Veteranclaims’s Blog

June 30, 2018

Single Judge Application; § 20.204; Withdrawal of claim; Acree, 2018 WL 2466166, at *5;

Excerpt from decision below:

“As the U.S. Court of Appeals for the Federal Circuit recently confirmed in Acree, regardless of whether the form and content of the purported withdrawal comply with § 20.204, the withdrawal is not effective unless the appellant understood the consequences of his actions, a fact that requires a formal finding by the Board. 2018 WL 2466166, at *5; see DeLisio, 25 Vet.App. at 57. Here, the Board made no such finding. Consequently, judicial review has been frustrated and remand is required for the Board to provide adequate reasons or bases. See Allday, 7 Vet.App. at 527; Gilbert 1 Vet.App. at 56-57.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 17-0018
HALLAYE SOW, APPELLANT,
V.
PETER O’ROURKE,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Senior Judge.1
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

MOORMAN, Senior Judge: The appellant, Hallaye Sow, appeals through counsel a September 27, 2016, decision of the Board of Veterans’ Appeals (Board) that dismissed his claims seeking entitlement to (1) an increased disability rating in excess of 30%, before October 7, 2015, and 60%, from that date, for tinea versicolor; (2) an increased disability rating in excess of 20%, before October 7, 2015, and 40%, from that date, for lumbosacral strain; (3) an initial compensable disability rating, before February 12, 2009, and a disability rating in excess of 10%, from that date, for right knee patellofemoral pain syndrome; and (4) an initial compensable disability rating, before February 12, 2009, and a disability rating in excess of 10%, from that date, for left knee patellofemoral pain syndrome. Record (R.) at 1-5. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. § 7252(a). Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The appellant submitted a brief and reply brief, and the Secretary submitted a brief. For the following reasons, the Court will vacate the Board’s decision dismissing these claims and remand them for further proceedings consistent with this decision.
1 Judge Moorman is a Senior Judge acting in recall status. In re: Recall of Retired Judge, U.S. VET. APP. MISC. ORDER 02-18 (Jan. 16, 2018).
2
I. BACKGROUND
Mr. Sow served on active duty in the U.S. Navy from May 2004 to October 2008. R. at 505. In January 2009, the VA regional office (RO) granted service connection for, inter alia, tinea versicolor, which was assigned a 30% rating; lumbosacral strain, which was assigned a 10% rating; and left and right knee patellofemoral pain syndrome, which were assigned noncompensable ratings. R. at 1830-39. Mr. Sow filed a timely Notice of Disagreement (NOD) seeking higher disability ratings for his skin, back, and knee disabilities. R. at 1550-52.
In December 2011, the RO determined that there had been clear and unmistakable error with respect to the initial disability rating assigned for Mr. Sow’s back disability and assigned an increased initial 20% disability rating. R. at 1805-10. In March 2012, the RO granted an increased 10% disability rating, each, for Mr. Sow’s right and left knee disabilities, effective from February 12, 2009, R. at 1076-83, and issued a Statement of the Case (SOC) continuing the ratings assigned for his skin and back disabilities, R. at 1111-15. Mr. Sow filed a Substantive Appeal, which VA received in May 2012, that expressed his continued disagreement with the “staged” ratings assigned for all four disabilities. R. at 1017-18.
In August 2015, the Board remanded all four increased rating claims for additional development. R. at 313-20. In November 2015, the RO granted increased ratings of 40% for Mr. Sow’s back disability and 60% for his skin disability, both effective October 7, 2015, R. at 48-54, and issued a Supplemental SOC continuing the “staged” ratings assigned for his bilateral knee disabilities, R. at 75-80.
In June 2016, VA received additional written correspondence from Mr. Sow and his representative. R. at 8-10. The correspondence from Mr. Sow stated that he “would like to stop [his] appeal process” and that he was “satisf[ied] with the findings.” R. at 10. Below that statement, Mr. Sow listed all four increased-rating claims now on appeal. Id. The document from Mr. Sow’s representative stated that, “[p]ursuant to 38 C.F.R. § 20.204, [Mr. Sow] moves the Board to withdraw his appeal and return his case to the agency of original jurisdiction (AOJ).” R. at 8.
On September 27, 2016, the Board limited its findings to a determination that the appellant’s June 2016 written statement “indicated that he wished to withdraw his appeal” as to all four claims. R. at 4. Accordingly, the Board dismissed the claims. R. at 1-5. This appeal followed.
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II. ANALYSIS
An appellant or an appellant’s authorized representative may withdraw an appeal and an appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.204(a) (2017). Appeals may be withdrawn “on the record at a hearing” or in writing if the writing contains certain information, 38 C.F.R. § 20.204(b), and 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 claimant.” DeLisio v. Shinseki, 25 Vet.App. 45, 57 (2011)); see also Kalman v. Principi, 18 Vet.App. 522, 524 (2004) (reversing a Board finding that the veteran withdrew his appeal where his statement regarding the “only issue remaining,” in context, referred to resolving the location of a video hearing and not limiting the issues on appeal). “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.” 38 C.F.R. § 20.204(b).
A Board determination that a claimant withdrew his or her appeal is a finding of fact subject to the “clearly erroneous” standard of review set forth in 38 U.S.C. § 7261(a)(4), see Kalman, 18 Vet.App. at 524, and must include a “finding regarding whether [the appellant] understood the consequences of withdrawing his claims,” Acree v. O’Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board’s decision as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). When reviewing the question of a claimant’s withdrawal of an appeal to the Board, the Court must take into consideration “the nonadversarial setting of the [VA] claims adjudication process,” Isenbart v. Brown, 7 Vet.App. 537, 541 (1995), during which VA is required to construe liberally all submissions by a claimant, see EF v. Derwinski, 1 Vet.App. 324, 326 (1991).
The appellant argues that the Board erred when it determined that his entire appeal of the “staged” ratings assigned for his skin, back, and bilateral knee disabilities had been withdrawn. Appellant’s Brief (App. Br.) at 10-29. Specifically, he contends that because his June 2016 written correspondence listed only the amount of the maximum increased rating assigned for each disability, it did not constitute a withdrawal of his appeal as to the effective date for each highest-rated “stage,” and that the Board’s determination that he withdrew his entire appeal should be
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reversed. Id. at 10-15. In the alternative, he argues that his case should be remanded because the Board provided inadequate reasons or bases for its determination. Id. at 15-29.
The Secretary counters that the Board correctly determined that the June 2016 correspondence from the appellant and his representative “contained all of the necessary regulatory elements” under 38 C.F.R. § 20.204. Secretary’s (Sec’y) Br. at 6. Therefore, he contends, the Board decision on appeal should be affirmed. Id at 10.
As the U.S. Court of Appeals for the Federal Circuit recently confirmed in Acree, regardless of whether the form and content of the purported withdrawal comply with § 20.204, the withdrawal is not effective unless the appellant understood the consequences of his actions, a fact that requires a formal finding by the Board. 2018 WL 2466166, at *5; see DeLisio, 25 Vet.App. at 57. Here, the Board made no such finding. Consequently, judicial review has been frustrated and remand is required for the Board to provide adequate reasons or bases. See Allday, 7 Vet.App. at 527; Gilbert 1 Vet.App. at 56-57.
In light of the above errors, the appellant argues that the Court should reverse the Board’s finding that his claims were withdrawn. App. Br. at 10-15. However, reversal is not appropriate in this case because the determination needed requires a weighing of evidence and finding of fact that the Court may not do in the first instance. See Kyhn v. Shinseki, 716 F.3d 572, 578 (2013) (this Court does not have jurisdiction to engage in factfinding in the first instance); Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (stating that “appellate tribunals are not appropriate for a for initial factfinding”). The Court therefore concludes that remand, not reversal, is warranted in this case. See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (explaining that reversal is appropriate only “where the Board has performed the necessary factfinding and explicitly weighed the evidence” and this Court, based “on the entire evidence, . . . is left with the definite and firm conviction that a mistake has been committed”); Tucker v. West, 11 Vet.App. 369, 374 (1998) (“Where the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its determinations, or where the record is otherwise inadequate, a remand is the appropriate remedy.”).
In pursuing the matter on remand, the appellant is free to submit additional evidence and argument on the remanded matter, and the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to the benefit
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sought); Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). The Court has held that “[a] remand is meant to entail a critical examination of the justification for the decision.” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed expeditiously, according to 38 U.S.C. § 7112 (requiring the Secretary to provide “expeditious treatment” of claims remanded by the Court).
III. CONCLUSION
After consideration of the appellant’s and Secretary’s briefs and a review of the record on appeal, the Board’s September 27, 2016, decision is VACATED and the matters REMANDED For further proceedings consistent with this decision.
DATED: June 28, 2018
Copies to:
Colin C. Carriere, Esq.
VA General Counsel (027)

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