Citation Nr: 1332753 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-17 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 2. Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure. 3. Entitlement to service connection for chronic renal disease, to include as due to herbicide exposure. 4. Entitlement to service connection for cardiovascular disease, to include as due to herbicide exposure. 5. Entitlement to service connection for hypertension, to include as due to herbicide exposure. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran (also referred to herein as 'appellant') had active military service from September 1965 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in North Little Rock, Arkansas. In October 2010, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record. However, the VLJ who presided at the hearing is no longer employed by the Board. In August 2013, the Board offered the Veteran an opportunity to appear before another VLJ. Later the same month, the Veteran noted that he did not wish to appear for another hearing and requested that the appeal be decided on the evidence of record. In October 2011, the Board denied service connection for gout and for a left knee disability and denied a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). The Board also dismissed the issues of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the right lower extremity, chronic renal disease, cardiovascular disease, and hypertension, to include as due to herbicide exposure (hereafter, the herbicide claims). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 Memorandum Decision, the Court affirmed that portion of the Board's October 2011 decision with regard to the issues pertaining to gout, the left knee, and PTSD. Therefore, these claims are no longer before the Board. The Court further vacated and remanded the dismissal of the herbicide claims. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. While such contains additional VA treatment records, such are irrelevant to the issues decided herein as this appeal turns on whether the Veteran has withdrawn the claims listed on the title page of this decision. Such also contains a September 2013 Court Post-Remand Brief from the Veteran's representative, which has been considered by the Board. In January 2011 and July 2011 statements, the Veteran raised the issues of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the right lower extremity, chronic renal disease, cardiovascular disease, and hypertension, which were previously denied in a final May 2009 rating decision. The Board notes that the RO granted service connection for diabetes mellitus in October 2013 rating decision and, therefore, such issue is fully resolved. However, as the four other issues have been raised by the record, but have not been adjudicated by the agency of original jurisdiction (AOJ), they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. On October 26, 2010, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, in writing and orally at a Board hearing, that he wished to withdraw his appeal as to the issues of entitlement to service connection for diabetes mellitus, peripheral neuropathy of the right lower extremity, chronic renal disease, cardiovascular disease, and hypertension, to include as due to herbicide exposure. 2. The Veteran's October 2010 withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. 3. The Veteran's written statements dated in January 2011 and July 2011 do not constitute a new and timely Notice of Disagreement with the May 2009 rating decision so as to reinstate the appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant regarding the issue of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.302, 20.204 (2013). 2. The criteria for withdrawal of an appeal by the appellant regarding the issue of entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to herbicide exposure, are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.302, 20.204 (2013). 3. The criteria for withdrawal of an appeal by the appellant regarding the issue of entitlement to service connection for chronic renal disease, to include as due to herbicide exposure, are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.302, 20.204 (2013). 4. The criteria for withdrawal of an appeal by the appellant regarding the issue of entitlement to service connection for cardiovascular disease, to include as due to herbicide exposure, are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.302, 20.204 (2013). 5. The criteria for withdrawal of an appeal by the appellant regarding the issue of entitlement to service connection for hypertension, to include as due to herbicide exposure, are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.302, 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this case, the RO provided notice in December 2008 and assisted the Veteran in the development of evidence to substantiate his claims. The Board need not now address the adequacy of the notice and assistance because the dispositive issues are whether the Veteran and his representative properly withdrew the appeal of the above captioned issues and whether he reinstated the appeal at a later date. In March 2013, the Court vacated an October 2011 Board decision that dismissed the Veteran's claims of entitlement to service connection for diabetes mellitus, peripheral neuropathy, chronic renal disease, cardiovascular disease, and hypertension. The Court remanded the claims so as to allow the Board to provide adequate reasons and bases for the dismissal. In August 2013, the Board provided a notice and the opportunity for the Veteran and his representative to submit additional evidence or argument. In correspondence later that month, the Veteran noted that he did not wish to appear at a hearing or submit additional evidence or argument. The representative's September 2013 Court Post-Remand Brief has been associated with Virtual VA and has been considered. Therefore, the Board concludes that VA has provided adequate notice and assistance with respect to the factual issue relevant to the withdrawal and reinstatement of the appeal. Moreover, following a determination on the facts, the claims are being dismissed as a matter of law, and no further development is necessary. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matters and could have no application as a matter of law); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the operation of law is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefits sought). In statements in January 2011 and July 2011, the Veteran asserted that he never desired or requested the withdrawal of his service connection claims and that they were wrongfully withdrawn by his representative. He requested the continuation of his appeal of the five herbicide claims captioned above. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). The Secretary has specifically provided procedures for a withdrawal of an entire appeal or issues within an appeal. Evans v. Shinseki, 25 Vet. App. 7, 15 (2011). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204; see Anderson v. Brown, 9 Vet. App. 542, 547 (1996). Appeals may be withdrawn on the record at a hearing or in writing if the writing contains certain information including the Veteran's name, file number, statement that the appeal entirely or a list of the issues is withdrawn. 38 C.F.R. § 20.204 (b). With respect to withdrawal of claims generally, the Board notes that "withdrawal of a claim is only effective where the withdrawal 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) (citing Hanson v. Brown, 9 Vet. App. 29, 32 (1996)); see also Isenbart v. Brown 7 Vet. App. 537 (1995). Veterans are as free to withdraw claims as they are to file them. When claims are withdrawn, they cease to exist. Hanson at 32. In addition, the Board notes that a withdrawal is effective upon receipt of the request. 38 C.F.R. § 20.204(b)(2). Withdrawal of an appeal will be deemed as a withdrawal of the Notice of Disagreement, and if filed, the Substantive Appeal, as to the issues to which the 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 filing would be timely under these rules if the appeal withdrawn had never been filed. 38 C.F.R. § 20.204(c). A Notice of Disagreement must be filed or new and material evidence submitted within one year of the date that the Agency of Original Jurisdiction mails a letter of notification of the determination to the claimant. 38 C.F.R. § 20.302. In May 2009, the RO denied service connection for the five herbicide claims. The Veteran expressed timely disagreement later the same month. The RO issued a statement of the case in April 2010, and the Veteran perfected a timely appeal in May 2010. At that time, he requested a Board videoconference hearing. At a Board hearing on October 26, 2010, the Veteran and his representative in both written correspondence and under oath at the hearing withdrew appeals as to the five herbicide claims. The VLJ referred to a pre-hearing discussion and in response to a question, the representative stated, "Yes sir, the following issues that we're going to withdraw would be the service connection for diabetes; service connection for peripheral neuropathy, right lower extremity; service connection for chronic renal disease; service connection for cardiovascular disease; and service connection for hypertension." The VLJ then asked the Veteran, "Do you agree, Mr. [Veteran]?" The Veteran answered, "Yes sir." The testimony then moved directly to other issues. At the conclusion of the hearing, the VLJ provided the Veteran another opportunity for additional testimony. Neither the Veteran nor the representative provided additional evidence relevant to the five herbicide claims. The same day, VA received two documents, one signed by Veteran and one signed by his representative. Both contained the Veteran's name and file number. The Veteran noted, "Please consider this as my official notice to with draw (sic) the following issue (sic) from my appeal." The Veteran individually listed the five herbicide claims as stated at the hearing. The same representative who appeared at the hearing noted in a separate document, "The Veteran request to withdraw the following issues from his BVA appeal." He listed the same five herbicide claims as stated at the hearing. In a January 2011 written statement, the Veteran noted that he "...does not request to withdraw the following service connection issues from his appeal..." He then listed the same five herbicide claims. He did not challenge his oral or written statements made in October 2010 as inaccurate or the result of confusion, misinformation, or duress, but rather simply expressed a reversal of his request. In a July 2011 written statement, the Veteran noted, "...Claimant/appellant never desired or requested a withdrawal of his service connection claims which are on appeal before the Board which [the representative] wrongfully alluded to...Claimant/appellant is confirming by affirmation that he is not withdrawing his service connection claims for these appealing issues." He listed the five herbicide claims. In October 2011, the Board, in part, dismissed the appeal of the five herbicide claims because the Veteran withdrew the claims under oath on the hearing record and in writing. In March 2013, the Court vacated and remanded that portion of the decision because the Board did not provide adequate reasons and bases as to why the Veteran's February 2011 and July 2011 statements disavowing his prior withdrawals were insufficient or otherwise incapable or reinstating his withdrawn claims or render moot his previous statement of withdrawal. The Board finds that the Veteran withdrew his appeals in October 2010, and that his subsequent statements made more than three months later do not reinstate the appeals. The Board finds that the oral testimony on the hearing record and the written statements received the same day are explicit and unambiguous. The Veteran made the statements under oath before a VLJ and in the presence of his accredited representative. His statements were clear and directly addressed the withdrawal of the specifically listed claims. The subsequent written statements affirming such withdrawal contained the required information. The Veteran had the opportunity before and during the hearing to ask questions or otherwise indicate that he did not understand the consequences of his action. Moreover, in his January 2011 reversal, he did not controvert his statements but only expressed a change of mind. Moreover, the Board finds that the Veteran's later contentions in the July 2011 statement that the withdrawal was made wrongfully by his representative are not credible as the Veteran both orally and in writing in October 2010 clearly and personally expressed his desire to withdraw the appeals. The Veteran has not provided any explanation how his representative acted wrongly or why he did not understand the consequences of his actions at that time. The Board further finds that the Veteran's requests in February 2011 and July 2011to reinstate his appeal are not effective in establishing a new Notice of Disagreement with the May 2009 rating decision because they were not made or received within one year of the rating decision and, therefore, are not timely. However, as noted in the Introduction, such statements can serve as requests to reopen such previously denied claims and, therefore, have been referred to the AOJ for appropriate action. The Board concludes that the Veteran's oral and written withdrawals of the appeal were made freely and unambiguously and were effective on receipt on October 26, 2010. His statements in February 2011 and July 2011 were not timely to establish a new Notice of Disagreement. Therefore, as a matter of law, the appeals must be dismissed. ORDER The appeal pertaining to the claim of entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is dismissed. The appeal pertaining to the claim of entitlement to service connection for peripheral neuropathy (right lower extremity), to include as due to herbicide exposure, is dismissed. The appeal pertaining to the claim of entitlement to service connection for chronic renal disease, to include as due to herbicide exposure, is dismissed. The appeal pertaining to the claim of entitlement to service connection for cardiovascular disease, to include as due to herbicide exposure, is dismissed. The appeal pertaining to the claim of entitlement to service connection for hypertension, to include as due to herbicide exposure, is dismissed. ____________________________________________ A. JAEGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs