Citation Nr: 1109235	
Decision Date: 03/09/11    Archive Date: 03/17/11

DOCKET NO.  07-23 760	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Montgomery, Alabama


THE ISSUE

Entitlement to a rating in excess of 10 percent for a right knee disability.


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

Matthew Blackwelder, Counsel






INTRODUCTION

The Veteran had active military service from May 1979 to September 1979 and from November 1980 to July 1990.

This appeal comes to the Board of Veterans' Appeals (Board) from a March 2007 rating decision. 


FINDING OF FACT

In a statement received in August 2008, the Veteran clearly and unequivocally indicated that he wished to withdraw his appeal of the issue of a rating in excess of 10 percent for a right knee disability.


CONCLUSION OF LAW

Criteria for withdrawal of a Substantive Appeal by the Veteran of his claim for a rating in excess of 10 percent for a right knee disability 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

In a statement received in August 2008, the Veteran indicated that he wished to withdraw his appeal of the issue of a rating in excess of 10 percent for a right knee disability.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the Veteran or by his authorized representative.  38 C.F.R. § 20.204.  The Veteran has withdrawn his appeal with regard to the above listed issue and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to that issue.  

In reaching this conclusion, the Board notes that the Veteran's representative submitted a written brief presentation in February 2011 arguing that a rating in excess of 10 percent was warranted for the Veteran's right knee disability.  However, the representative did not comment on the fact that the Veteran had clearly withdrawn his appeal more than two years earlier, and did not allege in any way that the Veteran had not really intended to withdraw his claim.  Furthermore, while the representative stated that the Veteran's claims file had been carefully reviewed, beyond the listing of the dates of the Veteran's service and the medals he received, there is no discussion of any actual medical evidence or any specific argument as to why an increase would be warranted in this particular case.  As such, it does not appear that the representative was aware that the Veteran had withdrawn his claim.

The Board has examined the form the Veteran signed which withdrew his claim.  While it is a preprinted form, an "X" was clearly placed next to the line indicating, "I wish to cancel my appeal for the following issues..." and then handwritten beneath that line were the words, "Rt. Knee Inc."  Since that form was completed in August 2008, the Veteran has submitted neither evidence nor argument about his claim, further supporting the conclusion that he did indeed wish to withdraw his appeal.  As such, there is no doubt that the Veteran intended to withdraw his claim.

Given this conclusion, the Board does not have jurisdiction to review the Veteran's claim of entitlement to service connection for a right knee disability and it is therefore dismissed.

ORDER

The claim for a rating in excess of 10 percent for a right knee disability is dismissed.

____________________________________________
MICHAEL E. KILCOYNE 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs