Citation Nr: 1331442	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  12-02 472A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to a waiver of overpayment of VA death pension benefits in the original amount of $41, 872.00.  


REPRESENTATION

Appellant represented by:  Janice L. Gurney


ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 



INTRODUCTION

The Veteran had active service from December 1942 to February 1944.  

The Veteran died in February 1968.  The appellant is the Veteran's surviving spouse.

This case comes before the Board of Veterans' Appeals (Board) on appeal from the November 2010 creation of a VA death pension benefits overpayment by the Department of Veterans Affairs (VA).

The appellant was scheduled for a hearing before the undersigned Veterans Law Judge at the Regional Office (RO) in May 2013.  The appellant failed to report for her hearing and has not requested that it be rescheduled.  Therefore, her hearing request is deemed to have been withdrawn.  


FINDING OF FACT

In September 2013, prior to the promulgation of a decision in the appeal, the appellant's representative submitted a written statement indicating the appellant's desire to withdraw the issue on appeal.  


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been met.  38 U.S.C.A. §§ 7105(a), 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b)(c) (2013).



REASONS AND BASES FOR FINDING AND CONCLUSION

An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal.  38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2013).  The record shows that the appellant filed a timely notice of disagreement to the creation of the overpayment of death pension benefits and requested a waiver.  In addition, she perfected her appeal following the issuance of the statement of the case.

A substantive appeal may be withdrawn in writing by an appellant or an appellant's authorized representative at any time before the Board promulgates a decision.  38 C.F.R. § 20.204(b) (2013).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  A review of the record shows that, in a written statement received in September 2013 from the appellant's representative, the Board was notified that the appellant wanted to withdraw her appeal as the matter had been settled to her satisfaction.  

Having met the requirements of 38 C.F.R. § 20.204, the appellant has withdrawn her substantive appeal with respect to this issue.  Accordingly, the Board does not have jurisdiction to decide the appeal and it must be dismissed.


ORDER

The appeal is dismissed.



____________________________________________
BARBARA B COPELAND
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs