Citation Nr: 1310402 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 10-10 749 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a right epididymal cyst. 3. Entitlement to an increased disability evaluation for a right eye corneal scar. 4. Entitlement to an increased disability evaluation for the residuals of nasal sinusitis with allergic rhinitis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from May 1995 to April 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. Jurisdiction of the Veteran's claims file has since been transferred to the RO in Houston, Texas. The Veteran was previously scheduled for a hearing before a Veterans Law Judge with the Board in March 2013. However, in March 2013, VA received notification from the Veteran that he no longer desired to continue with his appeal. FINDINGS OF FACT 1. VA received written notification from the Veteran in a March 2013 statement that he wanted to withdraw his claim of entitlement to service connection for a low back disorder. The Board received this request prior to the promulgation of a decision. 2. VA received notification from the Veteran in December 2010 that he did not wish to pursue his claim of entitlement to service connection for a right epididymal cyst. The intent to withdraw this claim was confirmed by the Veteran's representative in July 2011. The Board received this request prior to the promulgation of a decision. 3. VA received notification from the Veteran in December 2010 that he did not wish to pursue his claim of entitlement to an increased disability evaluation for a cornea scar of the right eye. The intent to withdraw this claim was confirmed by the Veteran's representative in July 2011. The Board received this request prior to the promulgation of a decision. 4. VA received written notification from the Veteran in a July 2011 statement that his appeal seeking a higher disability evaluation for sinusitis and allergic rhinitis was now satisfied. The Board received this notification prior to the promulgation of a decision. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to service connection for a low back disorder have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to service connection for a right epididymal cyst have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 3. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to an increased disability evaluation for a cornea scar of the right eye have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 4. The criteria for withdrawal by the Veteran of a Substantive Appeal concerning the issue of entitlement to an increased disability evaluation for the residuals of sinusitis with allergic rhinitis have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS By a rating decision dated December 2008, the RO, in relevant part, denied the Veteran's claims of entitlement to service connection for a low back disorder and a right epididymal cyst. Service connection for a corneal scar of the right eye was granted and a noncompensable (0 percent) disability evaluation was assigned, effective as of June 4, 2008. Service connection was also established for the residuals of nasal sinusitis. Again, a noncompensable disability evaluation was assigned, effective as of June 4, 2008. In March 2009, VA received a timely notice of disagreement from the Veteran alleging that service connection was warranted for a low back disorder and a right epididymal cyst. He also asserted that he was entitled to compensable disability evaluations for his scarring of the right eye and the residuals of his nasal sinusitis. The holding of the December 2008 rating decision was confirmed in a December 2009 statement of the case and the Veteran appealed this to the Board in February 2010. In December 2010, VA received another Form 9 from the Veteran, expressing his intent to only pursue the issues of (1) entitlement to service connection for a low back condition and (2) entitlement to a higher disability evaluation for the residuals of nasal sinusitis. In a July 2011 Decision Review Officer (DRO) Informal Conference, the Veteran's representative confirmed that the only issues remaining on appeal were entitlement to service connection for a low back disorder and entitlement to an increased evaluation for sinusitis with allergic rhinitis. In July 2011, a DRO decision found clear and unmistakable error (CUE) in the previous rating decision, and assigned a 30 percent disability evaluation for allergic rhinitis, effective as of June 4, 2008. A separate disability evaluation of 10 percent was also assigned for sinusitis, effective as of June 4, 2008. In a statement received from the Veteran in July 2011, he indicated that the assigned disability ratings satisfied his appeal. Therefore, as of July 2011, the only remaining issue on appeal was entitlement to service connection for a low back disorder. However, on March 5, 2013, the Veteran notified VA that he did not wish to continue his appeal and that he was withdrawing his appeal. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(a) (2012). Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c) (2012). As noted above, the Veteran withdrew his appeals of entitlement to service connection for a right epididymal cyst and entitlement to an increased disability evaluation for right eye cornea scarring in December 2010. His representative confirmed that these issues were no longer on appeal in a July 2011 DRO Informal Conference. Hence, there remain no allegations of error of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of these issues, and the appeal of these issues is dismissed. The Veteran also indicated in July 2011 that his appeal was satisfied with the disability rating assigned to his sinusitis and allergic rhinitis. Hence, there remain no allegations of error of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. Finally, in March 2013, the Veteran indicated that he wished to withdraw his appeal. The only issue remaining on appeal at this time was entitlement to service connection for a low back disorder. Hence, there remain no allegations of error of fact or law for appellate consideration as to this issue. Accordingly, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed. (CONTINUED ON NEXT PAGE) ORDER The claim of entitlement to service connection for a low back disorder is dismissed. The claim of entitlement to service connection for a right epididymal cyst is dismissed. The claim of entitlement to an increased disability evaluation for a right eye corneal scar is dismissed. The claim of entitlement to an increased disability evaluation for the residuals of nasal sinusitis with allergic rhinitis is dismissed. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs