Citation Nr: 18160087 Decision Date: 12/21/18 Archive Date: 12/21/18 DOCKET NO. 13-02 142 DATE: December 21, 2018 ORDER The appeal pertaining to the issue of entitlement to service connection for psychosis for the purpose of establishing eligibility for VA treatment is dismissed. FINDING OF FACT During his September 2015 Board hearing, prior to a promulgation of a decision in his appeal, the Veteran, through his representative, on the record explicitly, unambiguously, and with full understanding of the attendant consequences, requested withdrawal of his appeal seeking service connection for psychosis for the purpose of establishing eligibility for VA treatment; there is no question of fact or law in this matter remaining before the Board. CONCLUSION OF LAW The criteria for withdrawal of the appeal pertaining to the issue of entitlement to service connection for psychosis for the purpose of establishing eligibility for VA treatment by the Veteran through his representative have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1970 to June 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2014, the Board remanded the case so the Veteran could be afforded his requested Board hearing. In September 2014, he testified before a Veterans Law Judge other than the undersigned and, in September 2015, he testified before the undersigned. Transcripts of the hearings are of record. In three separately issued July 2017 decisions, the Board dismissed the instant claim, as well as those pertaining to entitlement to service connection for a psychiatric disability (other than depressive disorder), to include posttraumatic stress disorder (PTSD), a brain aneurysm, non-Hodgkin’s lymphoma, and peripheral neuropathy of the bilateral upper and lower extremities. In July 2018, the Veteran appealed the Board’s decisions to the United States Court of Appeals for Veterans Claims (Court), and the parties to the appeal subsequently entered into a Joint Motion for Partial Remand (Joint Motion), wherein the parties agreed that the Board’s analysis regarding the determination that the Veteran had withdrawn these claims was insufficient, necessitating a vacatur of the Boards decisions. The Court granted the Joint Motion in a July 2018 Order, and remanded the case to the Board for compliance therewith. In November 2018, the Board issued a decision dismissing the Veteran’s appeal pertaining to the issue of entitlement to service connection for a psychiatric disability (other than depressive disorder), to include PTSD, and in December 2018, the Board issued a decision dismissing the Veteran’s appeal pertaining to the issues of entitlement to service connection for a brain aneurysm, non-Hodgkin’s lymphoma, and peripheral neuropathy of the bilateral upper and lower extremities. The instant decision will address the remaining issue of entitlement to service connection for psychosis for the purposes of establishing eligibility for VA treatment. The Board also notes that a July 2017 decision remanded the claims for service connection for left ear hearing loss and tinnitus for additional development; however, such has not yet been completed and the issues have not yet been recertified to the Board. Therefore, the Board will not address them at the current time. Entitlement to service connection for psychosis for the purpose of establishing eligibility for VA treatment. 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. As referenced above, the parties to the July 2018 Joint Motion agreed that the Board’s July 2017 decision dismissing the instant claim 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 psychosis for the purpose of establishing eligibility for VA treatment. In this regard, during the September 2015 Board hearing, the undersigned alluded to a pre-hearing conference (off the record) during which the issues on appeal were discussed. On the record, the undersigned identified the instant claim, and stated that, prior to the hearing, the Veteran’s representative advised that the Veteran desired to withdraw this issue from appeal. The undersigned then asked the representative, in the presence of the Veteran, whether the Veteran’s withdrawal request was “correct,” and the representative’s response was that it “is correct.” The undersigned then “accept[ed] that [statement of the Veteran’s representative] as a withdrawal on the record,” noting the hearing would address the other identified issues that the Veteran was “pursu[ing].” At no point during the hearing thereafter was this withdrawn claim further discussed. Any reasonable reading of the transcript leads to the conclusion that the Veteran, through his representative, intended to withdraw his appeal pertaining to the issue of entitlement to service connection for psychosis for the purpose of establishing VA treatment. 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 this 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, as the undersigned did not explain, on the record, 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 this claim would result in the Board discontinuing its consideration of this claims 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 claims on appeal on the record at the hearing. The duties of a representative would have required explaining the meaning of claim withdrawals to the Veteran, and the effect of such a withdrawal on the future handling of the claims. 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 the instant claim. For example, after the September 2015 hearing, there is no evidence in the record that he attempted to present additional evidence relevant to this 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 the instant 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; rather, this case was returned to the Board because the parties are seeking a more detailed analysis of the explanation for finding that the Veteran had withdrawn his claim. As to the Veteran’s representative’s argument in December 2018 that the Veteran’s subsequent appeal to the Court, challenging the validity of the Board’s dismissal of this claim, is prima facie evidence that the Veteran’s withdrawal during his Board hearing was not valid, the Board finds the representative’s argument to be fallacious. By way of background, while a Veterans Service Organization (VSO) represented the Veteran during his initial Board appeal process, including during his Board hearings, an attorney represented the Veteran during his appeal of this matter to the Court, with the VSO representation resuming upon return of this appeal to the Board. Further, a VSO representative recently made the instant argument after reviewing the two other recent Board decisions concluding that the Veteran’s withdrawal of his appeal of other claims was valid. In this recent argument, the Veteran’s VSO representative (a different representative than the one who represented the Veteran during his Board hearing) asserts that these recent Board dismissals improperly failed to consider the Veteran’s subsequent Court appeal as establishing that the Veteran’s withdrawal during his Board hearing was not explicit, unambiguous, and with full understanding of the attendant consequences. However, per the representative’s argument, any claim withdrawn during a Board hearing would be subject to reinstatement if a Veteran initiates an appeal after a Board dismissal of the withdrawn claim, thereby making all withdrawals during Board hearings conditional and undermining the finality of related Board decisions. Moreover, the representative fails to acknowledge that the Veteran may have initiated the appeal, on the advice of counsel, after later determining that he should not have withdrawn his claims. However, the Board cannot anticipate such a future change of mind; therefore, the analysis for determining the validity of a withdrawal of an appeal during a Board hearing requires analysis as to whether the withdrawal was intentional, informed, and with the full understanding of its consequences, at the time it was made during the hearing. See Acree, 891 F.3d 1009. As set forth in detail above, the record fails to reflect any evidence to the contrary. The Board further acknowledges that the Veteran suffers from a psychiatric illness. He is service-connected for a 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 only 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 the Veteran was psychiatrically impaired at the time of he withdrew the instant claim at the September 2015 hearing. Furthermore, he did not appear at the hearing pro se, because his accredited representative from a VSO 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 the instant claim from appeal at the time of the September 2015 Board hearing. Thus, it can be reliably inferred that he was fully cognizant of the consequences of verbally withdrawing his claims at the 2015 hearing. After finding that the Veteran, through his authorized representative, has effectively withdrawn his appeal of his claim seeking service connection for psychosis for the purpose of establishing eligibility for VA treatment, 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 with regard to these claims. Accordingly, the Board does not have jurisdiction to review an appeal of this matter, and the appeal must be dismissed. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Nicole L. Northcutt, Counsel