Citation Nr: 1509344	
Decision Date: 03/04/15    Archive Date: 03/17/15

DOCKET NO.  10-32 431	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for arthritis of the right thumb.  

2.  Entitlement to an initial rating in excess of 10 percent for arthritis of the left thumb.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

E. Joyner, Counsel



INTRODUCTION

The Veteran served on active duty from December 1958 to May 1960.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, granted service connection for arthritis of the thumbs, and assigned a 10 percent rating for each thumb, effective October 15, 2007.  The Veteran appealed the initial 10 percent ratings assigned for each thumb.  


FINDINGS OF FACT

1.  In a March 2010 rating decision, the RO granted service connection for arthritis of the thumbs, and assigned a 10 percent rating for each thumb, effective October 15, 2007.

2.  The Veteran perfected an appeal with respect to the initial ratings assigned for arthritis of the thumbs; in his July 2010 VA Form 9, the Veteran requested a Board hearing.  

3.  A July 2012 letter was sent to the Veteran's address of record notifying him that his Travel Board hearing was scheduled for August 29, 2012.  

4.  In a VA Form 21-4138, signed by the Veteran on August 29, 2012, he indicated that he wished to withdraw all appeals with VA.

5.  The record reflects that the Veteran did not report for his Travel Board hearing on August 29, 2012.

6.  In an August 2012 statement, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant of his desire to withdraw his appeal.


7.  In January 2015 the Board was notified that the Veteran died in January 2015.  


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the appellant have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Withdrawal of Substantive Appeal

As previously noted, in a March 2010 rating decision, the RO granted service connection for arthritis of the thumbs, and assigned a 10 percent rating for each thumb, effective October 15, 2007.  The Veteran perfected an appeal with respect to the initial ratings assigned for arthritis of the thumbs, and in his July 2010 VA Form 9, the Veteran requested a Board hearing.  A July 2012 letter was sent to the Veteran's address of record notifying him that his Travel Board hearing was scheduled for August 29, 2012.  In a VA Form 21-4138, signed by the Veteran on August 29, 2012, he indicated that he wished to withdraw all appeals with VA.  The record reflects that the Veteran did not report for his Travel Board hearing on August 29, 2012.  He had no other appeals pending. 

Thereafter, the record reflects that an October 5, 2012 letter from VA was sent to the Veteran, indicating that the Board had received his claims file and his appeal had been docketed.  However, no further action was taken until the Board was notified in January 2015 that the Veteran died in January 2015.  

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 (2014).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  The appellant, in correspondence submitted on August 29, 2012, has withdrawn this appeal.  Such withdrawal is effective the date the letter was received at the Board.  38 C.F.R. § 20.204(b)(3).  Accordingly, the Board does not have jurisdiction to review the appeal.

In this case, because the Board's dismissal of this appeal is based upon the Veteran's withdrawal of his appeal in August 2012 and not based upon the Veteran's death, this decision does negatively affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing the claim to completion.  See 38 U.S.C.A. § 5121A (West 2002) (substitution in case of death of a claimant who dies on or after October 10, 2008).  


ORDER

The appeal of the issue of entitlement to an initial rating in excess of 10 percent for arthritis of the right thumb is dismissed.

The appeal of the issue of entitlement to an initial rating in excess of 10 percent for arthritis of the left thumb is dismissed.



____________________________________________
L. M. BARNARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs