Citation Nr: 1301121	
Decision Date: 01/11/13    Archive Date: 01/16/13

DOCKET NO.  09-34 732	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUE

Entitlement to service connection for a skin rash as due to exposure to herbicides.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L.M. Yasui, Counsel


INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from April 1968 to April 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  While the Veteran filed his claims with the RO in New Orleans, Louisiana, his file was temporarily transferred to the St. Louis RO at that time due to closure of the New Orleans RO as a result of Hurricane Katrina.  The RO in New Orleans, Louisiana, currently has jurisdiction over this case.

In an August 2006 notice of disagreement, the Veteran specifically expressed disagreement with the RO's November 2005 denial of service connection for posttraumatic stress disorder (PTSD).  In July 2009, the RO fully granted service connection for PTSD; therefore, that issue is not in appellate status, and is not before the Board.


FINDING OF FACT

Prior to the promulgation of a decision by the Board, the Veteran notified the Board, in writing, of his intent to withdraw his appeal of the issue of entitlement to service connection for a skin rash as due to exposure to herbicides.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to service connection for a skin rash as due to exposure to herbicides have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Withdrawal of Service Connection for a Skin Rash

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.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or by his or her authorized representative and must be in writing, except for appeals withdrawn on the record at a hearing.  38 C.F.R. § 20.204.

In this case, in April 2012 and before a final decision was promulgated by the Board, the Veteran notified the Board, in writing, that he wished to withdraw "ALL issues currently on appeal," which includes the issue of entitlement to service connection for a skin disorder as due to exposure to herbicides; hence, there remain no allegations of errors of fact or law for appellate consideration on this issue.  The appeal was effectively withdrawn in April 2012.  Withdrawal of the appeal included withdrawal of both the notice of disagreement and the substantive appeal in this case.  See 38 C.F.R. § 20.204(c). 

The Board notes that in December 2012, apparently under the mistaken assumption that this issue was still on appeal, the Veteran's representative submitted a written brief in support of the claim that purported to address the merits of the claim; however, because the appeal had already been withdrawn by the Veteran in April 2012, the submission by the representative in December 2012 is of no legal effect and does not need to be addressed.  The regulation governing withdrawal of appeals, 38 C.F.R. § 20.204(c), provides that withdrawal of an issue does not preclude the filing of a new notice of disagreement; however, for a subsequent writing to be a timely notice of disagreement following a withdrawal, the new submission must be received in a timely manner as if the appeal withdrawn had never been filed.  Because the rating decision in this case was issued in November 2005, the submission of the brief in December 2012, following withdrawal of the issue in April 2012, was not received within one year of issuance of the rating 

decision on appeal, so is not timely to serve as a notice of disagreement to revive the withdrawn issue.  See 38 C.F.R. § 20.204(c).  Accordingly, the Board does not have jurisdiction to review the appeal as to service connection for a skin rash as due to exposure to herbicides, and this issue is dismissed.  


ORDER

The appeal of service connection for a skin rash as due to exposure to herbicides is dismissed.



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs