Citation Nr: 1317448 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 10-49 200 ) DATE ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to special monthly compensation based on the need for regular aid and attendance. ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to July 1968. This appeal to the Board of Veterans' Appeals (Board) arises from an August 2010 rating decision of the Denver, Colorado Regional Office (RO) of the Department of Veterans' Affairs (VA), which denied the Veteran's claim for special monthly compensation based on the need for regular aid and attendance. The record shows that the Veteran was represented by a private attorney at the time of the August 2010 rating decision on appeal. In written correspondence dated in April 2012, the Veteran indicated that he had dismissed his attorney and desired to proceed pro se with his aid and attendance claim. Subsequent to the dismissal of his private attorney, the Veteran did not execute any new power of attorney. It is noted that the Veteran is service connected for generalized anxiety disorder with bipolar disorder and major depression (100 percent); bilateral hearing loss disability (30 percent); tinnitus (10 percent); and erectile dysfunction (0 percent). His combined disability rating is 100 percent from December 2002 and he receives special monthly compensation due to loss of a creative organ from October 2011. In a written statement from the Veteran dated December 2012, received by the Board in January 2013, the Veteran unambiguously requested "to withdraw my Appeal and claim for Aid and Attendance." Subsequently, in January 2013, he requested to "cancel my request to withdraw my appeal for Aid and Attendance due to the fact that I was just diagnosed with Squamous Cell Carcinoma and need help now with everyday items in addition to my PTSD [post traumatic stress disorder], Major Depressive Disorder, and Anxiety Disorder." However, because the Veteran clearly expressed a desire to withdraw the claim and did not attempt to reinstate his appeal within one year of notice of the rating decision or within 60 days of the Statement of the Case (December 2010), the Board finds that the claim for special monthly compensation based on the need for regular aid and attendance no longer remains on appeal. See generally 38 C.F.R. § 20.204 (2012). Accordingly, the Board finds that the attempt to reinstate the appeal is best construed as a new claim for benefits. Therefore, the claim for special monthly compensation based on the need for regular aid and attendance is referred to the RO for appropriate action. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. In regards to VA treatment records associated with the Virtual VA file, the record shows that these records were considered by the RO in the most recent Supplemental Statement of the Case. FINDINGS OF FACT 1. The Veteran in this case served on active duty from April 1966 to July 1968. 2. On January 2, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In a December 2012 statement that was received by the Board on January 2, 2013, the Veteran wrote: "I wish to withdraw my Appeal and claim for "Aid and Attendance . . .". As this statement was submitted in writing by the Veteran and contains a clear intent to withdraw his appeal. The Board concludes that it constitutes a withdrawal of his appeal of the denial of Aid and Attendance benefits. As noted in the Introduction, the Veteran subsequently submitted a statement asking to "cancel" his request to withdraw his appeal. Under 38 C.F.R. § 20.204(c), a withdrawal of an appeal will deemed a withdrawal of the Notice of Disagreement (NOD) and, if filed, the Substantive Appeal as to all issues in which the withdrawal applies. The Board observes that a withdrawal does not preclude filing a new NOD and, after a SOC is issued, a new Substantive Appeal as to any issue withdrawn, provided such filings would be timely if the withdrawal had never been filed. Id. However, in the present case, the Veteran's attempted cancellation of his withdraw did come within one year of notice of the rating decision on appeal (August 18, 2010) or within 60 days of the most Statement of the Case (December 2, 2010). Thus, the newly submitted statement may not be considered a timely substantive appeal of the denial of Aid and Attendance benefits. Based on the foregoing, the Board finds that the claim for special monthly compensation based on the need for regular aid and attendance no longer remains on appeal. See generally 38 C.F.R. § 20.204 (2012). Accordingly, the Board concludes that the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The appeal is of the August 2010 denial of Aid and Attendance benefits is dismissed. DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs