Citation Nr: 21027008
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 15-01 160
DATE: May 4, 2021

ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include mood disorder and depression, 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 that a withdrawal of this appeal was requested. 

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant or his authorized representative have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.204(b) (redesignated as 38 C.F.R. § 19.55(b), effective February 19, 2019).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, the appellant, served on active duty from July 1970 to June 1972.  

A Board video-conference hearing was held in November 2018 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. 

Withdrawal of Claim

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.205.  An appeal withdrawal is effective when received by the Board.  38 C.F.R. § 20.205(b)(3).  Withdrawal may be made by the Veteran or by his authorized representative.  38C.F.R. § 20.205.  

In the present case, the Veteran confirmed he did not want a VA examination and wished to "drop his appeal" in a November 2019 telephone call with VA, which was memorialized in a VA Form 27-0820 (Report of General Information) that contained the Veteran's name, VA file number and note that he wished to withdrawal his claim.  In a January 2021 appellate brief, the authorized representative reiterated the Veteran's request to withdraw his appeal, albeit presented argument in the alternative.  

The Board finds that the criteria for withdrawal of this appeal have been met.  The writing component was satisfied by the AOJ's memorialization of the November 2019 phone conversation via a Report of General Information prepared contemporaneous in time with the phone call.  This is similar to the facts found in Hanson v. Brown, 9 Vet. App. 29 (1996), which involved a written notation of the veteran's discussion with a social worker.  In Hanson, the Court held that a withdrawal was valid because there was no indication that the veteran was misguided or lacked understanding of the consequences of his actions.  Further, the Court in Hembree v. Wilkie, 33 Vet. App. 1, 5-8 (2020) has held that written requests to withdraw an issue on appeal in the legacy system are governed by 38 C.F.R. § 20.204(b) (redesignated as 38 C.F.R. § 19.55(b), effective February 19, 2019), as opposed to the standard set forth in DeLisio v. Shinseki, 25 Vet. App. 45, (2011) and adopted in Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). 

Applying the relevant VA regulation, the Board finds the Veteran properly withdrew his claim.  Thus, 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.

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Moldawer, 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.