Client Win: CAVC No. 19-2012 (Veterans Court rejects VA Office of General Counsel arguments that the veteran withdrew his appeals)
This case involves the Court's rejection of VA Office of General Counsel arguments regarding the legal standard for withdrawing a claim before the VA Agency of Original Jurisdiction (AOJ) or the BVA.
The BVA construed a statement that "I wish to withdraw my appeal and request for video conference" was a withdrawal for multiple issues on appeal. The Veterans Court reversed the BVA, finding that it violated the law by withdrawing all of the veteran's claims and appeals.
ISSUE ON APPEAL TO THE CAVC (Veterans Court rejects VA Office of General Counsel arguments that the veteran withdrew his appeals).
In this case, the question before the Court was whether the BVA's decision that he withdrew his sleep apnea and muscle disability ratings was lawful. The VA's own regulations provide that "[i]f the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal." 38 C.F.R. §20.205(b)(1).
In a rare exercise of power, the Veterans Court reversed the BVA's dismissal of the veteran's appeals and remanded them to the BVA to adjudicate on the merits.
RESOLUTION AT THE CAVC.
To withdraw a claim or appeal, a veteran must meet certain requirements. 38 C.F.R. §20.205(b)(1); Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). The veteran's withdrawal must include the veteran's name, file number, and a statement that the appeal is withdrawn. 38 C.F.R. §20.205(b)(1). If there are multiple issues in the appeal, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issues withdrawn from the appeal. Id.
The above requirements are for a written withdrawal. The crux of the Court's analysis of the validity of a withdrawal is whether the withdrawal is "explicit" and "unambiguous." Hembree v. Wilkie, 33 Vet. App. 1 (2020). In this case, the veteran argued that because his so-called "withdrawal" notice did not specify that the entire appeal was being withdrawn, or that only certain issues are being drawn, his letter was not a valid withdrawal.
The Secretary's arguments were, in a word, silly.
The Secretary admitted that the veteran's "withdrawal" didn't use clear or unambiguous words, but he was clear nonetheless because "the veteran clearly indicated that he was withdrawing the sleep apnea and left thigh claims because he distinguished them from the pending request for reconsideration of his major depressive disorder claim." The Court correctly rejected this argument, chastening the Secretary's counsel:
"[This] is not really a distinction, since the latter issue was not even on appeal before the Board; it was still before the RO. The point of the regulatory requirements is to avoid this sort of parsing and permit a finding of withdrawal only where the scope of the veteran's submission is explicit and unambiguous.
We were shocked that the VA decided not to accept our remand offer, instead causing the taxpayer to bear the burden of his poor legal judgment by paying more in EAJA fees. As a result of the questionable, at best, judgment of the VA Office of General Counsel, the taxpayer had to pay $6,425 in EAJA fees it would not have otherwise have had to pay. This is not a one-off situation. The VA Office of General Counsel routinely causes the taxpayer to pay more in EAJA fees through poor litigation judgment and strategy.
For example, over the past two years, the VA Office of General Counsel has rejected our offers for remands in 60 appeals.
Of those 60 cases, they have lost - or agreed to settle - 51. (Though I do not put much stock in "win rates", during this same time period, our firm prevailed in 191 out of 200 appeals to the Veterans Court). At some point, the taxpayer deserves answers: why is the VA Office of General Counsel briefing - and losing - so many cases? Is it due to poor judgment? Using the briefing mechanism to retaliate against attorneys they don't like? Unfamiliarity with the law? Bad workplace culture? Something else?
Whatever the reason, the cost is staggering. Remember, over 8,000 appeals are filed at the Court. If the VA Office of General Counsel requires briefs in just 30% of those cases, and loses at the same rate as they do with our firm (although our statistics show that OGC is a little more successful against other attorneys and firms), then the cost to the taxpayer - annually - is north of $2.3 million.
Perhaps someday the VA's Office of Inspector General - or Congress - will lift the hood at the VA Office of General Counsel's "Group 7" to see what goes on there. I think (and a couple little birdies have told me) that there may be some waste, fraud, and abuse worth looking into.
Returning to the merits, the Court looked to the plain meaning of 38 C.F.R. §20.205(b)(1) and determined that the letter was ambiguous and "did not constitute a valid written withdrawal of his appeal to the Board." The Court directly addressed the arguments of the Secretary's attorney, writing that "none of the circumstances cited by the Secretary were considered by the Board in its analysis."
And the Court took the unusual step of reversing the BVA and reinstating the dismissed appeals.
If you believe the VA or BVA issued a decision that improperly withdrew your VA claims or appeals, click here to have Attig | Curran | Steel take a look at your case.
Case Details
VA Office of General Counsel (OGC) Attorney: Debra Bernal (link to attorney's bio on LinkedIn)
Veteran Representation at CAVC: Alexandra Curran (link to bio)
Board of Veterans Appeals Veterans Law Judge: Amy C. Ishizawar (link to blog posts involving this BVA VLJ)
Attorney for the BVA: K.R. Fletcher
Vets’ Rep at BVA: Disabled American Veterans (link to DAV website)
Date of BVA Decision: November 27, 2018
Date of CAVC Joint Motion to Remand: June 30, 2021
Link to Appellant's Opening Brief
Link to Secretary's Response Brief
Link to Appellant's Reply Brief
Link to CAVC Memorandum Decision
