The U.S. Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand and opened up the opportunity for our client to obtain an additional five years of retroactive pay. The Secretary agreed that the Board of Veterans’ Appeals committed critical errors that require remand.

Background: A Veteran’s Fight for the Right Effective Date

Our client served honorably in the U.S. Army, including combat deployment in support of Operation Iraqi Freedom. In January 2015, our client filed claims for PTSD, bilateral ankle sprains, a left eye condition, and other disabilities.

VA scheduled C&P examinations, but our client could not attend due to a civilian contractor deployment overseas. Despite documented good cause, VA denied all claims for failure to attend the examinations. Our client then filed a Notice of Disagreement in December 2015.

In September 2016, our client’s then-representative sent VA a letter requesting rescheduled C&P examinations. That same letter asked VA to withdraw the pending Notice of Disagreement as “unnecessary.” The Board relied on this letter to find a valid withdrawal of the claims. The client refiled the claims in January 2020 and the Board found that was the earliest possible effective date.

The Board’s Errors: Ignoring Ambiguity in the Withdrawal Request

Our firm identified two critical errors in the Board’s decision. First, the Board never addressed the clear ambiguity in the September 2016 letter. That letter requested new VA examinations while and only asked that VA withdraw the appeals, not the claims themselves. Under Hembree v. Wilkie, the Board must evaluate whether a withdrawal request is explicit and unambiguous.

Second, the Board failed to determine whether the withdrawal complied with 38 C.F.R. § 20.205(b)(1). That regulation requires multi-issue withdrawals to specify each issue or state the appeal withdraws entirely. The September 2016 letter did neither.

The Government Agrees: Joint Motion Granted

The Secretary of Veterans Affairs agreed with our firm’s arguments and conceded that the Board erred. The parties filed a Joint Motion for Partial Remand, and the Court granted it. The Board must now evaluate the ambiguity of the September 2016 correspondence. We will continue arguing that the letter did not withdraw the claims.

Why This Matters

This remand could establish an effective date years earlier than January 2020 for our client’s benefits. Our client may receive significant retroactive compensation dating back to the January 2015 claim. This case shows how our firm fights to protect veterans from procedural errors that delay deserved benefits. It also highlights how important it is to have experienced advice when communicating with VA