How to Withdraw a VA Claim or Appeal.
When someone asks me how to withdraw a VA claim or appeal, I answer that question with a question:
Why on earth would you want to withdraw a VA claim or appeal?
Scenario 1 for withdrawing a VA Disability Claim or Appeal: When the Veteran or Survivor is just “done” with the VA. Doesn’t want to fight, doesn’t have any fight, and just wants to get on with their lives and never see the the letters “VA” again.
Scenario 2 for withdrawing a VA Claim or Appeal: When there is no legal or factual merit to the Veterans claim or appeal, and it will never ever stand a snowball’s chance in hell of winning benefits, the veteran or survivor should consider withdrawal of the VA claim or appeal.
You might think that Scenario 2 sounds reasonable, but since 2007, I need only 10 fingers to count the times where I legitimately thought that a Veteran should withdraw their claim or appeal because it lacked factual or legal merit.
Every day, however, the VA is telling Veterans that their claims lack factual or legal merit and they should withdraw them.
Every day, VSOs are telling Veterans that their claims lack factual or legal merit and they should withdraw them.
Every day, the BVA is telling Veterans that their claims lack factual or legal merit and they should withdraw them.
And every day, OGC Attorneys in appeals to the Veterans Court are telling Veterans that their claims lack factual or legal merit and they should withdraw them.
The problem is, 99.99% of the time, this is not true – the VA plays a game when it comes to telling veterans to withdraw their claims or appeals and, just like all games where the “house” sets the rules, the Veterans are the ones who lose out.
In the next section, I want to tell you about the VA’s Withdrawal Game, and the 4 ways that they try to push Veterans or Survivors to withdraw their claim or appeal.
The VA’s Withdrawal Game.
The VA, BVA, VSOs and the Secretary’s attorneys before the CAVC have 4 common ways that they pressure or tempt Veterans or Survivors to withdraw their VA Claims and appeals.
Let’s walk through each:
Scenario A: horse-trading claims.
Here’s how this works. You get a call, often out of the blue, from the VA. They fawn all over you with TYFYS and how they VA is here to help…buttering you up for what comes next.
“Hey, Mr. Vet,” the caller says, “I see you have 2 claims (or appeals), one for Condition A and one for Condition B. If you will withdraw Condition A, then we can go ahead and grant Condition B right away, and that will take your overall rating from x% total rating to the much higher y%, plus 2-3 months past due. Whaddya say, wanna withdraw Condition A?”
Now, the words don’t always come out just like that … in this scenario, the message is basically the same though: we can get you cash money, now, if you drop some of your claims and appeals, and keep only one or two that they may or may not list for you.
Here’s what they are doing – they are taking advantage of your need for a higher monthly income, plus the lure of cash to keep them from having to: order C&P exams, deal with lengthy appeals to get you the benefits you deserve, cut off an earlier effective date that might pay you 5 or 6 figures in past due benefits.
In other words – you lose, they benefit. You get a smaller “win” and a bigger “loss”…because chances are greater than not that they are asking you to give up a case that may involve a substantial past-due benefit payout, or a much higher total rating, in exchange for a smaller short-term win.
Most of the time, they will tempt you with a temporary 100% rating (either for a particular condition or for TDIU) to give up the claim or appeal that may lay the foundation to a much earlier effective date that will pay you MUCH more in past due, or that might have given you eligibility for Special Monthly Compensation (SMC).
How do you handle a situation like this:
Have them put the offer in writing. Have them write down what claims and appeals (with dates and specific conditions) that they want you to withdraw, and WHY it is in your advantage to do so. Let them know that once you have that in writing, you will consider their offer.
They won’t respond, I’m sure of it because I’ve NEVER seen the VA put an offer like this in writing. Instead, send a letter to the VARO care of the EIC and ask them to put the letter in your C-File. (Send it certified mail, too, because we DEFINITELY don’t trust the VA to put something this damning into your C-File)
In the letter, document who you talked to, what they asked you to withdraw, the reason that they told you the withdrawal would benefit you, and any other pertinent information.
Indicate that you asked for their proposal in writing so that you could consult with an attorney to evaluate the legality and merits of their offer. Be sure to write clearly that you did NOT withdraw any claim or appeal, but should they deliver it to you in writing as requested – specifically identifying what claimed conditions or appeals that they are asking you to withdraw and how it benefits you to do so – you will reconsider their proposed settlement offer. (They don’t have authority to settle cases, legally by the way).
The purpose of this response is to document the who, what, where, when and why for this tactic. Often times, the VA will ignore your response and withdraw your claim, saying that you told them to. By documenting that you did not, you make it more than just a “he-said-she-said” if it ever becomes an issue at the BVA or CAVC.
Scenario B: Strong-arming.
This tactic works like this.
The VA Sets the Hook. The VA calls you up and suggests that they are going to have to reduce your total impairment rating from 100% to 10%. (The proposed reduction is usually pretty dramatic, to get you frightened or panicked).
The VA Lands the Fish. Once you demonstrate a sufficient degree of fear or concern they give you a “way out”. They say, if you just withdraw your claim for Condition B, then we won’t be forced to reduce your total rating.
Frighteningly, I see this tactic used most commonly by VSOs, who use the VA to be the “straw man”. They say, “Hey, Mr. Vet, if you don’t withdraw your claim for Sleep Apnea, the VA told us that they are going to reduce your 100% rating for PTSD, or take away your TDIU.”
Problem is, the VA can only reduce your rating if your condition substantially improves over time. Reductions are NOT a punitive measure, and although the VA can find error in a previous decision that they think over-rated you, they have to follow very specific steps to reduce your rating and have very specific evidence to support that reduction.
How do you handle this kind of strong-arming.
Nerves of steel are what you need. It’s scary to have the VA tell you that they are going to cut your benefits because you think you are entitled to service connection for a condition that you recently claimed.
Again, though, documenting the call is the best thing you can do. Write down WHO you talked to, what they told you, why they said it would benefit you to withdraw your claims or appeals, and what they said they would do if you did not agree.
Send it in to the VARO through the EIC, and ask that it be included in your C-File (Send it certified mail, too, because we DEFINITELY don’t trust the VA to put something this damning into your C-File)
If you are REALLY concerned about losing benefits, then this would be a good time to talk to an attorney to see if they can reduce your claim.
There are not many attorneys that work VA Reduction claims/proposals because the attorney rarely gets paid for this kind of work, but there are such attorneys out there. Start with the long list of attorneys at the NOVA website, and tell them you are looking for legal advice about a VA proposal to reduce your benefits….be prepared to call a LOT of attorneys, as I mentioned, the ones that handle these types of cases are few and far between.
Download a free copy of this VA Field Manual to learn everything you need to know about hiring a VA Claims attorney…or purchase a paper copy of the book here.
Scenario C: Deception.
I see this one a LOT at the BVA. The BVA Veterans Law Judge (VLJ) tells you that you have the maximum benefit for Condition A, so there really is no point in pursuing it…why don’t you withdraw it and be done with it?
The problem is this: if there really is no way to get a higher rating for your condition, then FORCE the BVA VLJ to tell you that, in writing, in a BVA decision. This way, if they are wrong, you can appeal to the Court of Appeals for Veterans Claims.
The thing is that almost 100% of the time, the VLJ is going to be wrong. Even if you get the maximum SCHEDULAR rating for a particular condition, there is always a possibility that you can get a higher EXTRA-SCHEDULAR rating for that same condition. Or maybe you can get SMC or TDIU based on your current rating, and you raised that possibility through a claim for increased rating.
We are actually representing a veteran who was manipulated in just this way.
He had a claim for increased rating of his hearing condition, in which he argued that the VA didn’t really consider his symptoms of his hearing loss, and limited their consideration to the schedular rating. We know that this is unlawful, as the VA has long been required to consider whether the impact of hearing loss on the veteran qualifies him or her for a higher, extra-schedular rating.
Well, when he got to the BVA hearing, the VLJ told him: “You have the highest rating for your hearing loss, and I can’t give you anything higher. Would you withdraw your appeal of the denied claim for increased hearing loss?” The Veteran simply told the VLJ, “I don’t know what’s best, and I’m relying on you” (or words to that effect).
What the VLJ probably knew – or should have known – was that the Veteran was entitled to a consideration of a higher extra-schedular rating for his hearing loss. She didn’t tell the Veteran that, though. She tried to deceive him into withdrawing his appeal.
The VLJ really screwed up on this one, though….the Veteran did not trust the BVA and separately recorded the VLJ’s question which as you might predict, is missing from the “official” transcript and recording of the hearing.
What should you do if this happens?
You can politely tell the Judge “Thanks, but no thanks.” Here’s what I recommend saying:
“Judge, thank you for your insight. I feel that I am entitled to the relief I am seeking, and if you think I am wrong, then I would greatly appreciate a written BVA decision telling me that I am wrong. I’m not doing this to make more work for you, I’m doing this because I believe strongly in my right to this benefit and if a lawyer later disagrees with your decision, I would like to have the opportunity to appeal. It is my prerogative to NOT withdraw a claim and I respectfully request that you continue to consider my appeal and decide it based on the law and the facts.”
You can say ALL of that politely – it doesn’t need to be tense or rude or terse. Just matter of factly say just that.
As an extra pre-caution, when a VLJ proposes that my client withdraw a claim or appeal at the BVA hearing, I ask the VLJ for 5 minutes at the beginning of the record to summarize the pre-record discussion. I usually say something like this, on the record, at the beginning of the hearing.
“Prior to going on the record, the VLJ asked me to withdraw my claim for XYZ. I don’t understand the reasons that the VLJ explained, and I believe I am entitled to the benefits I am seeking in this appeal, so I do NOT withdraw any claims or appeals.”
Again, you can say this very matter-of-fact….doesn’t need to be rude or uncivil, mean or angry. Say it with a smile on your face, and move on to present your case.
Scenario D: Lack of Legal Knowledge
I see this happen all the time at the Court of Appeals for Veterans Claims. A Veteran has filed an appeal of a BVA decision at the Court of Appeals for Veterans Claims. The VA is represented by an attorney at the CAVC, and it is assuredly an ADVERSARIAL process at this point.
The VA’s attorney uses his or her position as an attorney to explain to the pro-se veteran why their claim or appeal is not legally sustainable. They may or may not point to the case where a veteran (who brought MANY frivolous appeals) was sanctioned for repetitive frivolous appeals, as an attempt to scare you into doing what they say.
They convince you to withdraw your claim or appeal, and then they memorialize it through what is called a Joint Motion to Remand….in which they represent to the CAVC that you are in agreement with them and agree to withdraw your appeal of Condition A.
This particular scenario hacks me….the primary interest of the government attorney is not to win the case.
But try to tell that to a handful of these OGC attorneys. While I generally like most of the attorneys that represent the Secretary at the CAVC, and most exemplify ethical behavior, there are about a half-dozen or so that have their identity wrapped up in winning, and they will walk all over a Veteran to win a case.
So, the way to avoid this scenario is to never get into it. Hire an attorney the minute you get a BVA decision and decide to appeal it to the Court of Appeals for Veterans Claims. My law firm does not charge Veterans a dime for this representation, and many other law firms don’t either, so you have no excuse for not hiring an attorney. Click here to learn all about how to choose an attorney for your VA claim or appeal.
But, if you don’t hire an attorney to help you at the CAVC, at the very least, before you sign a Joint Motion to Remand your appeal to the BVA, call an attorney and ask them to review the JMR to see if you are getting bamboozled by the Secretary’s Office of General Counsel, or if your case is stronger than they are leading you to believe.
Requirements of a Withdrawal a claim.
If you DO withdraw a claim or appeal, there are very strict rules about what has to happen. So, follow them to a “T”, to make sure that the VA doesn’t withdraw more than you intended them to:
1. There is NO law, rule or regulation that allows a veteran to withdraw a claim before the VA Ratings Decision is issued. That doesn’t mean you can’t do it, it just means that there are no legal protections for you if something goes wrong. It is almost always best, unless you are just done with the VA, to let the claim ride and let the VA deny it before you consider withdrawing it.
2. 38 CFR 20.204 governs the withdrawal of appeals. Here are the rules;
a. Only an Appellant, or their representative, can withdraw an appeal. I read this to say that if you have hired an attorney, agent or VSO for your appeal, only that individual can withdraw your appeal (with, of course, your consent).
b. The withdrawal must be in writing (or on the record during an official recorded hearing), and it must include your full name, the C/CSS claim number, the Veteran’s full name (if you are a survivor or dependent seeking benefits) and an express statement that the appeal is withdrawn. If your appeal has mutliple issues, the withdrawal has to specificy or list the issues being withdrawn or state that the appeal is withdrawn in its entirety.
d. If your appeal has been certified to the BVA, then you have to send it to this address:
Board of Veterans Appeals
Director, Office of Management, Planning, and Analysis (014)
PO Box 27063
Washington, DC 20038
e. Your withdrawal will be deemed a withdrawal of a NOD or VA9, but you can refile them if you have time remaining to do so.