Citation Nr: 1326376 Decision Date: 08/19/13 Archive Date: 08/26/13 DOCKET NO. 08-16 590 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an earlier effective date prior to July 6, 2001 for the grant of service connection for polycythemia vera. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1981 to November 1988. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a March 2006 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for polycythemia vera and assigned a 40 percent disability rating, effective July 6, 2001, and assigned a 10 percent disability rating, effective October 1, 2001. The Veteran submitted a March 2006 Notice of Disagreement (NOD), requesting that his 10 percent disability rating for polycythemia vera be changed to a 40 percent disability rating. Subsequently, in an April 2006 rating decision, the RO increased the Veteran's disability rating for polycythemia vera to 40 percent, effective July 6, 2001. In February 2007, the Veteran submitted a statement disagreeing with the effective date assigned for the 40 percent rating for his service-connected polycythemia vera, and claimed an earlier effective date of February 1997 for this condition. In a May 2007 rating decision, the RO denied entitlement to an earlier effective date for service-connected polycythemia vera. This matter was previously before the Board in June 2010, at which time it was remanded in order for the RO to issue the Veteran a statement of the case for polycythemia vera. See Manlincon v. West, 12 Vet. App. 238 (1999). A statement of the case was provided to the Veteran in July 2010, and he perfected his appeal in September 2010. On the September 2010 Substantive Appeal, the Veteran requested to be scheduled for a Travel Board hearing. The Veteran was afforded a hearing in February 2011 before an Acting Veterans Law Judge who is no longer employed by the Board. In a February 2013 letter, the Veteran was informed that the VLJ who conducted the February 2011 Travel Board hearing was no longer employed by the Board, and was asked whether he wished to exercise his right to testify at a new hearing before another VLJ. See 38 U.S.C.A. § 7107(c); 38 C.F.R. § 20.707. In a response received by the Board in March 2013, the Veteran indicated that he wished to testify at another hearing at the RO before a VLJ. In April 2013, the Board remanded the issue on appeal to be schedule for a hearing. The Veteran was afforded a Video Conference hearing before the undersigned in June 2013. A written transcript of this hearing was prepared and incorporated into the evidence of record. The above development has now been completed and the claim is ready for review. FINDING OF FACT During the June 2013 Video Conference Hearing, the Veteran indicated his desire to withdraw his appeal seeking an earlier effective date prior to July 6, 2001 for the grant of service connection for polycythemia vera. The Board received such request prior to the promulgation of a decision. CONCLUSION OF LAW The criteria for withdrawal by the Veteran of a Substantive Appeal pertinent to the issue of an earlier effective date prior to July 6, 2001 for the grant of service connection for polycythemia vera, have been met. 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 Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A Substantive 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 or her authorized representative. 38 C.F.R. § 20.204. In June 2013, the Veteran testified during a Video Conference Hearing before the undersigned; a transcript of that hearing is of record. The Veteran stated that he wished to withdraw the issue of entitlement to an earlier effective date prior to July 6, 2001 for the grant of service connection for polycythemia vera. Because this statement was later reduced to writing and incorporated into the record in the form of a written transcript, the transcript of that hearing has been accepted as the Veteran's withdrawal of the Substantive Appeal as to that issue. See Tomlin v. Brown, 5 Vet. App. 355 (1993). The appellant has withdrawn the appeal of the issue of entitlement to an earlier effective date prior to July 6, 2001 for the grant of service connection for polycythemia vera, and, hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. As such, the Board does not have jurisdiction to review the appeal of the issue of entitlement to an earlier effective date prior to July 6, 2001 for the grant of service connection for polycythemia vera, and it is dismissed. ORDER Entitlement to an earlier effective date prior to July 6, 2001 for the grant of service connection for polycythemia vera is dismissed. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs