Episode 010: “No, I won’t give you my Debit Card PIN Number” (FCOA Precedent: Acree, #17-1749, Legal standard to withdraw an appeal orally at BVA)
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What is the Deep Issue in the Case?
VA regulations provide that a veteran’s “appeal may be withdrawn as to any or all issues involved in the appeal.” 38 C.F.R. § 20.204(a). 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].” DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011)
The BVA Hearing Officer asked the veteran if he was withdrawing seven of his eleven claims from the appeal. This is the extent of the conversation:
[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today, well there’s more issues certified than what we’re going to be discussing because some of the issues have been withdrawn. So let me address the issues that have been withdrawn first.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 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?
Can a single word answer at a BVA hearing cannot demonstrate a “full understanding of the consequences for withdrawal of a claim under 38 C.F.R. §20.204
What did the FCOA Decide?
The Federal Circuit found that “[b]ecause there has been no finding regarding whether Acree understood the consequences of withdrawing his claims, we remand his case for further development.Although the court correctly articulated the three-part DeLisio standard [internal citation omitted] 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”).
The VA had asserted, in oral argument that the Veterans Court properly applied that standard in a “flexible” manner. The Secretary also believed that an authorized representative could withdraw an appeal consistent with 38 C.F.R. § 20.204(a), which allows a veteran or a veteran’s “authorized representative may withdraw an appeal.”
The Federal Circuit was not persuaded.
They wrote: “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.”).
As to the argument that a veteran’s representative can withdraw an appeal, the Court called on the Secretary’s words in the notice and comment portion of 38 C.F.R. §20.204 which it found inconsistent with the Secretary’s position on appeal.
In doing so, it found that 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 veteran “is the one making the decisions” regarding claim withdrawal)
Takeaway Points for VSOs and Veterans Disability Lawyers:
1) It is common for BVA to convince veteran to withdraw an appeal.
It is very common for a BVA hearing officer to encourage a veteran to withdraw an appeal orally, in off-the-record discussions before the BVA hearing.
The BVA hearing officers frequently do this to reduce the number of issues they have to address, and although the veteran in this case was represented by a DAV veterans service representative at the BVA, they frequently do so when a veteran is pro-se.
VA Regional Offices often talk a veteran into withdrawing an appeal or claim as part of a horse-trade: we’ll grant you Claim X, if you withdraw an appeal for Claim Y. Because the veteran doesn’t know that Claim Y has the potential to provide much more in past-due and future benefits, he or she often agrees to withdraw an appeal. Most times, the VARO double-crosses the veteran, and declines the benefit under the non-withdrawn claim or appeal, leaving the veteran with nothing.
It is my position that you should never withdraw an appeal or claim, unless it is wholly frivolous and without legal merit. If you don’t know that to be the case, don’t withdraw. Make the VA and BVA do the work they are required to do.
It is also my position that these pre-hearing withdrawals actually constitute a pre-hearing conference, which I believe the BVA should record as part of its hearing. However, they do not, so there is often no record of why the appeal was withdrawn, or what the BVA hearing officer said to convince the veteran to withdraw an appeal.
We recommend that veterans make their own recording of the BVA pre-hearing conference, and have it transcribed and certified by a local court reporter. Such a transcription should be provided as part of the Record Before the Agency (RBA) at the Court of Appeals for Veterans Claims.
Attig | Steel has a current CAVC appeal considering this very question: when a pro-se veteran records the pre-hearing conference, and the BVA Hearing Officer persuades him to withdraw an issue on appeal, the recording and its transcription should be a part of the RBA. Ziminsky v. O’Rourke, CAVC #17-3807. Link to the CAVC Docket Sheet
It is worth noting that the CAVC currently has an appeal set for oral arguments addressing the Delisio standard relied upon by the Federal Circuit. Graham v. O’Rourke, CAVC #17-1519.
I’m not sure what will become of this appeal in light of the Federal circuit’s decision in Acree, but I will certainly keep you posted.
In the meantime, don’t withdraw anything at the BVA – most practitioners with less than 5 years experience have little idea of the consequences of their withdrawal – it takes at least that long to gain an understanding of the full scope of relief that may be available at the BVA, or legal issues that are changing in the landscape of veterans law.
If you find that the BVA withdrew your appeal based on some standard less than the 3 noted in the Delisio case, please contact Attig | Steel to inquire about possible representation at the Court of Appeals for Veterans Claims.
2) Informality of Proceedings at the BVA.
The Court’s adoption of the Delisio standard for verbal claim withdrawal drew heavily on the idea that the Veteran’s benefits system is “uniquely pro-claimant”. It looked to the Comer case for finding that the VA system is “not meant to be a trap for the unwary, or a strategem to deny compnsation to a veteran who has a valid claim.” Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009)
It found that adopting the Delisio standard served as 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.”).
These citations are significant: Comer, Henderson and Jaquay are key cases that underpin the pro-veteran canon: the idea that veterans benefits statutes are to be construed to inure to the veterans benefit.
To be clear, the Federal Circuit did not mention or cite to the pro-veteran canon. What it did, though, by citing these cases and reviewing the error of the CAVC was to reinforce the foundation that this system should be informal and simultaneously benefit the veteran.
The VA Secretary often believes that informality means something different than it does: that somehow, being informal means being flexible and not fully applying the law. Instead, what it means is that the veteran should not have to navigate a labyrinth, even while the VA is required to fully comply with the law.
More on this later, but I want you to think about the applicability of the pro-veteran canon as something more than a statutory construction tool.
In your cases, how could the VA’s strict application of a law, rule or regulation benefit your client, without requiring a high degree of formality from the veteran in the invoking of the law, or its application.
I’m being intentionally subtle here.
What I want you to think about – and reach out to me to discuss – are cases where a VA statute or regulation has a strict rule, but that strictness is being used to harm the veterans interest in prosecuting a claim or appeal. It is these cases which, I believe, can be used to help bolster the pro-veteran canon as a tool that goes far beyond a tool for statutory or regulatory interpretation.
Look to the language in this case, and think of scenarios where “it is unlikely to be unduly burdensome for the hearing officer to determine— either by questioning the representative or by contacting the veteran directly” to resolve a particular issue.
I have 2 or 3 specific scenarios in mind – what about you?
At the Federal Circuit:
Federal Circuit Court of Appeals Panel:
Circuit Judge Kathleen O’Malley (Opinion Author)(link to bio on Federal Circuit Court of Appeals website)
Circuit Judge Haldane Robert Mayer (link to bio on Federal Circuit Court of Appeals website)
Circuit Judge Richard G. Taranto (link to bio on Federal Circuit Court of Appeals website)
Veteran Representation at Federal Circuit: Natalie A. Bennett, (link to bio on website of law firm: McDermott, Will & Emery, LLP)
DOJ Attorney at Federal Circuit: Alexander Orlando Canizares (link to bio on Avvo)
Date of Decision: June 4, 2018
At the CAVC:
Judge Alan G. Lance, Sr. (CAVC Memorandum Decision Author) (link to bio on CAVC website)
OGC Attorney at CAVC: Joshua L. Wolinsky (on the briefs and merits)(link to bio on LinkedIn)
Date of CAVC Decision: January 30, 2017
At the BVA:
Regional Office: Louisville, Kentucky, VA Regional Office
Veterans VSO Rep at BVA: Disabled American Veterans (DAV)
Board of Veterans Appeals Veterans Law Judge: Milo H. Hawley
Date of Board Decision: November 20, 2014
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