28 Vet. App. 214
Vet. App.2016Background
- Bobby L. Warren filed a December 2008 claim for service connection for sleep apnea; the RO denied it in April 2009 and he filed a Notice of Disagreement in May 2009.
- Warren elected DRO review (August 2009) but in March–April 2010 he submitted a statement seeking a Board hearing (VA Form 9) and said he was withdrawing the DRO request.
- On April 30, 2010, a VA employee wrote a Report of General Information memorializing a telephone call in which the veteran "would like to withdraw [the] sleep apnea condition from the pending appeal NOD dated 5/11/2009."
- On May 28, 2010, Warren submitted a physician statement linking his service‑connected asthma to sleep apnea; the RO construed this as a reopening and in September 2010 granted service connection effective May 28, 2010.
- The Board (Nov. 5, 2014) found Warren had withdrawn his April 2009 appeal and treated the matter as an earlier‑effective‑date issue (whether effective date earlier than May 28, 2010 was warranted); the veteran appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Warren validly withdrew his April 2009 appeal | Warren: the April 2010 phone notation did not show an explicit, unambiguous withdrawal; he intended only to remove the claim from DRO and proceed to a Board hearing | Secretary: Board correctly found withdrawal based on the April 30 report of contact; alternatively, Board adjudicated only an earlier‑effective‑date issue which is precluded | Court: The Board clearly erred — withdrawal was not explicit/unambiguous; record shows Warren intended to pursue the Board appeal |
| Whether the Board could decide an earlier effective date (< May 28, 2010) for sleep apnea | Warren: Because the December 2008 claim remained on appeal, the Board had jurisdiction over the underlying service‑connection issue (not a freestanding earlier‑effective‑date issue) | Secretary: The Board adjudicated a legally precluded freestanding earlier effective date; any challenge to the Sept. 2010 grant must be by CUE | Court: Board lacked jurisdiction to adjudicate a freestanding earlier effective date; it should have adjudicated the December 2008 service‑connection claim on the merits |
Key Cases Cited
- Kalman v. Principi, 18 Vet.App. 522 (Board finding of withdrawal is a factual determination reviewed for clear error)
- Gilbert v. Derwinski, 1 Vet.App. 49 (standard for reversing factual findings — "definite and firm conviction")
- DeLisio v. Shinseki, 25 Vet.App. 45 (withdrawal must be explicit, unambiguous, and with full understanding)
- Murphy v. Shinseki, 26 Vet.App. 510 (Board improper characterization of issue is outside scope of appeal)
- Jones v. Shinseki, 23 Vet.App. 122 (once an NOD is filed, RO cannot resolve an issue on appeal; only Board can)
- Roberson v. Principi, 251 F.3d 1378 (Fed. Cir.) (if claim remains pending, there is no final decision to challenge by CUE)