Citation Nr: 1127409	
Decision Date: 07/22/11    Archive Date: 07/29/11

DOCKET NO.  09-44 959	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for tonsil cancer, to include claimed as a result of herbicide exposure.  


REPRESENTATION

Appellant represented by:	Missouri Veterans Commission


ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel



INTRODUCTION

The Veteran had active service from February 1968 to September 1970, with verified service in Vietnam from July to September 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in St. Louis, Missouri, which denied a service connection claim for tonsil cancer.

As will be explained herein, the Veteran has elected to withdraw the service connection claim for tonsil cancer from appellate consideration by the Board.  However, referral of the claim to the VA RO in St. Louis, Missouri for consideration under the Nehmer case has been requested.

A service connection claim for tonsil cancer (for consideration under the Nehmer case) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

In June 2011, prior to the promulgation of a Board decision, the Veteran withdrew his appeal pertaining to the service connection claim for tonsil cancer.


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal regarding the service connection claim for tonsil cancer have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In a rating action issued in January 2009, the RO denied a service connection claim for tonsil cancer.  A timely Notice of Disagreement with the denial of the claim was filed in March 2009, and a Statement of the Case was issued in September 2009.  A timely substantive appeal was filed in November 2009, giving the claim appellate status.  

The file includes a VA Form 21-4138 (Statement in Support of Claim), dated and received in June 2011, and signed by the Veteran's representative, reflecting that the Veteran had elected to withdraw the service connection claim for tonsil cancer from appellate consideration.  Therefore, no allegations of errors of fact or law remain for appellate consideration with respect to this claim.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to the aforementioned claim and it is dismissed.


ORDER

The appeal concerning the service connection claim for tonsil cancer is dismissed.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs