Citation Nr: 18148426 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 13-02 142 DATE: November 7, 2018 ORDER The appeal seeking service connection for a psychiatric disability (other than depressive disorder) to include posttraumatic stress disorder (PTSD) is dismissed. FINDING OF FACT At the time of his Board hearing in September 2015, prior to the promulgation of a decision in the appeal, the Veteran, through his authorized representative, on the record explicitly, unambiguously, and with full understanding of its consequences requested withdrawal of his appeal seeking service connection for a psychiatric disability (other than depressive disorder) to include PTSD; there is no question of fact or law in this matter remaining before the Board. CONCLUSION OF LAW Regarding the claim of service connection for a psychiatric disability (other than depressive disorder) to include PTSD, the criteria for withdrawal of an appeal by the Veteran (or his authorized representative) are met; the Board has no further jurisdiction in this matter. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION 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. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. By way of background, the appellant is a Veteran who served on active duty from August 1970 to June 1974. This matter came to the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned in September 2014, and provided testimony on the sole issue of service connection for a psychiatric disability (other than depressive disorder) to include PTSD. A transcript of the September 2014 hearing is of record. The Veteran had also perfected other appeals regarding various service connection claims to the Board, and in September 2015 he appeared at another Board hearing before a Veterans Law Judge other than the undersigned. At that hearing, on the record, the Veteran through his representative requested withdrawal of his appeal seeking service connection for a psychiatric disability (other than depressive disorder) to include PTSD. A transcript of the September 2015 hearing is of record. Based on the testimony at the September 2015 hearing, the undersigned in a July 2017 Board decision dismissed the appeal seeking service connection for a psychiatric disability (other than depressive disorder) to include PTSD. The Veteran appealed that decision (as well as two other July 2017 Board decisions by the Veterans Law Judge who conducted the September 2015 hearing) to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2018 Order, the CAVC granted a July 2018 Joint Motion for Partial Remand (Joint Motion) of the parties, thereby vacating all three Board decisions of July 2017, in part, to the extent that appealed issues were dismissed by the undersigned and the other Veterans Law Judge, and remanding the matters to the Board for action consistent with the Joint Motion. [Regarding the issues remanded by the CAVC that were addressed by the other Veterans Law Judge, those matters will be the subject of separate Board decisions.] The parties in the July 2018 Joint Motion agreed that the Board’s July 2017 decision by the undersigned contained inadequate reasons and bases. Specifically, it was found that the Board’s explanation as to whether the Veteran withdrew his appeals at the September 2015 hearing was “incomplete” and necessitated “a more detailed analysis,” particularly in light of Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018) and DeLisio v. Shinseki, 25 Vet. App. 45 (2011), which set forth the standard for verbally withdrawing an appeal at a Board hearing under 38 C.F.R. § 20.204(b)(1). That is, a withdrawal must be “explicit, unambiguous, and undertaken with a full understanding of its consequences.” Acree, 891 F.3d at 1013; DeLisio, 25 Vet. App. at 57. The Board now re-visits the matter of the validity of the verbal withdrawal of the appeal at the September 2015 hearing, and finds that the Veteran, through his authorized representative, on the record explicitly, unambiguously, and with full understanding of its consequences requested withdrawal of his appeal seeking service connection for a psychiatric disability (other than depressive disorder) to include PTSD. In reviewing the September 2015 Board hearing transcript, the Veterans Law Judge conducting the hearing alluded to a pre-hearing conference (off the record) during which the issues on appeal were discussed. On the record, she identified one of those appealed issues was the claim of service connection for a psychiatric disability (other than depressive disorder) to include PTSD, and stated that she had been advised that prior to the hearing by the Veteran’s representative that the Veteran desired to withdraw that particular issue from appeal. She then asked the representative, in the presence of the Veteran, whether the Veteran’s withdrawal request was “correct,” and his response was that it “is correct.” The Veterans Law Judge then asserted that she would “accept that [statement of the Veteran’s representative] as a withdrawal on the record” and that they would “pursue” other identified issues. The psychiatric claim to include PTSD was not thereafter discussed at the hearing. Any reasonable reading of the transcript leads to the conclusion that the Veteran through his representative desired to withdraw from appeal his claim of service connection for a psychiatric disability (other than depressive disorder) to include PTSD. The issue was clearly identified by the attendants at the hearing, including the Veteran’s authorized representative, and the Veteran through his representative unequivocally expressed his desire to have that issue withdrawn from appeal. The plain language of the hearing testimony shows the Veteran’s intention in this regard, and it cannot be said that the verbal withdrawal was anything but explicit and unambiguous. The third and final prong of the standard for a valid verbal appeal withdrawal is that it must be made “with full understanding of its consequences.” This condition is not as explicitly shown by the record, because the Veterans Law Judge did not on the record explain the effect of the appeal withdrawal or ask the Veteran if he understood the effect of the appeal withdrawal. Nevertheless, it can be inferred that the Veteran knew that his withdrawal of the appeal would result in the Board discontinuing its consideration of the claim without issuing a decision on the matter. It is significant that the withdrawal was made through the Veteran’s representative, who may be presumed to know the impact of requesting an appeal withdrawal before the Board and who in all likelihood discussed this with the Veteran. While the transcript does not reflect the details of such a discussion between the Veteran and his representative, it is known that the matter was broached at a pre-hearing conference and that a decision had been reached about withdrawing the claim on appeal on the record at the hearing. The duties of a representative would have required him to explain the meaning of claim withdrawals with the Veteran and the effect of such a withdrawal on the future handling of the claim. There is also no evidence of record to show that the Veteran did not have full understanding of the claim withdrawal consequences. The hearing transcript did not indicate that he expressed any doubts or misunderstandings about what would happen to his psychiatric disability claim. For example, after the September 2015 hearing, there is no evidence in the record that he attempted to present additional evidence on his psychiatric disability claim, which would reflect confusion over whether the claim was still in appellate status. Even after he was furnished documents in his claims file in October 2016, in response to his February 2016 Privacy Act request, he did not thereafter evince a belief that his psychiatric disability claim was still being actively considered, such as by submitting additional evidence or argument on the matter. The July 2018 Joint Motion of the parties also does not assert that the Veteran was ignorant of the effect of the claim withdrawal at the September 2015 hearing; this case is back before the Board because the parties are seeking a more detailed analysis of the explanation for finding that the Veteran had withdrawn his claim. The Board acknowledges that the Veteran suffers from a psychiatric illness. He already has a service-connected psychiatric disability, namely, persistent depressive disorder with cognitive impairment as secondary to Parkinson’s disease, which was increased from a 0 percent rating to a 50 percent rating effective in September 17, 2015, based on depressed mood, disturbances of motivation and mood, mild memory loss, chronic sleep impairment, and occupational and social impairment with reduced reliability and productivity. However, in reviewing the medical records surrounding the time of the September 2014 and September 2015 hearings, it is observed that there was mild cognitive impairment and no sign of psychosis, and the Veteran was not taking any psychotropic medications. Given this mental status presentation, it may not be assumed that he was psychiatrically impaired at the time of his claim withdrawal at the September 2015 hearing. Furthermore, he did not appear at the hearing pro se, because his accredited representative from a Veterans Service Organization was in attendance to assist him in his testimony and to provide guidance with reasoned decision-making as to the appealed claims he was pursuing and those he desired to withdraw on the record. In short, the totality of the evidence demonstrates that the Veteran did not inadvertently or unintentionally withdraw his psychiatric disability claim from appeal at the time of the September 2015 Board hearing. It can be reliably inferred that he was fully cognizant of the consequences of verbally withdrawing his claim at the 2015 hearing. After finding that the Veteran, through his authorized representative, has effectively withdrawn his appeal seeking service connection for a psychiatric disability (other than depressive disorder) to include PTSD, in compliance with the particular requirements set forth in Acree and DeLisio, the Board concludes that there remain no allegations of errors of fact or law for appellate consideration on the claim. Accordingly, the Board does not have jurisdiction to review an appeal in the matter, and the appeal must be dismissed. M. H. Hawley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel