Citation Nr: 1332641	
Decision Date: 10/21/13    Archive Date: 10/24/13

DOCKET NO.  08-15 619	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an initial increased rating for asbestosis.


REPRESENTATION

Appellant represented by:	Massachusetts Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R.N. Poulson, Counsel




INTRODUCTION

The Veteran served on active duty from November 1959 to December 1963.  This matter comes before the Board of Veterans' Appeals (Board) from a December 2006 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted service connection for asbestosis and assigned a noncompensable evaluation, effective November 5, 2005.  

In September 2010, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the claims file.  In December 2010, the Board remanded the case so that a VA examination could be scheduled.  The requested development was completed.   In April 2011, the Appeals Management Center (AMC) increased the evaluation for asbestosis to 30 percent, effective December 3, 2010. 

The VLJ who conducted the September 2010 hearing has retired from the Board.  In August 2013, the Board sent the Veteran a letter offering him another hearing before a different VLJ.  See 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707  (2013) (the Board member who conducts the hearing will participate in making the final determination of the claim).  The Veteran responded in the same month that he did not want to have another hearing.


FINDING OF FACT

In a correspondence dated in August 2013, the Veteran expressed his desire to withdraw from appellate review his appeal of the claim for an initial increased rating for asbestosis.



CONCLUSION OF LAW

The criteria for the withdrawal of a substantive appeal with respect to the issue of entitlement to an initial increased rating for asbestosis are met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision.  38 C.F.R. § 20.204 (2013).  When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists.  In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate.  38 U.S.C.A. § 7105(d)  (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2013). 

In a correspondence received at the Board in August 2013, the Veteran expressed his desire to withdraw from appellate review the issue of entitlement to an initial increased rating for asbestosis.  In view of the Veteran's expressed desire, the Board concludes that further action with regard to this issue is not appropriate.  38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.204 (2013).  The Board does not have jurisdiction over this withdrawn claim and, as such, must dismiss the appeal.  38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2013).


ORDER

The appeal of the issue of entitlement to an initial increased rating for asbestosis is dismissed.


____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs