Citation Nr: 0814652 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 04-19 948 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an evaluation in excess of 10 percent for the service-connected residuals of a crush injury to the right index, middle, ring, and little fingers, with fragmentation of the tip of the fifth distal phalanx of the right little finger, with tender scar. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from April 1982 to August 1991, and active duty for training from August 19, 1991 to August 23, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 RO rating decision. The veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in January 2006. In February 2006, the Board remanded the appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC. FINDING OF FACT The veteran has formally withdrawn his appeal in regard to the only issue on appeal prior to a final decision by the Board. CONCLUSION OF LAW Because of the withdrawal of the veteran's appeal, the Board has no jurisdiction to adjudicate the merits of the claims. 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2007); 38 C.F.R. § 20.204 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As discussed hereinbelow, the veteran expressed his intention to withdraw his current appeal in writing. The Board finds this statement to be clear and unambiguous. The withdrawal of a claimant's appeal is deemed a withdrawal of the Notice of Disagreement and Substantive Appeal as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). The February 2003 rating decision on appeal was a single- issue decision denying an evaluation in excess of 10 percent for the service-connected disability of the right hand. The veteran's March 2003 Notice of Disagreement (NOD) stated, "[he] believe[d] this decision of yours [was] wrong!" The NOD did not specify which RO decision was intended, but there were no recent RO decisions other than that of February 2003 to which the NOD could have been referring. The SOC, issued in March 2004, addressed the single issue identified on the title page; i.e., evaluation of residuals of a crush injury to the right index, middle, ring, and little fingers, with fragmentation of the tip of the fifth distal phalanx of the right little finger, with tender scar. The veteran's Substantive Appeal appealed "all of the issues listed on the SOC" (which, as noted above, was a single issue) and specified that the veteran was appealing injuries to his right hand and fingers. The veteran testified before the Board in January 2006. The single issue on appeal was identified as evaluation of residuals of a crush injury to the right index, middle, ring, and little fingers, with fragmentation of the tip of the fifth distal phalanx of the right little finger, with tender scar, currently rated as 10 percent disabling. In February 2006, the Board remanded the issue of evaluation of the service-connected residuals of a crush injury to the right index, middle, ring, and little fingers, with fragmentation of the tip of the fifth distal phalanx of the right little finger, with tender scar to the RO for further development. In March 2006, the veteran had a VA examination for the purpose of evaluating the service-connected disability. In September 2006, the RO issued a rating decision granting separate service connection for limitation of the right middle finger, right index finger, and tender scar, each rated as 10 percent disabling effective on October 7, 2002. The RO concurrently issued an SSOC, since the grant was not a complete satisfaction of the claim on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2006, the veteran submitted a VA Form 21-4138 (Statement in Support of Claim) stating that he was satisfied with the individual and overall rating, and was prepared to accept the decision as final and drop any further appeal if the decision was effective from October 7, 2002; if not, the veteran stated that he would want to continue the appeal as regards effective date only. On careful review of the veteran's September 2006 letter, the Board finds that he clearly and unambiguously intended to withdraw his appeal regarding the only issue on appeal. As noted, the effective date as reflected in the September 2006 rating decision and concurrent SSOC was on October 7, 2002, which fully complies with the veteran's request. Because the veteran has withdrawn his appeal, and therewith his NOD and his Substantive Appeal, the Board is without jurisdiction or authority to further adjudicate or address the veteran's claim on the merits. 38 C.F.R. §§ 20.201, 20.202. The appeal thus is dismissed without prejudice. In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any future appealed claim as to the issues withdrawn (with Notice of Disagreement and, after a Statement of the Case is issued, a new substantive appeal), provided such filings would be timely if the appeal withdrawn had never been issued. See 38 C.F.R. § 20.204(c). ORDER The appeal as to the claim for increased evaluation for the service-connected residuals of a crush injury to the right index, middle, ring, and little fingers, with fragmentation of the tip of the fifth distal phalanx of the right little finger, with tender scar is dismissed without prejudice. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs