Citation Nr: 1327949	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  09-20 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to service connection for hairy cell leukemia.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Hannan, Counsel



INTRODUCTION

The Veteran appellant had active duty in the United States Army from July1966 to August 1986, including combat duty in Vietnam.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina that, in part, denied the Veteran's claim of entitlement to service connection for hairy cell leukemia.

In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim.  Virtual VA does not currently contain evidence pertinent to the claim that is not already included in the paper claims file.


FINDING OF FACT

Prior to the promulgation of a decision on the appeal, the Veteran's representative withdrew the appeal as to the issue of entitlement to service connection for hairy cell leukemia in a written statement received in August 2009.


CONCLUSION OF LAW

The criteria for withdrawal by the Veteran of his Substantive Appeal on the issue of entitlement to service connection for hairy cell leukemia 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 which 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  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).

In May 2009, the Veteran filed a substantive appeal (VA Form 9) with respect to his claim of entitlement to service connection for hairy cell leukemia.  A VA Form 119 (Report of General Information), dated August 19, 2009, reflects that the Veteran's representative called to ask that the appeal as to the issue of hairy cell leukemia be stopped immediately because it was based on a misdiagnosis; the representative stated that the correct diagnosis was non-Hodgkin's lymphoma.  This telephone call was followed up with a written statement from the Veteran's representative that was received in August 2009.  The Veteran's representative wrote that the Veteran did not have hairy cell leukemia and again asked that the appeal as to that issue be cancelled immediately.  

Thereafter, in a March 2012 rating decision, the Veteran was found to be entitled to service connection for non-Hodgkin's lymphoma, effective the date of the original claim for hairy cell leukemia (May 12, 2008).  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

The evidence of record shows that the Veteran withdrew his appeal for his claim of entitlement to service connection for hairy cell leukemia.  Therefore, the appeal as to that service connection claim has been withdrawn.  See 38 C.F.R. § 20.204.

As the Veteran has withdrawn his appeal as to the service connection issue on appeal, there remain no allegations of error of fact or law for appellate consideration on the claim.  In addition, the Board lacks jurisdiction over the issue of entitlement to service connection for non-Hodgkin's lymphoma because that issue has been granted and rendered moot on appeal.  38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202.

Accordingly, the Board does not have jurisdiction to review the appeal as to the Veteran's claim of entitlement to service connection for hairy cell leukemia.  Therefore, said issue is dismissed, without prejudice.


ORDER

The appeal of the claim for service connection for hairy cell leukemia is dismissed.




____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs