Citation Nr: 1308971	
Decision Date: 03/18/13    Archive Date: 03/25/13

DOCKET NO.  09-20 998	)	DATE
	)
	)

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


THE ISSUE

Whether new and material evidence has been received to reopen a claim of entitlement to service connection for post-operative cervical rib, left, with scars.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and C.H.


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from January 1967 to January 1969.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the New Orleans, Louisiana Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied the Veteran's petition to reopen a previously denied claim of entitlement to service connection for post-operative cervical rib, left, with scars.  In October 2012, a Board videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the Veteran's claims file.

The Board additionally notes that during the pendency of this appeal, the Veteran separately initiated another appeal (though the filing of a timely notice of disagreement (NOD)) seeking to establish permanency for a 100 percent rating assigned for adenocarcinoma of the prostate.  In a March 2012 rating decision, the RO issued a complete grant of the benefit sought by the Veteran with regard to that issue.  That issue is therefore not in appellate status and is not before the Board at this time.


FINDING OF FACT

On October 23, 2012, prior to the promulgation of a decision in the appeal, the Board received signed written notification from the Veteran (with a confirmatory cover letter from his representative) stating that he intended to withdraw his appeal seeking to reopen a claim of entitlement to service connection for post-operative cervical rib, left, with scars; there is no question of fact or law remaining before the Board in this matter.



CONCLUSION OF LAW

Regarding the petition to reopen a claim of entitlement to service connection for post-operative cervical rib, left, with scars, the criteria for withdrawal of an appeal by the appellant are met; the Board has no further jurisdiction in this matter.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

A. Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  However, given the Veteran's expression of intent to withdraw his appeal in the matter of the petition to reopen a claim of entitlement to service connection for post-operative cervical rib, left, with scars, further discussion of the impact of the VCAA on this matter is not necessary.

B. Legal Criteria, Factual Background, and Analysis

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  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.  An 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 authorized representative.  38 C.F.R. § 20.204.

In a statement received on October 23, 2012, the Veteran (with a confirmatory cover letter from his representative) indicated that he wished to withdraw his appeal seeking to reopen a claim of entitlement to service connection for post-operative cervical rib, left, with scars.  Hence, there is no allegation of error of fact or law for appellate consideration on this claim.  Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed.


ORDER

The appeal seeking to reopen a claim of entitlement to service connection for post-operative cervical rib, left, with scars, is dismissed.



____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs