appears pro se4 before the board. See Comer, 552 F.3d at 1369 (explaining that a veteran who “is afflicted with a significant psychological disability” may need additional assistance from the VA); see also
3 Acree was diagnosed with PTSD and an anxiety
disorder, J.A. 99, 235–39, 305, and has long been medicated
with numerous psychotropic drugs, J.A. 52–53, 84,
89–90, 315.
4 Although Acree was accompanied by a DAV aide
when he appeared before the board, J.A. 146–48, we have
previously recognized that assistance from such an aide
“is not equivalent to representation by a licensed attorney,”
Comer, 552 F.3d at 1369.
ACREE v. O’ROURKE 9

Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980)(explaining that when a claimant at an administrative hearing is “handicapped by lack of counsel” a reviewing court must make a greater effort “to ensure that the claimant’s rights have been adequately protected” (citation and internal quotation marks omitted)). We believe DeLisio sets a reasonable standard for withdrawals at hearings as contemplated by 38 C.F.R. § 3.103(c)(2) and 38 C.F.R. § 20.204(b)(1), and adopt it as well.”

====================

United States Court of Appeals for the Federal Circuit
______________________
LAWRENCE J. ACREE,
Claimant-Appellant
v.
PETER O’ROURKE, ACTING SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2017-1749
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 15-31, Senior Judge Alan G.
Lance, Sr.
______________________
Decided: June 4, 2018
______________________
NATALIE A. BENNETT, McDermott, Will & Emery LLP,
Washington, DC, argued for claimant-appellant.
ALEXANDER ORLANDO CANIZARES, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for respondent-appellee.
Also represented by CHAD A. READLER, ROBERT E.
KIRSCHMAN, JR., L. MISHA PREHEIM; Y. KEN LEE, DEREK
SCADDEN, Office of General Counsel, United States Department
of Veterans Affairs, Washington, DC.
______________________
ACREE 2 v. O’ROURKE
Before O’MALLEY, MAYER, and TARANTO, Circuit Judges.
MAYER, Circuit Judge.
Lawrence J. Acree appeals the judgment of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) affirming a decision by the Board of Veterans’
Appeals (“board”) to dismiss seven of his claims. See
Acree v. Snyder, No. 15-0031, 2017 WL 393986 (Vet. App.
Jan. 30, 2017) (“Veterans Court Decision”). We vacate and
remand.
BACKGROUND
Acree served on active duty in the United States Navy
from June 1985 to June 1989 and from June 2007 to April
2008. J.A. 9. While in the service, he was deployed to
Iraq and was awarded Seabee Combat Warfare medals for
his combat service. J.A. 39. Acree was diagnosed with
post-traumatic stress disorder (“PTSD”) while serving in
Iraq. J.A. 99, 237.
After he left the service, Acree filed several claims for
service-connected disability benefits with the Louisville,
Kentucky Regional Office of the Department of Veterans
Affairs (“VA”). J.A. 348–57. Acree appealed eleven of
those claims to the board. See J.A. 8–17. On September
10, 2014, Acree testified at a hearing before the board.
J.A. 10–11. A representative from the Disabled American
Veterans (“DAV”) organization was present at the hearing.
J.A. 2, 146–85. The presiding board member asked
Acree if he was withdrawing seven of his eleven claims
from the appeal. His colloquy with Acree was as follows:
[BOARD MEMBER]: The issues certified for appellate
consideration today, well there’s more issues
certified than what we’re going to be
discussing because some of the issues have been
withdrawn. So let me address the issues that
have been withdrawn first. The issue of an increased
rating for degenerative arthritis of the
ACREE v. O’ROURKE 3
tendonitis of the left shoulder. An earlier effective
date for service connection for degenerative arthritis
with tendonitis of the left shoulder, lumbar
strain, [PTSD] and sinusitis. Entitlement to service
connection for exposure to Gulf War hazards
and entitlement to a total disability rating based
on individual unemployability.
You’re withdrawing your appeal with respect to
all of those issues, is that correct, Mr. Acree?
[ACREE]: Yes.
J.A. 147.
Following this exchange, the presiding board member
listed the four issues that would be discussed at the
hearing and would “continue to be in appellate status.”
J.A. 148. He then asked the DAV representative whether
he had “correctly identified the issues.” J.A. 148. The
representative responded: “Yes, thank you, Judge.” J.A.
148.
On November 20, 2014, the board issued a final written
decision remanding four of Acree’s claims for further
development. J.A. 10–17. The board dismissed Acree’s
seven remaining claims,1 concluding that he had effective-
1 These seven claims were for: (1) “[e]ntitlement to
an initial rating in excess of 10 percent for degenerative
arthritis with tendonitis of the left shoulder”;
(2) “[e]ntitlement to an effective date earlier than
April 24, 2008 for the award of service connection for
degenerative arthritis with tendonitis of the left shoulder”;
(3) “[e]ntitlement to an effective date earlier than
April 24, 2008 for the award of service connection for a
lumbar strain”; (4) “[e]ntitlement to an effective date
earlier than April 24, 2008 for the award of service connection
for [PTSD]”; (5) “[e]ntitlement to an effective date
ACREE 4 v. O’ROURKE
ly withdrawn his appeal with respect to those claims
during the September 2014 hearing. J.A. 10–11. Citing
38 C.F.R. § 20.204(a), the board stated that “[a]n appeal
may be withdrawn as to any or all issues involved in the
appeal at any time before the [b]oard promulgates a
decision.” J.A. 11.
Acree then appealed to the Veterans Court, arguing
that the board “failed to provide an adequate statement of
reasons or bases for its determination” that he had effectively
withdrawn seven of his claims. J.A. 383 (citation
and internal quotation marks omitted). He asserted 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.’” J.A. 381 (quoting DeLisio v.
Shinseki, 25 Vet. App. 45, 57 (2011)). According to Acree,
remand was required because the board decision “never
mentioned or analyzed the DeLisio factors,” J.A. 384, and
the hearing officer “did not explain . . . the consequences
of withdrawing any of the claims at issue,” J.A. 390.
Acree further asserted that since he “ha[d] a long history
of taking psychotropic medications,” the hearing officer
“should have at least inquired as to whether [he] had the
capacity to appreciate the consequences of dismissing the
claims at issue.” J.A. 391.
On January 30, 2017, the Veterans Court issued a decision
sustaining the board’s determination that Acree
had effectively withdrawn seven of his claims. The court
acknowledged that under DeLisio, 25 Vet. App. at 57, “a
earlier than Apri1 24, 2008 for the award of service connection
for sinusitis”; (6) “[e]ntitlement to service connection
for exposure to Gulf War hazards”; and
(7) entitlement to a total disability rating due to individual
unemployability resulting from service-connected
disability (“TDIU”). J.A. 10–11.
ACREE v. O’ROURKE 5
withdrawal is only effective where it is explicit, unambiguous,
and done with a full understanding of the consequences
of such action on the part of the [veteran].”
Veterans Court Decision, 2017 WL 393986, at *2. It
stated, however, that because “the [b]oard hearing transcript
reflect[ed] that [Acree’s] withdrawal of his claims
was explicit and unambiguous,” there was no need for the
board “to delve into further analysis, and the explanation
that the [b]oard provided in its statement of reasons or
bases [was] adequate.” Id. The court rejected, moreover,
Acree’s argument that a board hearing officer has a duty,
under 38 C.F.R. § 3.103(c)(2), to explain the consequences
of withdrawing a claim. See Veterans Court Decision,
2017 WL 393986, at *2–3.
Acree then appealed to this court. We have jurisdiction
under 38 U.S.C. § 7292.
DISCUSSION
A. Standard of Review
This court’s authority to review decisions of the Veterans
Court is circumscribed by statute. See id. Although
we are prohibited, absent a constitutional issue, from
reviewing “a challenge to a factual determination” or “a
challenge to a law or regulation as applied to the facts of a
particular case,” id. § 7292(d)(2), we have jurisdiction to
review whether the Veterans Court properly interpreted a
statutory or regulatory provision, id. § 7292(a); see
O’Bryan v. McDonald, 771 F.3d 1376, 1378–80 (Fed. Cir.
2014). “We review a claim of legal error in a decision of
the Veterans Court without deference.” Cogburn v.
McDonald, 809 F.3d 1232, 1235 (Fed. Cir. 2016).
B. Effective Verbal Withdrawal of a Claim
VA regulations provide that a veteran’s “appeal may
be withdrawn as to any or all issues involved in the
appeal.” 38 C.F.R. § 20.204(a). They also include guidelines
related to the “[f]orm and content” of a withdrawal:
ACREE 6 v. O’ROURKE
Except for appeals withdrawn on the record at a
hearing, appeal withdrawals must be in writing.
They must include the name of the veteran, the
name of the claimant or appellant if other than
the veteran (e.g., a veteran’s survivor, a guardian,
or a fiduciary appointed to receive VA benefits on
an individual’s behalf), the applicable [VA] file
number, and a statement that the appeal is withdrawn.
If the appeal involves multiple issues, the
withdrawal must specify that the appeal is withdrawn
in its entirety, or list the issue(s) withdrawn
from the appeal.
Id. § 20.204(b)(1).
Section 20.204(b)(1) sets out with particularity the requirements
for making a written request to withdraw a
claim. See id. By contrast, although the regulation states
that an appeal may be “withdrawn on the record at a
hearing” before the board, id., it is silent as to what is
required to effectuate such a withdrawal.
In DeLisio, however, the Veterans Court determined
that a statement made by a veteran at a board hearing
qualifies as an effective claim withdrawal in accordance
with the regulation only where it is: (1) “explicit”;
(2) “unambiguous”; and (3) “done with a full understanding
of the consequences of such action on the part of the
[veteran].” 25 Vet. App. at 57; see Warren v. McDonald,
28 Vet. App. 214, 218 (2016) (applying the DeLisio standard
and concluding that there had been no effective
withdrawal of a claim for sleep apnea because the veteran
had not unambiguously stated that he wished to withdraw
that claim); Isenbart v. Brown, 7 Vet. App. 537, 541
(1995) (concluding that a veteran had not withdrawn a
claim for TDIU although he had stated at a “hearing that
the issues were evaluation of his service-connected skin
condition and peptic ulcer and service connection for a
nervous condition and that there were ‘no additional
ACREE v. O’ROURKE 7
issues’” (citation omitted)). In DeLisio, a board hearing
officer “listed 15 matters that required adjudication and
then asked [the veteran] if he ‘got the issues straight,’ to
which [the veteran] responded that he ‘thought’ so.” 25
Vet. App. at 58 (citation omitted). Although the government
argued that the veteran had withdrawn a claim for
“left-leg numbness” because it had not been among the
fifteen claims listed by the hearing officer, the Veterans
Court rejected this contention, concluding that there had
been no effective withdrawal because “the transcript
reflect[ed] neither an explicit discussion of withdrawal nor
any indication that [the veteran] understood that he
might be withdrawing claims for benefits for any disabilities
not discussed.” Id.
The DeLisio standard for verbal2 claim withdrawal
comports with the “uniquely pro-claimant nature” of the
system for adjudicating claims for veterans’ benefits.
Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000).
“The VA disability compensation system is not meant to
be a trap for the unwary, or a stratagem to deny compensation
to a veteran who has a valid claim.” Comer v.
Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009); see Barrett v.
Nicholson, 466 F.3d 1038, 1044 (Fed. Cir. 2006) (“The
government’s interest in veterans cases is not that it shall
win, but rather that justice shall be done, that all veterans
so entitled receive the benefits due to them.”). By
requiring that an effective verbal claim withdrawal must
be explicit, unambiguous, and undertaken with a full
understanding of its consequences, the DeLisio standard
2 Resolution of Acree’s appeal turns on the requirements
necessary for an effective oral withdrawal of a
claim at a board hearing. We express no view on the
criteria that must be satisfied when a veteran submits a
written request to withdraw a claim. See 38 C.F.R.
§ 20.204(b).
ACREE 8 v. O’ROURKE
provides a bulwark against the inadvertent or uninformed
forfeiture of a veteran’s rights. See Henderson v.
Shinseki, 562 U.S. 428, 431 (2011) (“The VA’s adjudicatory
process is designed to function throughout with a high
degree of informality and solicitude for the claimant.”
(citation and internal quotation marks omitted)); Jaquay
v. Principi, 304 F.3d 1276, 1280 (Fed. Cir. 2002) (en banc)
(“Congress has created a paternalistic veterans’ benefits
system to care for those who served their country in
uniform.”).
As they traverse the “labyrinthine corridors of the
veterans’ adjudicatory system,” Comer, 552 F.3d at 1369,
veterans may lack a complete understanding of the consequences
of claim withdrawal. See 38 C.F.R. § 20.204(c)
(“Withdrawal does not preclude filing a new Notice of
Disagreement and, after a Statement of the Case is issued,
a new Substantive Appeal, as to any issue withdrawn,
provided such filings would be timely under these
rules if the appeal withdrawn had never been filed.”
(emphasis added)). The need to ensure that a veteran
understands the consequences of claim withdrawal is
particularly acute when, as here, he suffers from psychiatric
illness3 and appears pro se4 before the board. See
Comer, 552 F.3d at 1369 (explaining that a veteran who
“is afflicted with a significant psychological disability”
may need additional assistance from the VA); see also
3 Acree was diagnosed with PTSD and an anxiety
disorder, J.A. 99, 235–39, 305, and has long been medicated
with numerous psychotropic drugs, J.A. 52–53, 84,
89–90, 315.
4 Although Acree was accompanied by a DAV aide
when he appeared before the board, J.A. 146–48, we have
previously recognized that assistance from such an aide
“is not equivalent to representation by a licensed attorney,”
Comer, 552 F.3d at 1369.
ACREE v. O’ROURKE 9
Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980)
(explaining that when a claimant at an administrative
hearing is “handicapped by lack of counsel” a reviewing
court must make a greater effort “to ensure that the
claimant’s rights have been adequately protected” (citation
and internal quotation marks omitted)). We believe
DeLisio sets a reasonable standard for withdrawals at
hearings as contemplated by 38 C.F.R. § 3.103(c)(2) and
38 C.F.R. § 20.204(b)(1), and adopt it as well.
C. The Veterans Court Decision
Here, the Veterans Court acknowledged that DeLisio
sets out the proper standard for determining whether a
veteran has effectively withdrawn a claim at a board
hearing. See Veterans Court Decision, 2017 WL 393986,
at *2 (stating that under DeLisio “a withdrawal is only
effective where it is explicit, unambiguous, and done with
a full understanding of the consequences of such action on
the part of the [veteran]”). The court determined, however,
that since the board “hearing transcript reflect[ed]
that [Acree’s] withdrawal of his claims was explicit and
unambiguous,” the board “was not required to delve into
further analysis” on the question of whether he understood
the consequences of withdrawing his claims. Id.
We disagree. Having embraced the DeLisio standard
for determining whether a veteran has effectively withdrawn
a claim at a hearing, the Veterans Court erred by
failing to ensure that the board faithfully adhered to that
standard. See Allentown Mack Sales & Serv., Inc. v.
NLRB, 522 U.S. 359, 375 (1998) (“Reasoned decisionmaking,
in which the rule announced is the rule applied,
promotes sound results, and unreasoned decisionmaking
the opposite.”); Schucker v. FDIC, 401 F.3d 1347, 1354
(Fed. Cir. 2005) (emphasizing that a reviewing court must
“act if an agency, without explanation, engages in conduct
that is inconsistent with its precedent”); In re Lee, 277
F.3d 1338, 1344 (Fed. Cir. 2002) (“Omission of a relevant
ACREE 10 v. O’ROURKE
factor required by precedent is both legal error and arbitrary
agency action.”). Although the court correctly
articulated the three-part DeLisio standard, see Veterans
Court Decision, 2017 WL 393986, at *2, it improperly
absolved the board of any obligation to apply the third
prong of that standard. See Allentown, 522 U.S. at 375
(explaining that “a decision that applies a standard other
than the one it enunciates” impedes the “consistent application
of the law”).
At oral argument, counsel for the government stated
that it “does not take issue with” the DeLisio standard.
Oral Argument at 26:16–22, available at
http://oralarguments.cafc.uscourts./gov/mp3/2017-1749.m
p3. Counsel asserted, however, that the Veterans Court
properly applied that standard in a “flexible” manner. Id.
at 26:41–48. This argument is unpersuasive. As discussed
previously, DeLisio explicitly states that a withdrawal
is effective only if it is undertaken with “a full
understanding of the consequences of such action on the
part of the [veteran].” 25 Vet. App. at 57. No amount of
“flexibility” can salvage a decision which apparently gave
no consideration to whether this requirement was satisfied.
See Fla. Power & Light Co. v. Lorion, 470 U.S. 729,
744 (1985) (“[I]f the agency has not considered all relevant
factors, or if the reviewing court simply cannot evaluate
the challenged agency action on the basis of the record
before it, the proper course, except in rare circumstances,
is to remand to the agency for additional investigation or
explanation.”); Verdon v. Brown, 8 Vet. App. 529, 533
(1996) (“[W]here it is not clear that a VA claimant has
withdrawn a particular claim from an appeal to the
[board], it is not sufficient for the [b]oard to conclude that
there is an abandonment without providing an adequate
statement of reasons or bases to support that conclusion.”).
The government further asserts that requiring the
board to ascertain whether a veteran understands the
ACREE v. O’ROURKE 11
consequences of withdrawing an appeal is inconsistent
with 38 C.F.R. § 20.204(a), which provides that a veteran
or a veteran’s “authorized representative[] may withdraw
an appeal.” In the government’s view, requiring the board
to assess whether a veteran understands the consequences
of withdrawal would mean that “the veteran would
have to testify and answer questions about his withdrawal
in every case, instead of relying upon his representative.”
This argument is unpersuasive. VA regulations
contemplate that a veteran will generally be present at a
board hearing. See 38 C.F.R. § 20.700(b) (“A hearing will
not normally be scheduled solely for the purpose of receiving
argument by a representative.”). Only “if good cause
is shown” can a veteran’s representative appear before the
board without him. Id. In the unusual instances in which
a representative appears alone before the board and seeks
to withdraw one or more claims, it is unlikely to be unduly
burdensome for the hearing officer to determine—
either by questioning the representative or by contacting
the veteran directly—that the veteran firmly intends to
withdraw a claim and understands the consequences of
claim withdrawal. See Board of Veterans’ Appeals: Rules
of Practice–Appeal Withdrawal, 68 Fed. Reg. 13,235 (Mar.
19, 2003) (explaining that although section 20.204(b) now
permits “a representative to execute [a veteran’s] desire to
withdraw an appeal,” the veteran “is the one making the
decisions” regarding claim withdrawal).
Our jurisdictional statute, see 38 U.S.C. § 7292, authorizes
“us to determine whether a Veterans Court
decision may have rested on an incorrect rule of law, and,
moreover, to determine that the correct rule of law requires
factual determinations missing from the [b]oard’s
decision (and perhaps further factual development), thus
precluding Veterans Court affirmance of the [b]oard’s
decision.” Martin v. McDonald, 761 F.3d 1366, 1369 (Fed.
Cir. 2014) (citations omitted). Because there has been no
finding regarding whether Acree understood the conseACREE
12 v. O’ROURKE
quences of withdrawing his claims, we remand his case
for further development.
CONCLUSION
Accordingly, the judgment of the United States Court
of Appeals for Veterans Claims is vacated and the case is
remanded for further proceedings consistent with this
opinion.
VACATED AND REMANDED
COSTS
Acree shall have his costs.

 

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