McDermott Secures Precedential Federal Circuit Victory for Pro Bono Client


WASHINGTON, DC — A pro bono team of McDermott Will & Emery attorneys achieved a precedential victory in the US Court of Appeals for the Federal Circuit on behalf of pro bono client Lawrence J. Acree. The decision, issued on June 4, 2018, establishes that veterans must have a full understanding of the consequences of withdrawing a claim for disability benefits for the withdrawal to be effective.

A decorated navy veteran, Acree pursued a number of claims for disability benefits before the Board of Veterans Appeals (BVA) – including a PTSD claim. During a hearing in September 2014, Acree responded “yes” to a question from a BVA hearing officer regarding his intent to withdraw seven of his 11 claims, but the BVA adduced no evidence and made no findings regarding Acree’s understanding as to withdrawal of claims on the record during a hearing. The BVA dismissed the seven claims as withdrawn.

On appeal to the Court of Appeals for Veterans Claims (CAVC), McDermott argued that the record did not demonstrate that Acree withdrew his claims with a full understanding of the legal concept of claim withdrawal or the consequences of forfeiting these claims. The CAVC affirmed the decision of the BVA, which has now been vacated and remanded by the Federal Circuit.

Deciding an issue of first impression, the Federal Circuit adopted the legal standard of an earlier decision interpreting a federal regulation governing claim withdrawal (38 C.F.R. § 20.204(a)). The standard, which McDermott had urged the CAVC to follow, says withdrawal on the record at a hearing is only effective when the withdrawal was “(1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences.” Requiring that the BVA and the CAVC adhere to the three-part standard ensures that pro se veterans possess a complete understanding of the issues being adjudicated

“We are pleased that the Federal Circuit adopted a standard that will benefit our client and other veterans who pursue service-connected benefits going forward,” said McDermott Intellectual Property partner Natalie Bennett, who argued before the Federal Circuit. “This decision not only reinforces consistent application of the law but protects the rights of veterans who may not have access to legal counsel or are otherwise impaired by the psychological trauma they experienced in service to their country.”

In addition to Bennett, the McDermott team consisted of Hersh Mehta, David Mlaver and Michael Rodgers.

The case is Lawrence J. Acree v. Peter O’Rourke, Acting Secretary of Veterans Affairs in the US Court of Appeals for the Federal Circuit, and the full opinion can be found here.

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