15-04 548 ( 2018 )

Citation Nr: 1829934
Decision Date: 11/09/18 Archive Date: 11/21/18
DOCKET NO. 15-04 548 ) DATE
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Whether the September 13, 2018, Board decision denying educational assistance benefits under Title 38 of the United States Code, Chapter 33 (Post-9/11 GI Bill) should be vacated.
2. Entitlement to educational assistance benefits under Title 38 of the United States Code, Chapter 33 (Post-9/11 GI Bill).
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
M. C. Wilson, Counsel
INTRODUCTION
The Veteran had active service from May 2009 to August 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by a Department of Veterans Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. The Board denied educational assistance benefits under Title 38 of the United States Code, Chapter 33 (Post-9/11 GI Bill) in a September 13, 2018, decision.
2. Prior to the issuance of the September 13, 2018, Board decision, the Veteran withdrew his claim for benefits in July 2015.
CONCLUSIONS OF LAW
1. A vacate of the September 13, 2018, Board decision is warranted due to the Veteran's July 2015 withdrawal of the appeal. 38 U.S.C. §§ 7103(c), 7104(a) (2012); 38 C.F.R. § 20.904 (2017).
2. The criteria for withdrawal of the Veteran's appeal have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Vacate
The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In this case, the Veteran reported that he wished to withdraw the claim on appeal in July 2015, prior to the Board's September 13, 2018, decision denying the appeal. The Board finds therefore that it had no jurisdiction to issue the September 2018 decision and a vacate of the September 13, 2018, Board decision warranted.
Dismissal
The Board may dismiss any appeal that 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Here, in July 2015, the Veteran withdrew his appeal of VA's denial of his claim for educational benefits. Hence, there remain no allegations of errors of fact or law for appellate consideration and the Board does not have jurisdiction to review the appeal. The appeal is dismissed.
ORDER
The Board's September 13, 2018, decision is vacated and the appeal is dismissed.
____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals