Citation Nr: 20006636
Decision Date: 01/28/20	Archive Date: 01/27/20

DOCKET NO. 19-18 186
DATE: January 28, 2020

ORDER

The appeal regarding entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 is dismissed.

FINDING OF FACT

In November 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant’s representative that she wished to withdraw her appeal as to the issue of entitlement to DIC under 38 U.S.C. § 1318.

CONCLUSION OF LAW

The criteria for withdrawal of the substantive appeal regarding the issue of entitlement to DIC under 38 U.S.C. § 1318 have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from April 1963 to September 1966.  He died in February 2018 and the appellant is his surviving spouse.

This case comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO, which denied the appellant’s claim for DIC under 38 U.S.C. § 1318 as well as her claim for service connection for the cause of the Veteran’s death.  The appellant’s notice of disagreement addressed both issues.  However, the statement of the case issued in March 2019 addressed only the § 1318 issue.

To the extent that the appellant has filed a notice of disagreement with the denial of service connection for the cause of the Veteran’s death, such appeal is contained in the VACOLS appeals tracking system as an active appeal at the RO. While the Board is cognizant of the Court’s decision in Manlincon v. West, 12 Vet. App. 238 (1999), the Board notes that in this case, unlike in Manlincon, the RO has fully acknowledged the NOD and is currently in the process of adjudicating the appeal. Action by the Board at this time may serve to actually delay the RO’s action on that appeal. As such, no action will be taken by the Board at this time, and the issue of entitlement to service connection for the cause of the Veteran’s death, presently before the RO, will be the subject of a later Board decision, if ultimately necessary.

1. Entitlement to Dependency and Indemnity Compensation (DIC) under 38 U.S.C. § 1318 

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. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. 

In the instant case, prior to the promulgation of a decision in the present appeal, the appellant’s representative, via written statement received by the Board in November 2019, indicated that she wished to withdraw her appeal as to the issue of entitlement to DIC under 38 U.S.C. § 1318, which is the only issue properly before the Board at this time. 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.

 

 

D. JOHNSON

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. G. Mazzucchelli, 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.