190802-25557
190802-25557
| Board of Vet. App. | Sep 29, 2021Background
- Veteran served on active duty from March 1969 to March 1971.
- Appeal arises from a July 2019 VA Regional Office rating decision denying service connection for allergic rhinitis (chronic hay fever).
- Veteran filed a VA Form 10182 in August 2019 and elected the Board hearing docket.
- A hearing was scheduled for February 2021; during the prehearing conference the Veteran's representative cancelled the hearing and withdrew the appeal on February 22, 2021.
- The withdrawal was placed on the record, the Veteran was informed of consequences and verbally consented.
- Because the appeal was withdrawn before the Board promulgated a decision, the Board found no jurisdiction to adjudicate the claim and summarily dismissed it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal was properly withdrawn | Veteran (through rep) asserts withdrawal of appeal | VA/Board contends withdrawal was valid and leaves no errors to review | Appeal withdrawn; Board lacks jurisdiction and dismisses claim |
| Whether the oral withdrawal met DeLisio requirements | Withdrawal was made during prehearing and Veteran consented | Board maintains withdrawal was explicit, unambiguous, and informed | DeLisio standard satisfied; withdrawal effective |
Key Cases Cited
- DeLisio v. Shinseki, 25 Vet. App. 45 (2011) (oral withdrawal must be explicit, unambiguous, and made with full understanding of consequences)
- Acree v. O'Rourke, 891 F.3d 1009 (2018) (Board must address all DeLisio prongs when applicable)