Citation Nr: 1307992	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  09-46 880A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement an effective date prior to August 27, 2008, for the payment of additional compensation based upon the dependency of the Veteran's spouse. 


REPRESENTATION

Veteran represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

Debbie A. Breitbeil, Counsel



INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 1967 to October 1971.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which assigned an effective date of August 27, 2008, for the payment of additional compensation based upon the dependency of the Veteran's spouse.

The issue of entitlement to a rating higher than 30 percent for ischemic heart disease has been raised by the Veteran in a February 2013 statement but has not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action.  


FINDING OF FACT

Prior to the promulgation of a decision in the appeal, the Board received written notification dated in February 2013 from the Veteran and his representative in which it was indicated that the Veteran intended to withdraw his appeal seeking an effective date prior to August 27, 2008, for the payment of additional compensation based upon the dependency of the Veteran's spouse; there is no question of fact or law remaining before the Board in this matter. 


CONCLUSION OF LAW

Regarding the claim of entitlement to an effective date prior to August 27, 2008, for the payment of additional compensation based upon the dependency of the Veteran's spouse, the criteria for withdrawal of an appeal by the Veteran have been met; the Board has no further jurisdiction in this matter.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

A.  Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Although the VCAA applies to the instant claim, further discussion of the impact of the VCAA is not necessary in light of the Veteran's expression of intent to withdraw his appeal in the matter.

B.  Legal Criteria, Factual Background, and Analysis

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204. 

The Board received statements dated in February 2013 from the Veteran and his representative, in which it was expressed that the Veteran desired to withdraw his appeal seeking an effective date prior to August 27, 2008, for the payment of additional compensation based upon the dependency of the Veteran's spouse.  Hence, there is no allegation of error of fact or law for appellate consideration on this claim.  Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed. 



ORDER

The appeal seeking an effective date prior to August 27, 2008, for the payment of additional compensation based upon the dependency of the Veteran's spouse, is dismissed.  



____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs