Citation Nr: 21026753
Decision Date: 05/03/21	Archive Date: 05/03/21

DOCKET NO. 16-15 629
DATE: May 3, 2021

ORDER

Entitlement to service connection for a right eye cancer is dismissed.

FINDING OF FACT

In April 2019, the Veteran, via counsel, withdrew his claim for service connection for right eye cancer.

CONCLUSION OF LAW

There remains no case or controversy as to the issue of accrued benefits for service connection for a right eye cancer.  38 U.S.C. § 7105(b), (d)(5); 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1970 to March 1974.  The Veteran died in April 2020.  The appellant is the surviving spouse of the Veteran, and has been substituted as the appellant in this case.  See March 2021 letter.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In March 2018 the Veteran testified at a travel Board hearing with the undersigned Veterans Law judge (VLJ).

The Veteran, via counsel, submitted correspondence withdrawing this claim in April 2019.  Thereafter, the RO continued the claim in an October 2019 SSOC and the Board notified the Veteran via April 2020 letter that clarification was needed as to whether he wished to withdraw the claim.  Unfortunately, the Veteran died in April 2020 prior to responding to the withdrawal clarification letter.  

The matter was dismissed in May 2020 upon the death of the Veteran in April 2020.  The appellant was thereafter denied substitution, and the Board dismissed the case for no case or controversy in November 2020.  Thereafter, the appellant was granted substitution in a March 2021 letter and the case is before the Board again.  

In a January 2021 statement in support of the claim, the appellant's attorney outlined the procedural history of the issues before the Board.  In particular, the attorney referenced that in April 2019, the Veteran, through counsel, withdrew his claim for entitlement to service connection for a right eye disability.  The appellant's attorney also noted that the last sentence in the October 2019 SSOC noted that "as requested by you, through your power of attorney, your request for entitlement to service connection for cancer of the right eye, to include as due to herbicide exposure is withdrawn."

The Board concludes that based on a review of the April 2019 letter, October 2019 SSOC, and January 2021 statement in support of the claim, it was the Veteran's intent to withdraw the claim for service connection for right eye cancer.  The Board concludes that the January 2021 statement clarifies any reasonable doubt as to the Veteran, and now appellant's, intent.  38 C.F.R. § 19.55.  Accordingly, the Board finds that the appeal as to this issue has been withdrawn.

It is a well-established judicial precedent that when there is no case or controversy, or when a once live case or controversy becomes moot, there is no jurisdiction.  See Bond v. Derwinski, 2 Vet. App. 376, 377(1992).  In light of the above, there is no case or controversy currently before the Board regarding the issue of accrued benefits for a right eye cancer.  Consequently, the appeal with respect to this issue must be dismissed.

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nadia Kamal, 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.