Citation Nr: 1234913	
Decision Date: 10/09/12    Archive Date: 10/17/12

DOCKET NO.  07-20 238	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for residuals of a left knee injury.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. Fagan, Associate Counsel


INTRODUCTION

The Veteran had active service from November 2001 to December 2004. 

The appeal comes before the Board of Veterans' Appeals (Board) from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which denied entitlement to a disability rating in excess of 10 percent for a left knee injury. 

In July 2009, the Veteran participated in a hearing before the Board in Washington, D.C.  Thereafter, in a September 2009 decision, the Board denied the Veteran's increased rating claim.  The Veteran appealed the Board's September 2009 decision to the United States Court of Appeals for Veterans Claims.  Pursuant to a November 2011 Memorandum Decision, the Court vacated the Board's denial of the Veteran's claim and remanded it for readjudication. 

In March 2012 correspondence, the Veteran was notified that the Veterans Law Judge who conducted his July 2009 hearing was no longer employed by the Board.  The law requires that a Veterans Law Judge that conducts a hearing on appeal must participate in any decision made on appeal.  38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2011).  If that person is no longer available, the Chairman of the Board has the authority to reassign the appeal to another Veterans Law Judge for a decision.  38 C.F.R. § 19.3 (2011).  Therefore, in March 2012 correspondence, the Veteran was asked whether he wanted another hearing before a different Veterans Law Judge.  38 C.F.R. § 20.717 (2011).  In April 2012 and July 2012, the Veteran responded that he wanted a videoconference hearing before another Veterans Law Judge of the Board.  That hearing was scheduled for September 2012.  However, in a written statement received the day of the Veteran's scheduled hearing, the Veteran withdrew his hearing request.  38 C.F.R. § 20.704 (2011).  Therefore, the Board will proceed with adjudication of this appeal.




FINDING OF FACT

In a Statement In Support Of Claim (VA Form 21-4138) received by the Board in September 2012, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal as to all issues currently on appeal.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran as to the issue of entitlement to a disability rating in excess of 10 percent for residuals of a left knee injury have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204  (2011). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105  (West 2002).  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 (2011).  Withdrawal may be made by the Veteran or by his or her authorized representative.  38 C.F.R. § 20.204 (2011). 

In the present case, in a VA Form 21-4138 received by the Board in September 2012, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal as to all issues currently before the Board, which currently includes only the issue of entitlement to a disability rating in excess of 10 percent for residuals of a left knee injury.  As the Veteran has withdrawn his appeal as to that issue, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.



ORDER

The appeal as to the issue of entitlement to service connection for sleep apnea is dismissed.



____________________________________________
S. S. Toth
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs