Citation Nr: 21002076
Decision Date: 01/12/21	Archive Date: 01/12/21

DOCKET NO. 19-34 298
DATE: January 12, 2021

ORDER

The appeal seeking to establish that a timely and valid notice of disagreement (NOD) was received as to an April 2015 rating decision is dismissed.

FINDING OF FACT

In June 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he desired to withdraw his appeal.

CONCLUSION OF LAW

Regarding the claim seeking to establish that a timely and valid NOD was received as to an April 2015 rating decision, the criteria for withdrawal of an appeal by the Veteran have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is a Veteran who served on active duty in the Navy from August 1967 to September 1979.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2018 administrative determination of a Department of Veterans Affairs (VA) Regional Office (RO) that the Veteran had not filed a valid or timely NOD as to an April 2015 rating decision.  In his November 2019 substantive appeal, the Veteran requested a Board videoconference hearing.  

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 19.55.  

Here, the Veteran sent a written statement in June 2020, indicating that he desired to withdraw his appeal.  Hence, there remain no allegations of error of fact or law for appellate consideration in the matter.  Accordingly, the Board does not have jurisdiction to review the appeal in the matter, and it must be dismissed.

Regarding the Veteran’s request for a Board hearing, a November 2020 Board letter to the Veteran indicated that he was scheduled for a videoconference hearing in the latter part of January 2021 and had an opportunity for a virtual tele-hearing instead.  In a telephone call to the Board in early January 2021, he indicated that he was electing a virtual tele-hearing.  This election, however, came after the Veteran’s June 2020 statement, wherein he expressed his wish to “withdraw any consideration of an appeal,” and that he was satisfied with the recent RO decision that awarded him service connection for ischemic heart disease, rated 100 percent, effective in January 2015.  In other words, the Board’s November 2020 letter was issued in error as the Veteran had already indicated that he no longer wished to pursue any appeal.  

Also, the appealed matter of the validity or timeliness of the NOD, was inextricably intertwined with the ischemic heart disease claim in terms of the effective date of the award, and was rendered moot by the February 2020 RO rating decision which established the effective date of the award as the date of receipt of the original (as opposed to a reopened) claim. 

 

 

George R. Senyk

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Debbie Breitbeil, 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.