Citation Nr: 21066434 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-24 040 DATE: November 1, 2021 ORDER The March 25, 2015 withdrawal of the claims of service connection for hearing loss and diverticulitis, and an increased rating for a back condition is valid. The Veteran's April 16, 2015 request to reinstate all issues withdrawn by the March 25, 2015 written withdrawal was not timely, and this appeal is dismissed. FINDINGS OF FACT 1. On March 25, 2015, the Regional Office (RO) received notification from the Veteran and his authorized representative that a withdrawal of all claims on appeal is requested 2. The withdrawal was knowing and intelligent and not the product of duress. 3. The Veteran's April 16, 2015 request to reinstate all appeal issues withdrawn by the March 25, 2015 written withdrawal was received after the appeal periods for the claims expired. CONCLUSIONS OF LAW 1. The criteria for dismissal of the claims of service connection for hearing loss and diverticulitis, and an increased rating for a back condition, have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55; 20.204 (2015). 2. As the Veteran's April 16, 2015 request to reinstate all claims was not timely, the criteria for reinstatement of the Veteran's withdrawn claims of service connection for hearing loss and diverticulitis, and an increased rating for a back condition, have not been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55; 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to March 1979; from June 1981 to June 1982 and from October 1982 to April 1983, with subsequent service in the Reserves. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing in November 2016 before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. In April 2019, the Board denied the Veteran's request for reinstatement of his claims, finding that the withdrawal was valid and the request for reinstatement was untimely. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Memorandum Decision, the Court found that the Board provided an inadequate statement of its reasons or bases for determining that the Veteran's written withdrawal was a knowing and voluntary waiver of his right to appeal and that he understood the full consequences of withdrawal. Thus, the Court vacated the Board's denial and remanded the matter to the Board. The Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Whether the March 2015 withdrawal is effective The Veteran seeks to reinstate an appeal of service connection for diverticulitis and hearing loss, and an increased rating for his back condition. While he acknowledges that he withdrew those claims in a March 2015 written request, he contends that he did not do so knowingly or voluntarily, and further, that his April 2015 request to reinstate the appeals should be honored. The issues on appeal at the time of the March 2015 correspondence were service connection for diverticulitis and hearing loss, and an increased rating for his back condition. Service connection for hearing loss and an increased rating for his back condition arose from a September 2011 rating decision. The Veteran filed a Notice of Disagreement (NOD) in September 2011, and the RO continued the denials in a January 2012 SOC. The Veteran perfected an appeal to the Board in February 2012. Service connection for diverticulitis was denied in a March 2012 rating decision and appealed in a July 2012 NOD. The RO continued the denial in a September 2013 SOC. 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. A written withdrawal must be in writing and include (1) the name of the Veteran or the name of the claimant or appellant if other than the Veteran, (2) the applicable VA file number, and (3) 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. § 19.55(b)(1). Here, the Veteran and his representative at the time, Disabled American Veterans (DAV), both submitted written correspondence on March 25, 2015 stated that the Veteran was "withdrawing all issues on appeal, and state[s] satisfaction with [the] current evaluation." Both letters were signed and dated March 25, 2015, the date they were received by the RO. At the time of the March 2015 correspondence, none of the appeals were transferred to the Board. Until the appeal is transferred to the Board, an appeal withdrawal is effective when received by the RO. 38 U.S.C. § 7105(b), (d); 38 C.F.R. § 19.55(b)(3). Accordingly, the withdrawal for the diverticulitis, hearing loss, and back condition claims was effective on March 25, 2015. However, the Veteran maintains that his withdrawal was not voluntary or knowing as he signed the withdrawal under duress and did not understand the consequences of the withdrawal. To this extent, the Court has instructed the Board to address whether the Veteran's withdrawal was effective pursuant to §§ 19.55, 20.204 considering fair and due process standards, and whether post-withdrawal evidence presented by the Veteran calls the propriety of the withdrawal into question. Due process requires notice of judicial disposition of a claim and an opportunity to respond. Prickett v. Nicholson, 20 Vet. App. 370, 382 (2006). Fair process, on the other hand, refers to procedural processes that may be required, where a statute or regulation is silent as to whether a particular procedural process is required, when viewed against the underlying concepts of procedural regularity and basic fair play of the VA benefits adjudicatory system. Prickett, 20 Vet. App. at 380; Thurber v. Brown, 5 Vet. App. 119, 123 (1993). The regulation at issue requires only that the written withdrawal adequately identify the Veteran and the claims being withdrawn. In this case, the written withdrawal conforms to those requirements. While the Board is sympathetic to the Veteran's claims, the Board is bound by the law and regulations. Indeed, had the Board or RO decided the appeals despite the effective withdraw, such a decision would have been a violation of due process by depriving the Veteran of choices in when and how he appeals VA decisions. Considering the underlying concepts of procedural regularity and basic fair play of the VA benefits adjudicatory system, it would be redundant and unnecessary to require the RO, upon receipt of the Veteran's own request to withdraw, to notify the Veteran of the withdrawal of the claim and allow him time to respond. Further, the regulation permits a Veteran to reinstate those appeals, and effectively rescind his withdrawal, if a new appeal is filed within the appeal period. Accordingly, the Board finds no deficiency in the fair or due process afforded the Veteran. Finally, the Court directed the Board to consider whether the post-withdrawal evidence in this case calls into question the voluntariness of the withdrawal. As an initial matter, the Board notes that the Court has not decided whether post-withdrawal evidence could call the effectiveness of a withdrawal into question. Hembree v. Wilkie, 33 Vet. App. 1, 8 (2020). Here, however, the Board finds there is no such evidence. The Veteran contends that he signed the withdrawal under duress and without a full understanding of the consequences of his action. The record does not reflect that the representative threatened the Veteran or otherwise forced him to sign the statement, nor has the Veteran made a specific allegation that he was forced to sign, threatened in any way, or subject to some similar form of constraint. This finding of fact by the Board is based on full consideration of the evidence of record, to include the evidence provided at the hearing before the undersigned. Rather, as reported by the Veteran's wife, the representative "consistently insisted" that the Veteran sign the form. In short, the evidence indicates that the Veteran retained the freedom to end the meeting with the representative without signing the statement of withdrawal. The Board further finds weighing against this contention that the withdrawal was under duress of his then representative is that the representative could affect the withdrawal himself. See 38 C.F.R. §§ 20.205 (2015). The Board finds that the representative's withdrawal authority under relevant regulation makes implausible that he would force the Veteran to do the action that he could effectuate himself. The Veteran argues that the fact that he took action to revoke the withdrawal within 24 hours shows the withdrawal was not voluntary. However, the record does not support this contention. Instead, the evidence shows that the Veteran appointed a new representative on April 16, 2015, approximately three weeks after the March 25, 2015 withdrawal. The appointment was then mailed to VA by the new representative on April 21, 2015. The Veteran's written statement explicitly seeking reinstatement of the claims was received the same day. To this end, the Board notes that the Veteran testified at the November 2016 Board hearing that it is possible that he either forgot to submit the reinstatement request, or forgot to talk to the new representative, until several weeks after the withdrawal. However, assuming either of these latter statements are accurate, they further serve to undermine the Veteran's contention that the situation caused him such distress that he immediately sought assistance in reversing his withdrawal. Finally, the Veteran contends that his representative erroneously told him that he risked a reduction in his benefits if he proceeded with the appeals. The Veteran's wife similarly testified at the November 2016 Board hearing. The Board observes that the Veteran has not contended that he relied on the claimed erroneous advice in signing the withdrawal. Rather, his contention is that he submitted the withdrawal because he felt like the representative did not want to represent him, and that he could not withstand the pressure. Further, the Veteran admits that he understood that withdrawal of the claim meant he could no longer pursue those benefits. The Veteran has contended that denial of reinstatement of the prior appeal is based on an overly technical and non-sympathetic consideration of the procedural history of this appeal. The Board re-emphasizes that its duty is to sympathetically read the law and regulations as it relates to the facts and procedural history of this appeal and it has done so in this case. The processing of appeals in compliance with the law and regulations requires that the Board, where appropriate, find that a timeline was missed or that a prior appeal choice was effective. Here, the consideration of this appeal requires application of these relevant laws and regulations and finds that the prior appeal was effectively withdrawn by the Veteran and his later contentions regarding this withdrawal are insufficient to find that this withdrawal was ineffective. The Board's consideration of the credibility and competence of evidence is not a reflection of a lack of sympathy but required, as outlined by relevant Court precedent, in the Board's role as the finder of fact. In short, the Veteran's contention that his withdrawal was not voluntary or knowing as he signed it under duress and without a full understanding of the consequences of his action is contrary to the preponderance of the evidence. The Board has also considered whether the Veteran's mental health disability prevented him from understanding the consequences of his withdrawal or withstand the pressure from his representative. In January 2013 the VA found the Veteran competent to manage his financial affairs. A December 2015 VA treatment note indicated the Veteran has had symptoms of hallucinations, delusions, and paranoia for the past five years. He also reported being impulsive, argumentative, and irritable. However, VA treatment records from January 2014 to June 2015 show that, while the Veteran struggled with poor sleep at times, periodic depression, and consistent irritability and anger, mental status examinations during that time were normal except for altered mood and affect. His thought processes, thought content, insight, judgment, and impulse control were noted to be within normal limits. Apart from one visit in April 2014, his short- and long-term memory were also noted to be intact. Additionally, in a June 2016 psychiatric VA examination, the examiner opined the Veteran was competent to manage his financial affairs. The Veteran was not deemed to be incompetent for VA purposes until January 2017. In short, the medical evidence of record shows that, while the Veteran experienced symptoms of his mental health conditions, the evidence does not reflect an inability to make decisions related to his compensation benefits at the time of the withdrawal. The evidence supports that the Veteran's choices during this time period were knowing and intelligent. Although the Veteran has a service -connected psychiatric disability, this did not prevent the Veteran from making choices in his appeal, and VA has honored and acknowledged these choices, to include later choices to file additional claims. The Board cannot find a basis for finding that the Veteran did not have the ability to file claims or later make choices regarding these same claims. In summary, the requirements of § 19.55 for an effective written withdrawal are met, and the Board finds no deficiency in the fair or due process afforded the Veteran or post-withdrawal evidence that the withdrawal was not voluntary or knowing. Whether the request for reinstatement was effective Finally, the Veteran contends his appeals should be reinstated based on his April 16, 2015 written request to do so. When the Veteran requested to "reinstate" his appeals, his withdrawal had already been effective for three weeks. VA regulations do not contain a mechanism for reinstating withdrawn appeals after an effective withdrawal has been received. The only option available is to file a new NOD or substantive appeal, provided that the appeal period has not expired. 38 C.F.R. § 19.55(c). Here, the appeal period for the hearing loss and back condition claims expired in September 2012, one year from the date of the rating decision, and the appeal period for the diverticulitis claim expired in November 2013, 60 days from the date of the SOC. See 38 U.S.C. § 7105(b)(1), (d)(3); 38 C.F.R. § 19.52(b). The Veteran's April 2015 request to reinstate the appeals was received well beyond the expiration of both appeal periods. Thus, the request to reinstate the appeals was untimely and the appeals remain withdrawn. Therefore, the Board finds the March 25, 2015 withdrawal is effective, and the Veteran's April 2015 correspondence requesting to reinstate the claims is untimely. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Nathaniel J. Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Blevins, Associate Counsel 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.