Citation Nr: 20002994
Decision Date: 01/14/20	Archive Date: 01/14/20

DOCKET NO. 15-40 195
DATE: January 14, 2020

ORDER

Entitlement to recognition of the appellant as the surviving spouse of the Veteran for purposes of consideration for dependency and indemnity compensation (DIC) benefits is dismissed.

FINDING OF FACT

The appellant withdrew her claim for entitlement to recognition as the surviving spouse of the Veteran in an October 2019 written statement.

CONCLUSION OF LAW

The criteria for withdrawal of the issue of entitlement to recognition as the surviving spouse of the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.204.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1963 to July 1968. The Veteran died on active duty in July 1968. The appellant filed a claim seeking status and benefits as the Veteran’s surviving spouse.

The Board of Veterans’ Appeals (Board) acknowledges that the appellant requested the opportunity to testify during a Board hearing via videoconference. See November 2015 VA Form 9. A hearing was scheduled for October 2019. In October 2019, the appellant presented for the Board hearing and as a result of a pre-hearing conference, the appellant decided to withdraw the hearing request. See 38 C.F.R. § 20.704(d).

The claimant or the claimant’s representative may withdraw an appeal as to any or all issues on appeal. 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, withdrawal must be in writing. 38 C.F.R. § 20.204 (b)(1). A withdrawal is effective when received provided that receipt is prior to the issuance of a decision by the Board. 38 C.F.R. § 20.204 (b)(3). Withdrawal of a claim constitutes a withdrawal of the notice of disagreement and, if filed, the substantive appeal. 38 C.F.R. § 20.204 (c).

As a result of the October 2019 pre-hearing conference, the appellant also decided to withdraw her claim for entitlement to recognition as the surviving spouse of the Veteran. The appellant’s representative submitted a written correspondence stating that the appellant decided to withdraw all appeals pending at the Board as she fully concurs that she is not eligible for DIC at this time due to her remarriage prior to age 57. The appellant was represented for this issue and is presumed to understand the effect of that determination.

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The Board may dismiss any appeal which fails to allege a specific error of fact or law. 38 U.S.C. § 7105 (d)(5) (2012); 38 C.F.R. § 20.202 (2018). There is no obligation to proceed with further adjudication following withdrawal. Hanson v. Brown, 9 Vet. App. 29 (1996). Therefore, the claim is dismissed.

 

Irvin Cannaday

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Frazier, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.