Citation Nr: 21030520 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-20 739 DATE: May 19, 2021 ORDER The appeal seeking service connection for a hand disorder, to include Dupuytren's contracture, myeloproliferative disease of the palmar fascia, and arthritis, to include secondary to diabetes, is dismissed. FINDING OF FACT In January 2020, prior to the promulgation of a decision in the appeal, the Veteran requested that his appeal be withdrawn. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1967 to August 1971, including foreign service in the Republic of Vietnam. For his meritorious service, he was awarded (among other decorations) the Vietnam Service Medal and Vietnam Campaign Medal. This appeal was previously remanded by the Board in February 2019 for additional development. See Stegall v. West, 11 Vet. App. 268, 271 (1998). At that time, the Board requested that any outstanding VA treatment records be obtained and associated with the claims file. Such action was subsequently completed. Id.; see also VA treatment records obtained in March 2019, November 2019, December 2019, and May 2020. Further, it was instructed that the Veteran provide all necessary authorizations for VA to obtain any pertinent private treatment records since February 2014. The necessary authorizations were requested from the Veteran in March 2019 and December 2019; he has not responded to date. Stegall, 11 Vet. App. at 271; see also Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (participation in the VA process is a "two-way street"). Finally, it was instructed that a VA examination be provided to assess the nature of the claimed disorder and its potential direct or secondary nexuses. The record establishes that the VA examination was first requested in March 2019; however, this examination was cancelled because the necessary specialist was not available at the scheduled facility. Although a new examination was scheduled for May 2019, the Veteran contacted VA that same month to report that he was unavailable for the scheduled date. He requested that a new examination be scheduled at that time. The new examination was scheduled for November 2019. This examination was cancelled at the Veteran's request. At that time, he indicated that he no longer wanted to participate in the requested examination. Rather, the Veteran contacted VA in January 2020 and stated that he "no longer wanted to continue with his appeal for [a] hand disorder." He was advised that his withdrawal should be offered in writing, and provided with multiple options for effectuating his withdrawal. He did not subsequently provide such statement to VA; rather, an Informal Hearing Presentation (IHP) was obtained from his representative in April 2021. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 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. Withdrawal may be made by the appellant or by his authorized representative. See 38 C.F.R. § 19.55. Except for appeals withdrawn on the record at a hearing, withdrawal of an issue must be offered in writing. See 38 C.F.R. § 19.55. In assessing the totality of the circumstances here, it is found that the Veteran has effectuated a valid withdrawal of this appeal. In offering this finding, the Board acknowledges that the Veteran's withdrawal was not provided in writing. However, the Court of Appeals for Veterans Claims (Court) has indicated that an oral withdrawal is valid if it is (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 5758 (2011). Although these criteria typically apply to oral withdrawals offered during a hearing, the Board finds that they have otherwise been satisfied in this case. During the January 2020 phone call with VA, the Veteran's desire to withdraw the pending appeal was both explicit and unambiguous. There is no evidence that the Veteran's request was offered without a full understanding as to the consequences of such action; rather, he was clearly counseled during the January 2020 phone call, which was subsequently memorialized in writing by a VA representative. If it were only this phone call supporting the idea that the Veteran wished to withdraw his claim, the Board may reach a different conclusion. However, this phone call withdrawal must be read in concert with the rest of the Veteran's actions since the Board's previous remand. In doing so, the Board finds that the Veteran has repeatedly and unequivocally declined to participate in the adjudication process following the February 2019 remand. Despite multiple efforts by VA, the Veteran has not provided the necessary authorizations to allow for his private treatment records to be obtained. See VA letters dated March 2019 and December 2019. Critically, the February 2019 remand also found that the current body of evidence, to include multiple VA opinions, was inadequate upon which to assess the merits of the appeal. Nonetheless, the Veteran has refused to participate in the examination process, reporting in November 2019 that he "no longer wants this exam [and] would not schedule [the] appointment." He has offered no good cause for his failure to appear, nor undertaken subsequent efforts to participate in the requested examination. See 38 C.F.R. § 3.655 (holding that when a veteran fails to appear for a VA examination, absent a showing of good cause, an original compensation claim shall be rated based on the evidence of record). As the Board previously determined that a VA opinion was necessary in this case, the Veteran's prolonged refusal to participate further buttresses the Board's finding that the Veteran does not wish to proceed with his claim. Finally, the Board acknowledges that the Veteran's representative submitted an IHP after his January 2020 contact with VA. However, the withdrawal of an appeal is effective when received. 38 C.F.R. § 19.55. Here, the Veteran's withdrawal was provided prior to the representative's IHP. In sum, the criteria for a valid withdrawal have been met in this case. The Veteran's January 2020 communication was explicit, unambiguous, and memorialized in writing by a VA representative. There is no evidence that the Veteran does not understand the consequences of such a request; in this particular case, there is no negative impact on the Veteran, who is in receipt of the maximum combined evaluation during the entire period on appeal. Critically, the Veteran has categorically refused to participate in the adjudication process following his withdrawal, to include a VA examination which is necessary upon which to assess the merits of this appeal. Thus, the Board finds the criteria for a withdrawal to be satisfied, and there is no good cause for an alternate determination in this case. [CONTINUED ON NEXT PAGE] There remain no allegations of errors of fact or law for appellate consideration with respect to this matter. Accordingly, the Board does not have jurisdiction to review this appeal and it is hereby dismissed. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.