Citation Nr: 1310210 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 06-20 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1980 to September 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Initially, there were three claims on appeal for entitlement to service connection for an acquired psychiatric disorder, a cervical spine disability, and a left shoulder disability. In June 2006, the Veteran requested a hearing before a member of the Board at his local RO. He was notified that he had been scheduled for a hearing in May 2007; however, he failed to appear. On July 15, 2009, a hearing clarification letter was sent to the Veteran; however, he failed to provide a response to this letter. The Veteran has not filed a motion for a new hearing date following his failure to appear at the May 2007 hearing. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d). In September 2009 and May 2011, the Board remanded these claims for additional development and consideration. In an October 2012 rating decision, the RO granted the Veteran's claim of entitlement to service connection for schizoaffective disorder, bipolar type, with an initial disability rating of 50 percent from January 31, 2005 to September 20, 2012, and a 100 percent rating since. The Veteran did not complete the steps necessary to perfect an appeal to the Board concerning the initial ratings and/or effective dates assigned for this disability. Therefore, this claim is not presently before the Board. FINDINGS OF FACT 1. On a November 2012 statement submitted prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for a left shoulder disability. 2. On a November 2012 statement submitted prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for a cervical spine disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement service connection for a left shoulder disability are 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 the appeal of the issue of entitlement service connection for a cervical spine disability are 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 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. 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. On November 30, 2012, an Appeals Satisfaction Notice was received from the Veteran indicating that he wished to withdraw from appellate consideration his remaining claims of entitlement to service connection for a left shoulder disability and a cervical spine disability. The Appeals Management Center (AMC) sent this Notice to the Veteran following an October 2012 rating decision, which granted service connection for entitlement to service connection for schizoaffective disorder, bipolar type, with an initial disability rating of 50 percent from January 31, 2005 to September 20, 2012, and a 100 percent rating since. This Notice clearly indicates that by returning this document, the Veteran is no longer pursing the remaining claims that were remanded to the AMC in the Board's May 2011 remand, which includes the claims pertaining to the left shoulder and cervical spine. Additionally, while his representative submitted a January 2013 Post-Remand Brief directing the Board's attention to arguments previously made in support of his claims, this January 2013 Brief makes no clear assertions contrary to the clearly expressed wishes of the Veteran to withdraw these appeals. Hence, the Board finds that the Veteran's clearly expressed wishes control this situation, not those implied by his representative. The Board finds that the Veteran's written statement indicating his intention to withdraw his claims on appeal satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). As the Veteran has withdrawn his appeals concerning entitlement to service connection a left shoulder and a cervical spine disability, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review these claims on appeal and they are dismissed. ORDER The appeal as to the claim of entitlement to service connection for a left shoulder disability is dismissed. The appeal as to the claim of entitlement to service connection for a cervical spine disability is dismissed. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs