Citation Nr: 22019673
Decision Date: 04/02/22	Archive Date: 04/02/22

DOCKET NO. 18-39 976
DATE: April 2, 2022

ORDER

Entitlement to benefits under 38 U.S.C. § 1805 and 38 C.F.R. § 3.814 for a child born with spina bifida is dismissed.

Entitlement to benefits under 38 U.S.C. § 1815 and 38 C.F.R. § 3.815 for a child born with birth defects is dismissed.

FINDING OF FACT

In November 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant 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

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2017 decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the claim for spina bifida on the basis that the appellant did not provide evidence to verify he was the natural child of a Vietnam Veteran and denied the claim for birth defects on the basis that the appellant did not contend his mother has qualifying military service in Vietnam or Korea.

1. Entitlement to benefits under 38 U.S.C. § 1805 and 38 C.F.R. § 3.814 for a child born with spina bifida is dismissed.

2. Entitlement to benefits under 38 U.S.C. § 1815 and 38 C.F.R. § 3.815 for a child born with birth defects is dismissed.

Issues 1-2: 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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.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. Id.

An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by a veteran or by an authorized representative and must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action by the appellant. Acree v. O'Rourke, 891 F.3d 1009, 1012 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 5758 (2011); 38C.F.R. §19.55.

In the present case, the appellant timely appealed an April 2017 decision that denied entitlement to benefits under 38 U.S.C. § 1805 and 1815 for a child born with spina bifida and birth defects. See Notification letter (April 2017) and Notice of Disagreement (NOD) (August 2017). 

Thereafter, following certification of the appeal to the Board, the appellant notified the undersigned VLJ at a November 2021 Board hearing that he sought to withdraw the appeal. The appellant explicitly withdrew both issues; the claims for entitlement to benefits under 38 U.S.C. § 1805 for a child born with spina bifida and entitlement to benefits under 38 U.S.C. § 1815 birth defects. See Hearing Transcript (November 2021). This request was clear, unambiguous, and made with full understanding of the consequences. See DeLisio, 25 Vet. App. at 57 (2011); see also Acree, 891 F.3d at 1009. Hence, there remain no allegations of errors of fact or law for appellate consideration. 

Accordingly, the appeal is dismissed.

 

Rebecca N. Poulson

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.