Citation Nr: 1318389 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-26 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether reinstatement of the appeal for a rating higher than 30 percent prior to July 19, 1994 for major depressive disorder with psychotic features was timely received. 2. Whether reinstatement of the appeal for an effective date earlier than July 19, 1994 for a grant of an evaluation of a 100 percent rating for major depressive disorder with psychotic features was timely received. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from January 1972 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran appealed that decision to the Board, and the case was referred to the Board for appellate review. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal. FINDINGS OF FACT 1. In May 2007, the Veteran submitted the Appeal Status Election Form in response to the May 2007 Supplemental Statement of the Case on which he checked that he did not wish to pursue his appeal further and requested that his appeal be withdrawn. 2. The May 2007 withdrawal by the Veteran is valid. 3. Neither the Veteran nor his representative submitted a timely request to reinstate the withdrawn appeal, and he cannot revoke his withdrawal of the appeal. CONCLUSION OF LAW The criteria for reinstatement of the Veteran's withdrawn appeal for a rating higher than 30 percent prior to July 19, 1994 for major depressive disorder with psychotic features and an effective date earlier than July 19, 1994 for a grant of an evaluation of a 100 percent rating for major depressive disorder with psychotic features have not been met. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 , 20.302, 20.305 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. The U. S. Court of Appeals for Veterans Claims has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, the VCAA is not applicable. Regardless our duty owed to the Veteran has been met. The Veteran has been provided with the regulations governing the withdrawal of an appeal. He was afforded the opportunity to submit additional evidence and testify at a Board hearing, which he declined. Legal Criteria Pursuant to 38 C.F.R. § 20.204, an appeal to the Board may be withdrawn as to any or all issues involved in the appeal. Except for appeals withdrawn at a VA hearing, all withdrawals "must be in writing [, and they] must include the name of the veteran[,] ... 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." 38 C.F.R. § 20.204(b); Kalman v. Principi, 18 Vet. App. 522, 524-25 (citing 38 C.F.R. § 20.204 and stating that submission by an appellant must be read in context to determine whether a submission constitutes a withdrawal of an appeal). When an appeal is withdrawn, the Board is under no obligation to further adjudicate the appeal. Hanson v. Brown, 9 Vet. App. 29, 32 (1996) ("When claims are withdrawn, they cease to exist."). Furthermore, withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which withdrawal applies. 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. 38 C.F. R. § 20.204(c). Analysis By way of procedural history, a confirmed rating decision in January 1992 continued a 30 percent rating for depressive neurosis. The Veteran filed a notice of disagreement in February 1992, a Statement of the Case was issued in March 1992 and a Substantive Appeal was timely received in March 1992. As for the Veteran's claim for an effective date earlier than July 19, 1994 for a grant of an evaluation of a 100 percent rating for major depressive disorder with psychotic features, a rating decision in June 1999 granted a 100 percent rating for major depressive disorder with psychotic features effective July 19, 1994. In October 1999 the Veteran filed a notice of disagreement with the effective date, a Statement of the Case was issued in November 1999, and a Substantive Appeal was timely received in March 2000. In May 2007, a Supplemental Statement of the Case (SSOC) was issued regarding the issues of entitlement to a rating higher than 30 percent prior to July 19, 1994 for major depressive disorder with psychotic features and an effective date earlier than July 19, 1994 for a grant of an evaluation of a 100 percent rating for major depressive disorder with psychotic features. An Appeal Status Election Form was attached to the SSOC. In May 2007, the Veteran signed the Appeal Status Election Form and checked the box indicating "I do not wish to pursue may appeal further. Please withdraw my appeal." In November 2007, the Veteran submitted a statement indicating that his May 2007 withdrawal of his appeal was submitted in error and he wished to continue his appeal and have it forwarded to the Board. In March 2008 and May 2009 the Veteran contended that his withdrawal was a clerical error. Thus the Veteran's appeal for a higher rating and earlier effective date for his major depressive disorder arises from his disagreement with rating decisions dated in January 1992 and June 1999. As the May 2007 withdrawal was submitted well after one year of the rating decisions and more than 60 days of the Statement of the Case dated in March 1992 and November 1999, the November 2007 reinstatement of the appeal pursuant to 38 C.F.R. § 20.204(c) is not an available remedy to the Veteran because any new Notice of Disagreement and Substantive Appeal would not have been timely as to the rating decision dated in January 1992 and June 1999. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302. (The claimant has one year from notification of a RO decision to initiate an appeal by filing a Notice of Disagreement; the claimant has one year from notification of a RO decision or 60 days from the date of the Statement of the Case to file a Substantive Appeal. Thus, the Veteran's appeal cannot be reinstated pursuant to 38 C.F. R. § 20.204(c). As to whether the Veteran's May 2007 withdrawal was a valid withdrawal of his appeal for a rating higher than 30 percent prior to July 19, 1994 for major depressive disorder with psychotic features and an effective date earlier than July 19, 1994 for a grant of an evaluation of a 100 percent rating for major depressive disorder with psychotic features, the form signed by the Veteran was sent to him with the May 2007 SSOC that listed both these issues. As the form was sent with the SSOC, the Board finds the form cannot be interpreted without consideration of the SSOC. Thus, when taking into consideration the fact that the Veteran failed to indicate a specific issue he wished to withdraw in submitting the form responding to the SSOC, the Board finds that the only reasonable interpretation is that the Veteran intended to withdraw both issues presented in the May 2007 SSOC. In addition, the record demonstrates that the Veteran was not a stranger to the Appeal Status Election Form he submitted his withdrawal on as he had previously completed it twice in September 2005 and January 2006 and requested his appeal be sent to the Board. Thus, this evidence shows the Veteran had actual knowledge of this form and its intended purpose and, by completing it in the manner he did, shows he knowingly intended to withdraw his appeal. Consideration of this evidence is appropriate as it goes to the Veteran's actual knowledge of what he signed, which he has disputed. See Hanson, 9 Vet. App. at 31-32 (the Board may consider all evidence available to it germane to the issue of withdrawal). Finally, the Veteran did not submit any statement with respect to the May 2007 withdrawal of his appeal between the submission of the withdrawal and the November 2007 statement attempting to reinstate his appeal. The cover letter to the May 2007 SSOC advised the Veteran that he had 60 days to submit additional evidence. He attempted to reinstate his appeal in November 2007, which is beyond 60 days from the May 2007 SSOC. The Board further notes that the Veteran's November 2007 request to reinstate the appeal was submitted 5 months after he submitted his withdrawal. Consequently, the Board finds that, based on all of the circumstances, the Veteran did, in fact, intentionally withdraw his appeal for a rating higher than 30 percent prior to July 19, 1994 for major depressive disorder with psychotic features and an effective date earlier than July 19, 1994 for a grant of an evaluation of a 100 percent rating for major depressive disorder with psychotic features. He withdrew his claim in May 2007 in response to the May 2007 SSOC. The Veteran's actions and the content and form of his request for withdrawal meet the requirements of 38 C.F.R. § 20.204(b). The Board finds, therefore, that reinstatement of the Veteran's appeal for a rating higher than 30 percent prior to July 19, 1994 for major depressive disorder with psychotic features and an effective date earlier than July 19, 1994 for a grant of an evaluation of a 100 percent rating for major depressive disorder with psychotic features is not appropriate, and his appeal is denied. In reaching this decision, the Board also notes that the law, not the facts of this appeal, are outcome determinative. Therefore, the Veteran's claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Reinstatement of the appeal for a rating higher than 30 percent prior to July 19, 1994 for major depressive disorder with psychotic features was not timely received. Reinstatement of the appeal for an effective date earlier than July 19, 1994 for a grant of an evaluation of a 100 percent rating for major depressive disorder with psychotic features was not timely received. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs