Citation Nr: 1336396 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 08-39 306 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to non-service-connected pension benefits for the period beginning May 1, 2008. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active duty service from October 1966 to October 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2008 letter of determination by a Department of Veterans Affairs (VA) Regional Office (RO), which found the Veteran ineligible for VA pension benefits beginning February 1, 2005. In a February 2011 decision, the Board dismissed the issue as to the period from February 1, 2005, to April 30, 2008, and remanded the issue of entitlement to non-service-connected pension benefits for the period beginning May 1, 2008. In that remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain the Veteran's Income Verification Match (IVM) folder, as well as any documents reflecting payment to the Veteran of pension benefits since May 1, 2008, and tax documents relevant to the claim. The AOJ obtained the identified documents and issued the Veteran a supplemental statement of the case (SSOC) in December 2011. Thus, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and considered as part of this appeal. The Veteran indicated in his December 2008 substantive appeal that he wished to appear at a hearing before a Veterans Law Judge. The requested hearing was scheduled for November 2010; however, the Veteran failed to appear for his hearing. FINDINGS OF FACT 1. In an August 2011 written statement, the Veteran expressed his belief that he was not entitled to pension benefits for the period from May 1, 2008, to October 1, 2009, as he was gainfully employed during that time. 2. In a statement received by VA on September 14, 2009, the Veteran notified VA that his employment had been terminated and filed for entitlement to non-service-connected pension benefits. 3. A March 2010 decision issued by the VA Regional Office and Insurance Center in Philadelphia, Pennsylvania, granted the Veteran entitlement to non-service-connected pension benefits effective from October 1, 2009, the first day of the month following the month in which the Veteran's new claim for non-service-connected pension benefits was filed. CONCLUSION OF LAW The appeal pertaining to entitlement to non-service-connected pension benefits for the period from May 1, 2008, is dismissed; as to the period from May 1, 2008, to October 1, 2009; the Veteran has withdrawn any claim for benefits, and entitlement to non-service-connected pension benefits was re-established effective October 1, 2009. There remains no justiciable case or controversy before the Board at this time. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION A brief recitation of the facts and procedural history in this case will be, the Board suspects, beneficial. As noted in the Introduction above, the Veteran initially filed a claim seeking entitlement to non-service-connected pension benefits, which were granted effective from February 1, 2005. The ensuing appeal resulted from the RO's termination of his pension benefits, which led to an overpayment of benefits that the Veteran had received for the period from February 1, 2005, to April 30, 2008. As noted in the Board's February 2011 decision, that overpayment was waived; thus, as the Board ruled at that time, there was no justiciable issue as to entitlement to non-service-connected pension benefits from February 1, 2005, to April 30, 2008. However, it was unclear from the record before the Board in February 2011 as to whether the Veteran was in receipt of pension benefits at any time from May 1, 2008; thus, the Board remanded for further documentation and clarification of that issue. Pursuant to the Board's remand, documents have been associated with the claims file that indicate that the Veteran was gainfully employed for part of 2008 and 2009, with his employment terminated in August 2009. Following his termination of employment, he filed a new claim for pension benefits, which was received by VA on September 14, 2009. By a decision dated in March 2010, the Philadelphia RO granted the Veteran's claim of entitlement to non-service-connected pension benefits effective as of October 1, 2009. In addition, the Veteran submitted a letter dated in August 2011 in which he stated, "I respectfully do NOT feel that I would be entitled to any pension benefits for the period of May 1, 2008 to October 1, 2009, as I was working during part of 2009 at a substantial wage." The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. § 20.202 (2013). A substantive appeal may be withdrawn in writing and is effective when received by the RO prior to the appeal being transferred to the Board, or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b) (2013). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a) (2013). By an August 2011 statement, prior to the issuance of a decision by the Board, the Veteran indicated that he does not believe he is entitled to non-service-connected pension benefits for the period from May 1, 2008, to October 1, 2009. This was communicated in writing. The Board finds this statement compelling evidence that, to the extent that a claim for pension benefits for the period in question was outstanding at the time of the statement, the Veteran wishes to withdraw such a claim. Thus, there remain no allegations of errors of fact or law for appellate consideration concerning the issue of entitlement to non-service-connected pension benefits for the period from May 1, 2008, to October 1, 2009. Accordingly, the Board will dismiss the appeal as to that period. Further, as to the period from October 1, 2009, the Veteran is currently in receipt of non-service-connected pension benefits. The issue of entitlement to pension benefits for that period is no longer in controversy, as the Veteran is currently receiving the benefits sought. Thus the issue of entitlement to pension benefits for the period beginning October 1, 2009, is moot, and the appeal as to the claim of entitlement to non-service-connected pension benefits from October 1, 2009, is thus dismissed. ORDER The appeal as to the claim of entitlement to non-service-connected pension benefits for the period beginning May 1, 2008, is dismissed. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs