Citation Nr: 1318775	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  13-01 842	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Whether new and material evidence has been received to reopen the appellant's claim of entitlement to service connection for the cause of the Veteran's death.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. T. Hutcheson, Counsel



INTRODUCTION

The Veteran had active service from July 1969 to March 1971.  He served in the Republic of Vietnam.  The Veteran died in March 1991.  The appellant is the Veteran's widow.  

This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision of the Milwaukee, Wisconsin, Pension Management Center which determined that new and material evidence had not been received to reopen the appellant's claim of entitlement to service connection for the cause of the Veteran's death and denied entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 (West 2002).  In July 2011, the appellant submitted a notice of disagreement.  In October 2012, the Indianapolis, Indiana, Regional Office (RO) issued a statement of the case to the appellant.  The RO determined therein that new and material evidence had been received to reopen the appellant's claim of service connection for the cause of the Veteran's death and denied the claim on the merits.  In November 2012, the appellant submitted an Appeal to the Board (VA Form 9) solely from the denial of service connection for the cause of the Veteran's death.  The Board has reviewed both the physical claims file and the "Virtual VA" file so as to insure a total review of the evidence.   

As to the issue of whether new and material evidence has been received to reopen the appellant's claim of entitlement to service connection for the cause of the Veteran's death, the Board is required to consider the question of whether new and material evidence has been received to reopen the appellant's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).  

FINDING OF FACT

On May 15, 2013, prior to the promulgation of a decision in this appeal, the appellant's accredited representative expressly withdrew the appellant's substantive appeal.  


CONCLUSION OF LAW

The criteria for withdrawal of the appellant's substantive appeal from the determination that new and material evidence has not been received to reopen her claim of service connection for the cause of the Veteran's death have been met.  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

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2012).  Withdrawal may be made by the appellant or by her authorized representative.  38 C.F.R. § 20.204 (2012).  In a May 15, 2013, written statement, the appellant's accredited representative expressly withdrew the appellant's substantive appeal.  He asserted that "she saw no further need to plead her case before a judge and withdraws her appeal."  The Board finds that no allegation of error of fact or law for appellate consideration remains as to the issue of whether new and material evidence has been received to reopen the appellant's claim of entitlement to service connection for the cause of the Veteran's death.  Therefore, it is dismissed.  


ORDER

The appeal is dismissed.  



		
K. J. ALIBRANDO
	Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs