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The Veterans Consortium Pro Bono Program

Warren v. McDonald, 2016

  • Organization: CAVC
  • Document Type: Case law/admin decisions
  • Date Created: Thursday, December 01, 2016
  • Submitted: Thursday, December 01, 2016
  • Attachment(s): PDF

Before LANCE, DAVIS, and BARTLEY, Judges.


BARTLEY, Judge: Veteran Bobby L. Warren appeals through counsel a November 5, 2014, Board of Veterans' Appeals (Board) decision finding that the veteran withdrew his appeal of an April 2009 regional office (RO) denial of service connection for sleep apnea and denying entitlement to an earlier effective date for service connection for sleep apnea.  R. at 3-15.  A panel of the Court 1 was convened to review the Board's determination that Mr. Warren withdrew his 2009 appeal via a phone conversation with a VA employee, who memorialized the withdrawal in a written memorandum, and to address the Secretary's argument that the Board adjudicated a legally precluded freestanding earlier effective date issue.  See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). We hold that the Board clearly erred in determining that Mr. Warren withdrew his appeal of the April 2009 RO decision and that the Board wrongly adjudicated an earlier effective date issue not on appeal and over which the Board did not have jurisdiction.  Accordingly, the Court will reverse the Board's November 5, 2014, finding that Mr. Warren withdrew his appeal of the April 2009 RO decision and remand the matter of the December 2008 claim for service connection for sleep apnea for further development, if necessary, and readjudication consistent with this decision.

Upon consideration of the foregoing, the Board's November 5, 2014, finding that Mr. Warren withdrew his appeal of the April 2009 RO decision is REVERSED, and the December 2008 claim for service connection for sleep apnea is REMANDED for further development, if necessary, and readjudication consistent with this decision.