Acree v. O'rourke
891 F.3d 1009
| Fed. Cir. | 2018Background
- Veteran Lawrence J. Acree, diagnosed with PTSD and anxiety and treated with psychotropic medication, appealed multiple VA disability claims after Navy service including combat deployment to Iraq.
- Acree testified at a Board of Veterans’ Appeals (Board) hearing on Sept. 10, 2014; a Disabled American Veterans (DAV) representative attended with him.
- At the hearing the presiding board member asked Acree whether he was withdrawing seven of eleven appealed issues; Acree replied "Yes." The Board later listed four issues remaining for adjudication.
- The Board issued a written decision dismissing the seven claims as withdrawn and remanding four claims for development, citing 38 C.F.R. § 20.204(a).
- Acree appealed to the Veterans Court arguing the Board failed to apply DeLisio’s three-part standard (withdrawal must be explicit, unambiguous, and undertaken with a full understanding of consequences) and failed to ensure he understood consequences given his psychiatric history.
- The Veterans Court affirmed the Board, finding Acree’s oral withdrawal was explicit and unambiguous and therefore sufficient; Acree appealed to this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an oral statement at a Board hearing can validly withdraw claims | Acree: Withdrawal invalid unless explicit, unambiguous, and with full understanding (DeLisio) | Gov: Oral affirmation was explicit/unambiguous; no further inquiry into understanding required | Court: DeLisio standard governs; remand required because Board/Veterans Court did not address whether Acree understood consequences |
| Whether the Veterans Court properly applied DeLisio by accepting the transcript evidence alone | Acree: Veterans Court must ensure all three DeLisio prongs applied, including veteran's understanding | Gov: Court may flexibly apply DeLisio and rely on explicit/unambiguous record without probing understanding | Court: Veterans Court erred by failing to ensure the Board applied the third DeLisio prong (full understanding); remand for factfinding required |
| Whether Board has duty to inquire into veteran's capacity to understand withdrawal when mental health issues present | Acree: Board should have inquired given PTSD and psychotropic medication history | Gov: Regulations allow representative to withdraw; requiring inquiry would be burdensome and undermine representative role | Court: Duty to ensure understanding is consistent with pro-claimant VA scheme; inquiry may be necessary, particularly where veteran is pro se or has psychiatric impairments |
| Whether the case should be remanded or affirmed | Acree: Remand required for factual finding on understanding | Gov: Affirm because withdrawal was explicit and unambiguous | Court: Vacated Veterans Court judgment and remanded for further development on whether Acree understood consequences of withdrawal |
Key Cases Cited
- Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000) (characterizes VA adjudicatory system as uniquely pro-claimant)
- Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009) (veterans with psychological disabilities may need additional assistance)
- Barrett v. Nicholson, 466 F.3d 1038 (Fed. Cir. 2006) (VA’s interest is justice for veterans, not merely winning)
- Henderson v. Shinseki, 562 U.S. 428 (2011) (VA process designed with informality and solicitude for claimants)
- Allentown Mack Sales & Serv., Inc. v. NLRB, 522 U.S. 359 (1998) (agencies must apply the standards they announce)
- Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985) (remand is required when agency has not considered all relevant factors)