Citation Nr: 0813169 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 02-07 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to effective dates earlier than August 17, 1999 for the grants of service connection for retention cysts of both external canals, cervical spine strain with degenerative disc disease, lumbosacral strain with spondylolysis and spondylolisthesis and osteoarthritis of the thoracic spine, impingement of the right shoulder, and anesthesia of the lower lip and chin secondary to injury of the 5th cranial nerve with status post mandibular surgery. (The issue of entitlement to a waiver of recovery of an overpayment of VA disability compensation benefits in the amount of $2,370.00 for a dependant will be the subject of a separate decision.) REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military duty from February 1969 to February 1971 and from April 1980 to July 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2000 rating action of the Department of Veterans Affairs Regional Office (RO) in San Diego, California. In that decision, the RO, in pertinent part, granted service connection for the following disabilities: retention cysts of both external canals (0%, from August 17, 1999, cervical spine strain with degenerative disc disease (10%, from August 17, 1999), lumbosacral strain with spondylolysis and spondylolisthesis and osteoarthritis of the thoracic spine (20%, from August 17, 1999), impingement of the right shoulder (10%, from August 17, 1999), and anesthesia of the lower lip and chin secondary to injury of the 5th cranial nerve with status post mandibular surgery (10%, from August 17, 1999). After receiving notice of the July 2000 rating action, the veteran perfected a timely appeal with respect to the effective date assigned to these grants of service connection. FINDINGS OF FACT 1. In July 2000, the RO granted service connection for retention cysts of both external canals (0%, from August 17, 1999, cervical spine strain with degenerative disc disease (10%, from August 17, 1999), lumbosacral strain with spondylolysis and spondylolisthesis and osteoarthritis of the thoracic spine (20%, from August 17, 1999), impingement of the right shoulder (10%, from August 17, 1999), and anesthesia of the lower lip and chin secondary to injury of the 5th cranial nerve with status post mandibular surgery (10%, from August 17, 1999). 2. Following receipt of notification of the July 2000 decision, the veteran perfected a timely appeal with respect to the effective dates assigned to the grants of service connection for his bilateral ear, spine (cervical, lumbar, and thoracic), right shoulder, and lower lip/chin disabilities. 3. At the personal hearing conducted before the undersigned Veterans Law Judge at the RO in February 2008, the veteran withdrew from appellate review his earlier effective date claims. CONCLUSION OF LAW The criteria for the veteran's withdrawal of a Substantive Appeal with respect to the claims for effective dates earlier than August 17, 1999 for the grants of service connection for retention cysts of both external canals, cervical spine strain with degenerative disc disease, lumbosacral strain with spondylolysis and spondylolisthesis and osteoarthritis of the thoracic spine, impingement of the right shoulder, and anesthesia of the lower lip and chin secondary to injury of the 5th cranial nerve with status post mandibular surgery have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2007). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2007). In July 2000 in the present case, the RO the RO granted service connection for retention cysts of both external canals (0%, from August 17, 1999), cervical spine strain with degenerative disc disease (10%, from August 17, 1999), lumbosacral strain with spondylolysis and spondylolisthesis and osteoarthritis of the thoracic spine (20%, from August 17, 1999), impingement of the right shoulder (10%, from August 17, 1999), and anesthesia of the lower lip and chin secondary to injury of the 5th cranial nerve with status post mandibular surgery (10%, from August 17, 1999). After receiving notice of that determination, the veteran perfected a timely appeal with respect to the effective dates assigned to the grants of service connection for his bilateral ear, spine (cervical, lumbar, and thoracic), right shoulder, and lower lip/chin disabilities. At the February 2008 personal hearing, the veteran withdrew from appellate review his earlier effective date claims. In view of the veteran's expressed desires, the Board concludes that further action with regard to his earlier effective date claims is not appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.204 (2007). The Board does not have jurisdiction over these withdrawn issues and, as such, must dismiss the appeal of these claims. See 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2007). ORDER The claims for effective dates earlier than August 17, 1999 for the grants of service connection for retention cysts of both external canals, cervical spine strain with degenerative disc disease, lumbosacral strain with spondylolysis and spondylolisthesis and osteoarthritis of the thoracic spine, impingement of the right shoulder, and anesthesia of the lower lip and chin secondary to injury of the 5th cranial nerve with status post mandibular surgery are dismissed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs