Cecil E. Hem Bree v. Robert L. Wilkie

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 18-3856

CECIL E. HEM BREE, APPELLANT ,

V.

ROBERT L. WILKIE,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued June 10, 2020 Decided August 31, 2020)

Steven M. Spitzer, with whom Glenn R. Bergmann and Christopher M. Toms, all of

Bethesda, Maryland, were on the brief for the appellant.

Abigail J. Schopick, with whom James M. Byrne, General Counsel; Mary Ann Flynn, Chief

Counsel; and Christopher W. Wallace, Deputy Chief Counsel, all of Washington, D.C., were on

the brief for the appellee.

Before ALLEN, TOTH, and FALVEY, Judges.

FALVEY, Judge: Army veteran Cecil E. Hembree appeals through counsel a May 7, 2018,

Board of Veterans' Appeals decision that denied an effective date earlier than February 24, 2011,

for service-connected diabetes mellitus, type II (diabetes), and coronary atherosclerosis disease

(CAD).1

This appeal, over which the Court has jurisdiction under 38 U.S.C. §§ 7252(a) and 7266(a),

was referred to a panel of the Court to address whether the factors laid out in DeLisio v. Shinseki,

25 Vet.App 45 (2011), apply to a written request to withdraw an appeal.

1

The decision on appeal also remanded the matters of an increased initial rating greater than 20% for diabetes

and whether new and material evidence had been received to reopen a claim for post-traumatic stress disorder. Because

a remand is not a final decision, the Court lacks jurisdiction over these claims and we will not address them. See

38 U.S.C. § 7252(a) (finding that the Court has "exclusive jurisdiction" to review final Board decisions); Breeden v.

Principi, 17 Vet.App. 475, 478 (2004) (holding that a Board remand "does not represent a final decision over which

this Court has jurisdiction").

We hold that they do not. Instead, when an appellant seeks to withdraw an appeal in

writing, 38 C.F.R. § 20.204(b) governs whether that withdrawal is effective. 2 Because Mr.

Hembree's written withdrawal fully complies with the regulation, we affirm the Board's decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mr. Hembree served on active duty from 1969 to 1971. Record (R.) at 1907. In August

2001, he sought service connection for diabetes based on herbicide exposure, specifically Agent

Orange, and secondary service connection for "circulatory conditions." R. at 2315. In May 2005,

the regional office (RO) denied his claims for diabetes and a heart condition, which it characterized

as CAD. R. at 1361-62. Mr. Hembree did not appeal this decision and it became final.

In May 2007, the veteran requested that VA reopen these previously denied claims, again

saying that they stemmed from exposure to Agent Orange. R. at 1326-27. In a June 2008 rating

decision, the RO declined to reopen his claims because he had failed to submit new and material

evidence. R. at 1120-27. In July 2008, Mr. Hembree filed an informal Notice of Disagreement

(NOD), R. at 1100; but, in August 2008, the RO rejected this submission as inadequate and directed

him to file a formal NOD instead, R. at 1092.

On September 19, 2008, Mr. Hembree responded with three submissions from his veterans

service organization (VSO) representative. The first of these was a typed statement with Mr.

Hembree's name, file number, and signature, which stated that he requested "to withdraw all

pending claims and appeal." R. 1089. The second was a typed letter from the VSO representative,

again bearing Mr. Hembree's name and file number, and stating: "[T]he veteran wishes to submit

[an] employment questionnaire and withdraw[] all pending claims and appeals." R. at 1090. The

third document was the employment questionnaire used for a claim for total disability for

individual unemployability (TDIU). R. at 1091.3

2

Effective February 19, 2019, VA amended and renumbered 38 C.F.R. § 20.204 to comply with the appeals

processing changes mandated by the Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No.

115-55, 131 Stat. 1105 (Aug. 23, 2017). But the regulatory changes apply only to claims in which VA issues an initial

decision after February 19, 2019, unless a "legacy" claimant elects to use the modernized review system. 84 Fed. Reg.

at 177. There is no assertion that the new rule should apply here. Thus, we limit our analysis to the 2017 version of

the regulation; the law in effect at the time of the Board's May 2018 decision.

3 We note that Mr. Hembree has been in receipt of a 60% rating for degenerative disc disease of the lumbar

spine since September 1997. R. at 1128. This rating alone makes him eligible for TDIU consideration under 38 C.F.R.

§ 4.16.

2

On December 10, 2008, Mr. Hembree called VA to check on his TDIU claim. R. at 1081.

Then in October 2009, he called again and stated that he was "requesting to discontinue his claim

for Agent Orange submitted 12/10/08 due to health reasons" and that "he no longer wishes to

pursue benefits at this time." R. at 695. We note that there does not appear to be a December 10,

2008, claim for benefits related to Agent Orange or otherwise. Rather, it was on that date that Mr.

Hembree called VA to talk about his TDIU claim. R. at 1081.

In March 2011, Mr. Hembree filed a request to reopen his service-connection claim for

diabetes and CAD. R. at 568. VA processed this claim as a "new claim for benefits." R. at 400. In

a February 2012 rating decision, the RO granted benefits for both claims, applying the presumption

of herbicide exposure applicable to his service in the demilitarized zone (DMZ) in Korea. R. at

402-03. The RO assigned an effective date of February 24, 2011, which stemmed from the date of

the liberalizing law that entitled him to presumptive service connection. R. at 402-03.

Mr. Hembree filed an NOD as to the effective date, arguing that he was entitled to an earlier

effective date based on the previously filed claims for diabetes and heart disease. R. at 315. In

September 2014, the RO issued a Statement of the Case continuing the effective date of February

24, 2011, R. at 104-33; and in October 2014, Mr. Hembree perfected his appeal to the Board, R.

at 101-02.

In May 2018, the Board issued the decision on appeal finding that an effective date earlier

than February 24, 2011, for diabetes and CAD was not warranted because this date represented

the earliest date on which Mr. Hembree could receive benefits under the revised regulation for

presumptive service connection based on his service in the Korean DMZ. R. at 8. The Board found

that, although he had expressed general disagreement with the June 2008 rating decision, he had

withdrawn his appeal of the CAD and diabetes claims in September 2008. R. at 7 And because he

had not submitted new and material evidence within one year following the June 2009 rating

decision, the decision became final. R. at 7. The Board thus denied an earlier effective date. We

are asked to review the Board's finding that the veteran withdrew his appeal.

II. ANALYSIS

A. Legal Landscape

We have a well-settled standard for orally withdrawing an appeal. This Court's decision in

DeLisio v. Shinseki explains that a withdrawal is effective only where it is "explicit, unambiguous ,

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and done with full understanding of the consequences of such action on the part of the claimant. "

25 Vet.App. at 57. This standard has its roots in our decision in Hanson v. Brown, where we held

that the veteran had validly withdrawn his claim when "there [was] no indication that the veteran

was misguided or lacked understanding of the consequences of his actions." 9 Vet.App. 29, 32

(1996). Our review in Hanson focused "chiefly [on] a 'Report of Contact' contemporaneously

prepared by the social worker assigned to evaluate the appellant for PTSD." Id.

We relied on Hanson in DeLisio to articulate our rule that a withdrawal must be "explicit ,

unambiguous, and done with full understanding of the consequences of such action on the part of

the claimant." 25 Vet.App. at 57, citing Hanson, 9 Vet.App. at 32. And we used that standard to

find that Mr. DeLisio's oral withdrawal was not valid because, even though the "Board member

had identified the issues to be discussed, the transcript reflect[ed] neither an explicit discussion of

withdrawal nor any indication that Mr. DeLisio understood that he might be withdrawing claims

for benefits for any disabilities not discussed." DeLisio, 25 Vet. App. at 58.

As the Federal Circuit recently made clear, when the DeLisio standard applies, the Board

must address all three prongs of the standard—in other words, we need the Board's findings on all

three elements to properly review its decision. See Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed.

Cir. 2018). At the same time, the Federal Circuit noted that the DeLisio standard deals with the

"requirements necessary for an effective oral withdrawal of a claim at a board hearing." Id. at 1013

n2. Thus, the Federal Circuit explained that it "express[ed] no view on the criteria that must be

satisfied when a veteran submits a written request to withdraw a claim." Id. citing 38 C.F.R.

§ 20.204(b). This brings us to the dispute in Mr. Hembree's appeal.

B. Written Withdrawal of an Appeal

Mr. Hembree argues that the Board erred in finding that he withdrew his 2008 service-

connection claims for diabetes and CAD because it failed to discuss whether his written

withdrawal complied with the requirements set forth in DeLisio and affirmed in Acree. Appellant's

Brief (Br.) at 7-8. The Secretary responds that DeLisio and Acree dealt specifically with oral

withdrawals at a hearing, not written withdrawals as is the case here. Secretary's Br. at 6. This is

an important distinction.

Our cases have not addressed a written withdrawal submitted by the veteran. DeLisio dealt

with an oral withdrawal at a hearing. 25 Vet.App. at 58. Hanson dealt with a written notation of

the veteran's discussion with a social worker. 9 Vet.App. at 32 (holding that a withdrawal was

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valid because there was "no indication that the veteran was misguided or lacked understanding of

the consequences of his actions"). Compare Warren v. McDonald, 28 Vet.App. 214, 218-19 (2016)

(reversing the Board's finding that a report of a phone conversation was a valid withdrawal of

appeal because there was "considerable evidence" that a withdrawal was not intended).

Importantly, as the Federal Circuit reminded us in Acree, VA has a regulation that deals

with written withdrawals—§ 20.204(b). See 891 F.3d at 1012 ("Section 20.204(b)(1) sets out with

particularity the requirements for making a written request to withdraw a claim.").

A valid regulation has the force and effect of law. See Chrysler Corp. v. Brown, 441 U.S.

281, 295 (1979). Thus, absent a challenge to the validity of this regulation, we are bound to apply

it.4 And because this case deals with a regulation, we begin our analysis with its text. See Good

Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993). If the regulation is not ambiguous, the

"regulation then just means what it means—and the court must give it effect." Kisor v. Wilkie,

139 S. Ct. 2400, 2415 (2019).

Turning then to the regulation, we see that "[o]nly an appellant, or an appellant's authorized

representative, may withdraw an appeal [and that an] appeal may be withdrawn as to any or all

issues involved in the appeal." 38 C.F.R. § 20.204(a). To be effective, the "withdrawal[] must be

in writing [and] must include the name of the veteran, the name of the claimant or appellant if

other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive

VA benefits on an individual's behalf)." 38 C.F.R. § 20.204(b)(1). The withdrawal must also

include "the applicable Department of Veterans Affairs file number, and a statement that the appeal

is withdrawn." Id. And "[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." Id.

As the Federal Circuit observed, the regulation comprehensively lays out the requirements

for making a written withdrawal. See Acree, 891 F.3d at 1012. Although we don't shut the door on

future arguments about its terms, we see no ambiguity in the text of the regulation that we must

resolve in this appeal. And neither Mr. Hembree nor the Secretary raises arguments that cast doubt

on the meaning of the regulation. Thus, our role now is to enforce the text of the regulation. See

4

Mr. Hembree has not challenged the validity of § 20.204. Admittedly, his counsel pivoted to making a

constitutional argument at oral argument, but we have "repeatedly discouraged parties from raising arguments that

were not presented in an initial brief to the Court." Norvell v. Peake, 22 Vet.App. 194, 201 (2008). Thus, we will not

take up this belated argument and we leave for another day questions about the validity of this regulation.

5

Kisor, 139 S. Ct. at 2415. And this means that we may not impose the DeLisio standard on a written

withdrawal.

Admittedly, the regulation's provisions embody the first two DeLisio factors—the

withdrawal must be explicit and unambiguous. The regulation specifies that a withdrawal include

the veteran's file number and a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b)(1).

And if the appeal involves multiple issues, the regulation also requires specificity about whether

the entire appeal or only specific issues are withdrawn. Id. These regulatory requirements for a

written withdrawal mimic the DeLisio requirements that an oral withdrawal be explicit and

unambiguous. But, unlike DeLisio, the regulation does not leave room for us to read into it a

requirement for an affirmative inquiry into whether the withdrawal is done with full understanding.

This is for two reasons. First, because the regulation does not impose such a requirement,

as we explained, we may not add it to the regulation. And second, under the regulation, a

withdrawal is effective when received and an appellant may renew his or her appeal after

withdrawing it. See 38 C.F.R. §§20.204(b)(3), 20.204(c). If a written withdrawal is to be effective

when received, then an adjudicator cannot reasonably be required to wait to give it effect

depending on what happens after it is submitted. And the fact that the appellant can renew the

appeal after withdrawing it shows us that the regulation contemplates the appellant changing his

or her mind or undoing the withdrawal if it is submitted by mistake or if there is a change in

circumstances. But forcing an inquiry into the veteran's subjective understanding following the

written withdrawal would impermissibly negate these provisions of the regulation, something we

may not do. See Ravin v. Wilkie, 30 Vet.App. 310, 315 (2018).

This is why the Board should ordinarily confine itself to deciding whether the withdrawal

is valid based on examining the written submission to determine whether it complies with the

requirements laid out in § 20.204(b). Of course, if the written withdrawal is itself ambiguous—for

example, if it fails to adequately specify which claim is being withdrawn—the Board may need to

consider other evidence. Moreover, when considering whether the submission is ambiguous, the

Board should not lose track of the pro-claimant nature of the VA system. See Elkins v. Gober,

229 F.3d 1369, 1376 (Fed. Cir. 2000). But this is not the appropriate case to decide what ambiguity

or deviation from § 20.204 negates a withdrawal. It is enough to say that, if the withdrawal includes

the name of the appellant and the file number and unambiguously identifies the claims to be

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withdrawn, then the written withdrawal will be considered valid and the Board need not look to

other evidence to find it so.

Such a reading of § 20.204 gives effect to the regulatory requirements for withdrawing a

claim because the Board must ensure that those requirements are met before concluding a claim is

withdrawn. At the same time, such a reading gives full effect to the provisions that make

withdrawals effective upon receipt and allow a veteran to change his or her mind following a

written withdrawal and renew the appeal. Further, the requirements for specificity, found in §

20.204(b), and the ability to renew an appeal under § 20.204(c) act to protect the appellant's interest

in the claim, much like the "understanding" requirement of DeLisio.

That said, the regulation does not leave room for the kind of subjective inquiry into the

veteran's understanding that is required under DeLisio. Putting aside that the text of the regulation

breaks down if we try to wedge in all three elements, there are practical considerations that limit

DeLisio's applicability to written withdrawals. As the Federal Circuit noted: "it is unlikely to be

unduly burdensome for the hearing officer to determine—either by questioning the representative

or by contacting the veteran directly—that the veteran firmly intends to withdraw a claim and

understands the consequences of claim withdrawal." Acree, 891 F.3d at 1015. Although this makes

sense in the hearing context, requiring VA to make an affirmative inquiry when the claimant or a

representative submits an otherwise explicit and unambiguous written withdrawal imposes a

heavier burden.5

We thus hold that DeLisio does not apply to written withdrawals of an appeal. Instead, the

regulation controls when the veteran or his or her representative submits a written withdrawal of

an appeal. When the Board must analyze whether a written withdrawal is effective, its chief

questions are whether the written withdrawal falls under § 20.204(b) and, if so, whether it complies

with that regulation's requirements. If the answer to both questions is yes, then that is generally the

end of the matter. Whether any post-withdrawal information could call the propriety of that

withdrawal into question is not an issue we need to address today.

C. Application to Mr. Hembree

With this standard clarified, we turn to Mr. Hembree's appeal. The Board noted that he

submitted an NOD in July 2008. R. at 5. But after the RO requested more information, "in [his]

5

Nothing stops the Secretary from clarifying an ambiguous withdrawal, either by phone or in writing. But

we decline to impose such a requirement when the withdrawal fully complies with § 20.204.

7

September 2008 correspondence, the [v]eteran requested to withdraw all pending claims and

appeals." R. at 5. The Board thus found that the veteran withdrew his appeal. R. at 7. The question

before us is whether it erred.

Like the Board, we focus on the documents that VA received on September 19, 2008—

specifically, the statement signed by Mr. Hembree, R. at 1089, and the letter from his VSO, R. at

1090. Because Mr. Hembree had started his appellate process, § 20.204 applies and we consider

whether the two documents comply with the requirements set out in 20.204(b)(1).

Both documents, one signed by Mr. Hembree and the other signed by his VSO, contain

Mr. Hembree's name and his file number, and both say that all pending claims and appeals are

withdrawn. R. at 1089, 1090. This is just as 38 C.F.R. § 20.204(b)(1) requires. Mr. Hembree argues

that his September 2008 submission and subsequent conduct call into doubt his intent and

understanding of his withdrawal. But when the written document is not ambiguous, the veteran's

subsequent conduct does not come into play. And the withdrawal is effective when received. See

38 C.F.R. § 20.204(b)(3). Mr. Hembree told VA that he wanted to withdraw "all pending claims

and appeals" and that's what happened. R. at 90. And it happened when he submitted these

documents. We see no ambiguity in Mr. Hembree's withdrawal. Nor can we find a defect that

would make § 20.204 inapplicable.

Even if Mr. Hembree's October 2009 phone call to VA had some relevance, which it

doesn't, that call perhaps suggests that Mr. Hembree was confused about what happened in

December 2008. R. at 695. That is the date of the claim he mentioned and seems to pertain to a

TDIU claim. But the withdrawal at issue took place in September 2008. Mr. Hembree fails to show

us how his call is relevant, just as he fails to show ambiguity in "all claims and appeals." R. at 90.

In short, we find no error in the Board's conclusion that his withdrawal was valid.

This holds true even with the sparse consideration from the Board. We are required to take

due account of the rule of prejudicial error. 38 U.S.C. § 7261(b)(2) (requiring the Court to "take

due account of the rule of prejudicial error"); Shinseki v. Sanders, 556 U.S. 396, 409 (2009)

(holding that the harmless-error analysis applies to the Court's review of Board decisions and that

the burden is on the appellant to show that he or she suffered prejudice as a result of VA error).

Considering harmless error necessarily takes us "beyond the Board's analysis because '[t]he Board

cannot predict every instance in which it might be found to have committed error,' and, therefore,

'cannot be expected to make specific factual findings that might facilitate a prejudicial error

8

analysis.'" Simmons v. Wilkie, 30 Vet.App. 267, 284 (2018) (quoting Vogan v. Shinseki,

24 Vet.App. 159, 163 (2010)), aff'd, 964 F.3d 1381 (Fed. Cir. 2020).

Because we detect no ambiguity on the face of the veteran's withdrawal, we find no reason

why the Board needed to mechanically check off the elements of § 20.204(b) when Mr. Hembree

did not challenge his withdrawal until he got to the Court. The Board had a document that facially

complied with the regulation for withdrawing claims and a veteran who did not contend that this

withdrawal was invalid. We do "not require the Board to assume the impossible task of inventing

and rejecting every conceivable argument in order to produce a valid decision." Robinson v. Peake,

21 Vet. App. 545, 553 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009).

Without a reasonable argument that Mr. Hembree's submissions did not seek to withdraw his

claim, the Board did not need to confirm the undisputed fact that the veteran's submissions

complied with the regulation. Nor would it make sense to remand the matter to the Board for a pro

forma analysis. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (explaining that the Court

will not remand for better reasons and bases "in the face of overwhelming evidence in support of

the result in a particular case . . . [as this] would result in this Court's unnecessarily imposing

additional burdens on the [Board and VA] with no benefit flowing to the veteran."

In short, because Mr. Hembree's September 2008 written submissions fully complied with

the requirements of § 20.204(b)—they stated his name, file number, and that all claims were

withdrawn—the Board correctly found that he withdrew his appeal, and so we affirm the Board

decision. We do so without addressing how VA should resolve ambiguity under § 20.204(b)

because Mr. Hembree's submissions complied with the regulation and are unambiguous. Nor do

we foreclose the possibility that, in an appropriate case, post-withdrawal evidence could call the

effectiveness of the withdrawal into question; this is not the appropriate case.

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III. CONCLUSION

On consideration of the above and our review of the record, the Board's May 7, 2018,

decision is AFFIRMED.

10