Citation Nr: 21001397 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-21 054A DATE: January 7, 2021 ORDER 1. Entitlement to an initial compensable rating for erectile dysfunction (ED) is dismissed. 2. Entitlement to a rating higher than 30 percent for coronary artery disease (CAD), status post stent placement, is dismissed. 3. Entitlement to a rating higher than 20 percent for type II diabetes mellitus (DM II) is dismissed. FINDING OF FACT During his January 2019 videoconference hearing before the Board, so prior to the promulgation of a decision in the appeal, the Veteran’s representative clearly and unambiguously indicated the Veteran was withdrawing his appeal for higher disability ratings for his ED, CAD, and DM II. CONCLUSION OF LAW The criteria are met for withdrawal of this appeal by the appellant or his authorized representative. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to March 1972. The Veteran testified at a videoconference hearing in January 2019 before the undersigned Veterans Law Judge of the Board. A transcript of the hearing since has been associated with the claims file, so is of record. In a subsequent September 2019 decision, the Board dismissed the Veteran’s claims for increased ratings for his ED, CAD, and DM II. He then appealed that decision to the higher United States Court of Appeals for Veterans Claims (CAVC). In an Order dated August 7, 2020, the CAVC granted a Joint Motion for Remand (JMR), vacating the Board’s summary dismissal of these claims and remanding them back to the Board for further consideration – including especially more robust explanation of why these claims have been withdrawn and, consequently, may be summarily dismissed. To this end, the Board is now providing more reasons and bases for that conclusion. The Board has been tasked with addressing whether the oral withdrawal of these claims by the representative during the January 2019 videoconference hearing before the Board was “explicit, unambiguous, and done with a full understanding of the consequences of such action….” See DeLisio v. Shinseki, 25 Vet. App. 45 (2011). VA regulations provide that an appellant’s “appeal may be withdrawn as to any or all issues involved in the appeal.” 38 C.F.R. § 20.204(a) (2018); 38 C.F.R. § 20.205(a) (2019). “Only an appellant, or an appellant’s authorized representative, may withdraw an appeal.” 38 C.F.R. § 20.204(a) (2018); 38 C.F.R. § 20.205(a) (2019). In Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) found reasonable and adopted the standard for effective oral withdrawals at a hearing set forth in DeLisio. 891 F.3d at 1012-14. Under that standard, an oral statement by an appellant, or his or her authorized representative, at a Board hearing is an effective withdrawal of an appeal under 38 C.F.R. § 20.204 (2018) 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 claimant.” Id. at 57; Acree, 891 F.3d at 1012-13. The hearing since has been transcribed, so reduced to writing. See 38 C.F.R. § 20.204(b) (2016). Hearing testimony, once transcribed, can satisfy the requirement that a statement be “in writing”. See, e.g., Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993). The Court also conversely has held that a Board hearing transcript, even once transcribed, may not be recognized as a valid Notice of Disagreement (NOD). See Beyrle v. Brown, 9 Vet. App. 24 (1996) (indicating that hearing testimony before the Board would not be construed as a valid NOD and would not serve to trigger or initiate appellate review of a claim). Part of the apparent reasoning for making this critical distinction is that the NOD must be filed at the VA office (i.e., the local regional office (RO)) that denied the claims in question, or at whatever VA office that has assumed jurisdiction over the claims following, for example, the transfer of records. See 38 C.F.R. § 20.300. The January 2019 Board hearing transcript reflects that the undersigned Veterans Law Judge (VLJ) listed the eight claims that had been initially certified to the Board and stated that, “[h]owever, in a prehearing conference, the Veteran’s representative indicated that they’re withdrawing the claims for a higher rating for the [ED], also for the heart disease and for the underlying diabetes.” The undersigned VLJ then stated, “[s]o that leaves us with five of the eight initial claims remaining, those being for higher ratings for the upper and lower extremity, bilateral, neuropathy, and also, for the TDIU. All right?” While no response is indicated on the transcript, the record indicates the Veteran and his representative proceeded to then present oral testimony only concerning the five claims that had not been withdrawn (so, concerning the neuropathy of the upper and lower extremities and TDIU). Moreover, when they were done testifying, this presiding VLJ asked the representative and the Veteran whether they had anything else to add. Neither of them indicated, in response, they had anything additional or else to add – so, notably, including regarding the claims that had been indicated in the pre-hearing conference as being withdrawn.   Consequently, the Board concludes that this series of exchanges within the hearing transcript represents an effective withdrawal of the appeal concerning these three claims at issue according to 38 C.F.R. § 20.204 (2018) in that the withdrawal request was (1) “explicit”; (2) “unambiguous”; and (3) “done with a full understanding of the consequences of such action on the part of the claimant.” It was explicit in that it was clear to the VLJ that the Veteran, through his representative, intended to withdraw claims for higher ratings for the ED, CAD, and DM II during the pre-hearing conference, which the VLJ then unambiguously stated on the record. The Board distinguishes this fact pattern from other similar cases in that, here, the VLJ specifically articulated the claims being withdrawn. For example, in Isenbart v. Brown, 7 Vet. App. 537, 541 (1995), a Veteran was found to have not withdrawn a claim for a TDIU, even though he had stated at his "hearing that the issues were evaluation of his service-connected skin condition and peptic ulcer and service connection for a nervous condition and that there were 'no additional issues.'” Similarly, in DeLisio, a presiding Board member listed 15 matters that required adjudication and then asked the veteran if he "got the issues straight," to which the veteran responded that he "thought" so. In DeLisio, the CAVC found the hearing transcript reflected neither an explicit discussion of withdrawal nor any indication that the Veteran understood that he might be withdrawing claims for benefits for any disabilities not discussed. Id. This Veteran is this case at hand, however, had the benefit of representation at the hearing. And the representative, since accredited to represent Veterans in their VA claims, so including before this Board on appeal, presumably is versed in VA law and the consequences of withdrawing claims – including in the sense they consequently will be summarily dismissed. It is well settled that the need to ensure that a Veteran understands the consequences of claim withdrawal is particularly acute when 1) he suffers from psychiatric illness and 2) appears pro se before the Board, meaning unrepresented. See Comer v. Peake, 552 F.3d 1362 (D.C. 2009) (explaining that a veteran who "is afflicted with a significant psychological disability" may need additional assistance from the VA); see also Hankerson v. Harris, 636 F.2d 893, 895 (2d Cir. 1980) (explaining that when a claimant at an administrative hearing is "handicapped by lack of counsel" a reviewing court must make a greater effort "to ensure that the claimant's rights have been adequately protected."). But this was not the situation here. Although the Veteran is service connected for a psychiatric illness (PTSD), he was represented during his hearing by a private, non-attorney, representative. This means the Veteran was in receipt of private, individual, informed assistance in filing and pursuing his claims. And, as already discussed, the transcript makes clear mention of the representative’s specific request to withdraw the individually articulated issues of ED, CAD, and DM II during the pre-hearing conference. That withdrawal request was unambiguously articulated to the VLJ, who then, in turn, clearly repeated the withdrawal request on the record at the outset of the hearing (so once it begun) without any noted objections to the appeal being recharacterized to no longer include these specific claims. Moreover, when provided an additional opportunity to retract the withdrawal or present testimony on these withdrawn issues at the end of the hearing, both the Veteran and his representative, when questioned separately, indicated they had nothing more to add to the hearing testimony. Certainly then, taken together, the Board finds the VLJ’s clear articulation of the specific issues to be withdrawn, coupled with the Veteran and his representative’s declination to reengage on the issues that had been noted by the VLJ as withdrawn, constitutes an explicit and unambiguous request for withdrawal done with a full understanding of the consequences of such action on the part of the Veteran.   Consequently, the Veteran is found to have withdrawn his appeal of these claims and, hence, there remain no allegations of errors of fact or law for appellate consideration concerning these claims. Accordingly, the Board does not have jurisdiction to review the appeal of these claims and they are again dismissed. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.