Citation Nr: 1302250	
Decision Date: 01/22/13    Archive Date: 01/31/13

DOCKET NO.  09-33 060	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with limitation of motion.

2.  Entitlement to an initial evaluation in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with instability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Kedem, Counsel


INTRODUCTION

The Veteran served on active duty from May 1975 to May 1978.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision by which the RO, in pertinent part, granted service connection for the disabilities enumerated above.  The Veteran appealed the initial disability ratings assigned.  

In connection with this appeal, it is noted that the Veteran requested and was scheduled for a personal hearing via video teleconference before a Veterans Law Judge in October 2010.  Although he was notified of the time and date of the hearing by mail sent to his last known address, he failed to appear for that hearing and neither furnished an explanation for his failure to report nor requested a postponement or another hearing.  When an appellant fails to report for a scheduled hearing and has not requested a postponement, the case will be processed as though the request for a hearing was withdrawn.  38 C.F.R. § 20.704(d) (2012).


FINDINGS OF FACT

1.  In October 2010, prior to the promulgation of a decision in the appeal of the issue of entitlement to entitlement to an initial rating in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with limitation of motion, the Veteran requested that the appeal be withdrawn. 

2.  In October 2010, prior to the promulgation of a decision in the appeal of the issue of entitlement to an initial evaluation in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with instability, the Veteran requested that the appeal be withdrawn.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the Veteran of the issue of entitlement to an initial rating in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with limitation of motion have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The criteria for withdrawal of an appeal by the Veteran of the issue of entitlement to an initial evaluation in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with instability 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 FINDINGS AND CONCLUSIONS

The Board may dismiss any appeal that 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.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

In October 2010, the Veteran withdrew the appeal regarding the issues of entitlement to an initial rating in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with limitation of motion and entitlement to an initial evaluation in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with instability.  Hence, there remain no allegations of errors of fact or law for appellate consideration regarding those issues.  Accordingly, the Board does not have jurisdiction to review the appeal regarding the issues of entitlement to an initial rating in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with limitation of motion and entitlement to an initial evaluation in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with instability, and they are dismissed.


ORDER

The appeal regarding the issue of entitlement to an initial rating in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with limitation of motion is dismissed.

The appeal regarding the issue of entitlement to an initial evaluation in excess of 10 percent for service-connected bony exostosis of the right proximal tibia, status-post right knee injury, with instability is dismissed.



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs