**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

**[No. 03-0947]{.smallcaps}**

**[Jacob Kalman, Appellant,]{.smallcaps}**

**[v.]{.smallcaps}**

**[Anthony J. Principi,]{.smallcaps}**

**[Secretary of Veterans Affairs, Appellee.]{.smallcaps}**

**On Appeal from the Board of Veterans\' Appeals**

**(Decided December 21, 2004 )**

***Sean Kendall*, of Boulder, Colorado, was on the brief for the
appellant.**

***Tim S. McClain*, General Counsel; *R. Randall Campbell*, Assistant
General Counsel; *Carolyn F. Washington*, Deputy Assistant General
Counsel, and *Lavinia Derr*, all of Washington, D.C., were on the brief
for the appellee.**

**Before IVERS, *Chief Judge*, and GREENE and KASOLD, *Judges*.**

**KASOLD, *Judge*: Veteran Jacob Kalman appeals through counsel a
September 13, 2002, decision of the Board of Veterans\' Appeals (Board)
that dismissed his appeal on the basis that he had withdrawn his
Substantive Appeal to the Board. Mr. Kalman requests reversal, arguing
that the Board erred in its determination that the Substantive Appeal
had been withdrawn because that determination did not comply with the
regulatory requirements. Appellant\'s Brief (Br.) at 6-8. The Secretary
argues that the Board\'s decision was supported by a plausible basis in
the record and urges the Court to affirm. Secretary\'s Br. at 5-8. For
the reasons set forth below, the Board\'s decision will be reversed and
the matter remanded.**

**I. BACKGROUND**

**Mr. Kalman served on active duty in the U.S. Air Force from October
1956 to March 1960. Record (R.) at 8. Four months after service, he
claimed service connection for residuals of anterior-chest-wall trauma,
which was granted with a noncompensable rating. R. at 40-43, 62-63. In
early 1999, Mr. Kalman sought a compensable rating for his
service-connected anterior-chest-wall trauma and sought service
connection for, inter alia, hiatal hernia, psoriasis, bipolar disorder,
and obsessive-compulsive personality disorder. R. at 65-66, 73-74,
78-80. A VA regional office (RO) denied the claims (R. at 130-35), and
Mr. Kalman filed a Notice of Disagreement (R. at 141, 152). Mr. Kalman
was subsequently awarded service connection for a bipolar disorder.
R. at 2, 274.**

**In June 2000, during a hearing before the RO, Mr. Kalman verbally
perfected his appeal to the Board by submitting his testimony during the
hearing in lieu of a written Substantive Appeal. R. at 206-07. In
January 2002, the RO sent to Mr. Kalman a letter informing him that his
appeal was perfected as to his claims for, inter alia, service
connection for psoriasis and obsessive-compulsive personality disorder
and for his claim for an increased rating for residuals of his
service-connected anterior-chest-wall trauma. R. at 285. The RO also
stated: \"The only issue that remains relative to your appeal inquiry,
which you must clarify, is whether you want a Board of Veteran\'s
\[sic\] Appeals\' \[sic\] . . . Travel Board Hearing or a \[Board\]
Video Conference . . . .\" R. at 285. On January 22, 2002, Mr. Kalman
responded by letter, stating: \"\[Y\]ou refer to \'the only issue that
remains to your appeal inquiry, which you must clarify.\' \[sic\] Since
you did not specifically name *that issue*\[,\] I reluctantly have to
assume that it is the chest\[-\]wall trauma . . . . *That is the only
issue remaining* . . . .\" R. at 288 (former emphasis added; latter
emphasis in original). At some point, Mr. Kalman did request a
video-conference hearing.**

**At the Board video-conference hearing, a Board member indicated that
the issue before the Board was \"increased rating for bipolar
disorder,\" to which Mr. Kalman\'s representative replied: \"No, there
was some chest trauma in service \[for\] which he was given a \[0%\]
rating . . . . They found out that it was misdiagnosed. The correct
diagnosis was a hiatal hernia . . . .\" R. at 298. Mr. Kalman then
testified about both the hernia and the chest-wall trauma. R. at 301-05.
At the end of the testimony, when asked whether there was anything else
Mr. Kalman wished to cover, his representative stated: \"No, I don\'t
think there is any other issue. Although we thought there was in the
beginning.\" R. at 305.**

**In its September 2002 decision, the Board referred the hiatal-hernia
claim to the RO because no rating decision had been issued on that
claim. R. at 2. The Board dismissed the claims of service connection for
psoriasis and obsessive-compulsive personality disorder and the claim
for a compensable evaluation for residuals of anterior-chest-wall trauma
\"without prejudice,\" finding that Mr. Kalman had withdrawn those
claims. R. at 4. In doing so, the Board found that Mr. Kalman
\"essentially asserted\" that service connection for hiatal hernia was
warranted and that was \"the only issue remaining.\" *Id.* The Board
also noted that, at the hearing before the Board, Mr. Kalman addressed
only the issue of service connection for the hiatal hernia and, when
asked whether there were any other issues, Mr. Kalman\'s representative
stated: \"No, I don\'t think there is any other issue.\" *Id.***

**II. ANALYSIS**

**When reviewing the question of a claimant\'s withdrawal of an appeal
to the Board, the Court must take into consideration \"the
nonadversarial setting of the \[VA\] claims adjudication process,\"
*Isenbart v. Brown*, 7 Vet.App. 537, 541 (1995), during which VA is
required to construe liberally all submissions by a claimant, *see EF v.
Derwinski*, 1 Vet.App. 324, 326 (1991); *see also Verdon v. Brown*,
8 Vet.App. 529, 533 (1996) (holding that when it is ambiguous whether a
claim is withdrawn in a written letter, \"it is not sufficient for the
Board to conclude there was an abandonment without providing an adequate
statement of reasons or bases to support that conclusion\"); 38 C.F.R.
§ 20.202 (2004) (arguments within the Substantive Appeal to Board will
be construed \"in a liberal manner for purposes of determining whether
they raise issues on appeal\"). The Board\'s determination on whether
Mr. Kalman\'s January 2002 response to the RO constituted a withdrawal
of his appeal is a finding of fact that the Court reviews under the
\"clearly erroneous\" standard of review set forth in 38 U.S.C.
§ 7261(a)(4) (Court shall \"hold unlawful and set aside\" clearly
erroneous factual findings ). *Cf. Hanson v. Brown*, 9 Vet.App. 29, 32
(1996) (applying \"clearly erroneous\" standard of review involving
withdrawal of a claim at the RO). \"\'A finding is \'clearly erroneous\'
when although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a
mistake has been committed.\'\" *Gilbert v. Derwinski*, 1 Vet.App. 49,
52 (1990) (quoting *United States v. U.S. Gypsum Co.*, 333 U.S. 364, 395
(1948)). If the Board\'s \"\'account of the evidence is plausible in
light of the record viewed in its entirety, the court of appeals may not
reverse it.\'\" *Gilbert*, *supra* (quoting *Anderson v. City of
Bessemer City*, 470 U.S. 564, 573-74 (1985)).**

**At the time of the Board hearing in this case, the regulations
provided that an appeal could be withdrawn only in a writing, submitted
prior to the Board\'s promulgated decision and, if an appeal was filed
by the claimant, an authorized representative could submit a withdrawal
on his behalf only if he had the \"express written consent\" of the
claimant. 38 C.F.R. § 20.204(b), (c) (2002). In finding that Mr. Kalman
effectively withdrew his claims for service connection for psoriasis and
obsessive-compulsive personality disorder and the claim for a
compensable evaluation for residuals of anterior-chest-wall trauma, the
Board relied on (1) Mr. Kalman\'s January 2002 letter stating that \"the
only issue remaining\" was for a compensable evaluation for residuals of
anterior-chest-wall trauma, (2) the statements by Mr. Kalman and his
representative at the Board hearing that there were no other issues than
the issue of service connection for a hiatal hernia, and (3) the failure
of Mr. Kalman or his representative to address the other claims during
the Board hearing. R. at 4.**

**The reference in Mr. Kalman\'s letter to \"the only issue remaining\"
must be understood in its context. Mr. Kalman\'s letter and comment were
in response to the RO\'s January 2002 letter to him in which the RO
explicitly noted that the issues of service connection for psoriasis and
for obsessive-compulsive personality disorder and the claim for a
compensable rating for residuals of the service-connected
anterior-chest-wall trauma were perfected for appeal. The RO then stated
that the only issue that remained regarding the appeal was whether Mr.
Kalman wanted a Travel Board or video-conference hearing. His response
never stated that he was withdrawing his appeal or any portion thereof,
and it was never recognized as such prior to the Board decision. The
Board decision reflects the issues on appeal as entitlement to service
connection for psoriasis and for obsessive-compulsive personality
disorder and a compensable evaluation for residual anterior-chest-wall
trauma. R. at 1. If Mr. Kalman\'s response had effected a withdrawal of
these issues, then they would not have been before the Board. \"When
claims are withdrawn, they cease to exist.\" *Hanson*, 9 Vet.App. at
32.**

**The Board\'s reliance on the oral statements of Mr. Kalman or of his
representative to serve as a withdrawal of his appeal or any portion
thereof is also misplaced. First, the regulations in effect did not
recognize an oral statement as a permitted means to withdraw an appeal.
*See* 38 C.F.R. § 20.204(b). Second, since Mr. Kalman filed his own
appeal to the Board, a withdrawal of that appeal presented by his
representative could be effective only if based on Mr. Kalman\'s
\"express written consent\", and there is no evidence that such consent
was ever given. *See* 38 C.F.R. § 20.204(c). Third, the statements that
there were no other issues simply does not rise to a withdrawal of an
appeal. *Cf. Isenbart*, 7 Vet.App. at 541 (holding that the words \"no
additional issues\" spoken at RO hearing do not provide \"the formality
or specificity\" required to constitute a withdrawal under 38 C.F.R.
§ 20.204(a)). At best, a comment at the Board hearing that there are no
other issues means that the case is submitted on the record,
particularly given that a Board hearing is entirely the veteran\'s
choice. *See generally* 38 U.S.C. § 7104(a) (Board will afford claimant
a hearing); 38 C.F.R. § 20.700 (2004) (hearing granted upon claimant\'s
request). Finally, the Court notes that at the hearing both Mr. Kalman
and his representative made repeated references to the events
surrounding his anterior-chest-wall trauma and the residual effects
thereof, thereby contradicting any finding that an appeal of this issue
had been abandoned or withdrawn. *See* R. at 298-300.**

**Considering the above deficiencies in the Board\'s decision, on the
record as a whole, the Court is left with the definite and firm
conviction that the Board erred and that its decision is not plausible.
Therefore, the Court holds that the Board\'s determination that Mr.
Kalman withdrew his appeal is clearly erroneous, *see* *Gilbert*,
*supra*, and the decision will be reversed. *See* 38 U.S.C.
§ 7261(a)(4).**

**The Secretary urges the Court to affirm because the Board\'s decision
is supported by a plausible basis in the record. In making this
argument, however, the Secretary relies upon a version of the
regulations promulgated after the Board\'s September 2002 decision.
*See* Secretary\'s Br. at 5-8; *see also* Board of Veterans\' Appeals:
Rules of Practice--Appeal Withdrawal, 68 Fed. Reg. 13,235 (March 19,
2003); *compare* 38 C.F.R. § 20.204 (2004) *with* 38 C.F.R. § 20.204
(2002); R. at 1. The Secretary does not indicate why he believes the
newly promulgated regulation is applicable in this case. In light of the
Court\'s reversal of the Board\'s decision based on the regulation in
effect at the time of the purported withdrawal of Mr. Kalman\'s appeal,
there is no need to address the new regulation further.**

**On remand, Mr. Kalman will have the opportunity to present any
additional evidence and argument in support of his claims, and the Board
must consider any evidence and argument so presented. *See Kay v.
Principi*, 16 Vet.App. 529, 534 (2002). The Court expects that the
Secretary will provide expeditious treatment of this matter on remand.
*See* 38 U.S.C. § 7112.**

**III. CONCLUSION**

**Upon consideration of the foregoing, the decision of the Board as to
Mr. Kalman\'s claims of service connection for psoriasis and
obsessive-compulsive personality disorder and the claim for entitlement
to a compensable evaluation for residuals of anterior-chest-wall trauma
is REVERSED, the appeal to the Board as to those claims is reinstated,
and the matter is REMANDED for proceedings consistent with this opinion.
The Board\'s decision to refer the hiatal-hernia claim to the RO is
undisturbed.**

**REVERSED and REMANDED.**