Citation Nr: 21075183
Decision Date: 12/17/21	Archive Date: 12/17/21

DOCKET NO. 19-31 030
DATE: December 17, 2021

ORDER

As the appellant has withdrawn the appeal for entitlement to benefits under 38 U.S.C. §§ 1805 and 1815 for a child born with spina bifida or other covered birth defects, the appeal is dismissed.

FINDING OF FACT

In September 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.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. 

In the present case, the appellant has withdrawn this appeal.

In March 2019, VA received a Notice of Disagreement with a January 2019 decision, where the AOJ denied the claim of entitlement to benefits under 38 U.S.C. §§ 1805 and  1815 for a child born with spina bifida or birth defects. The AOJ explained the denial was predicated on the fact that the appellant did not have a diagnosis of spina bifida and the appellant reported his mother did not have qualifying military service in Vietnam. VA also received a properly executed power of attorney, naming T.B. his representative. See Power of Attorney VA Form 21-22a (March 2019). 

In October 2019, the AOJ issued a Statement of the Case and the appellant filed a substantive appeal in response. Form 9 (October 2019). The matter was certified for appellate consideration in March 2020. The Board afforded the appellant a hearing in August 2021 and took testimony from the appellant as well as his mother, L.L. 

Subsequently, in a September 2021 statement, the appellant, by and through his representative, expressed a desire to withdraw the appeal. Of note, the representative acknowledged the appellant was not currently eligible for benefits, as his specific circumstances did not fall under any of the exceptions carved out by congress. Namely, for a dependent to be eligible for a monetary allowance under 38 C.F.R. § 3.814, the father of the dependent had to have been present in Vietnam and the only disability covered [by regulation] is spina bifida. Monetary allowances under 38 C.F.R. § 3.815[for children born with birth defects] also did not apply to the appellant because his condition, acute myeloid leukemia (AML) was not listed as one of the disabilities covered by the statute. While the appellant has expert medical testimony and research that shows a connection between herbicide agent exposure and the development of AML in children of parents exposed to herbicide agents, the current statutes giving monetary allowance to dependence does not recognize the connection. Because of the inability to identify a judicial remedy for the appellant's issue, the appellant is choosing to not proceed with the appeal.

Collectively, the criteria to withdraw the appeal have been met. The September 2021 statement included the claims number and was signed by the appellant's representative. The statement reflects the appellant expressed intent to withdraw the appeal pending before VA, explicitly lists the claims, and was signed and dated. As such, the withdrawal is both explicit and unambiguous. 

As the appellant has withdrawn this appeal, 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.

 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Pendleton, N.

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.