Citation Nr: 1636659	
Decision Date: 09/19/16    Archive Date: 09/27/16

DOCKET NO.  08-26 145A	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to an initial rating in excess of 60 percent for adenocarcinoma of the prostate, status-post radical perineal prostatectomy with urinary incontinence.

2.  Entitlement to a compensable initial rating for erectile dysfunction.

3.  Entitlement to an initial rating in excess of 60 percent for rectal incontinence.


ATTORNEY FOR THE BOARD

T. J. Anthony, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1961 to August 1968.

These matters are before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, and a July 2010 rating decision by the VA RO in Decatur, Georgia.  This case is currently under jurisdiction of the St. Petersburg, Florida RO.

In his substantive appeal, the Veteran requested a Board hearing at a local VA office.  See VA Form 9, Appeal to Board of Veterans' Appeals, received in September 2008.  However, in September 2011, the Veteran indicated that he wished to withdraw his hearing request.  Under 38 C.F.R. § 20.704(e), a request for hearing may be withdrawn by an appellant at any time before the hearing.  Therefore, the Board finds that the hearing request has been withdrawn, and will proceed with appellate review.

In December 2012, the Board denied entitlement to an initial rating in excess of 60 percent for rectal incontinence and increased the Veteran's rating for adenocarcinoma residuals to 60 percent for the entire time period on appeal.  The Board also remanded the issues of entitlement to an initial rating in excess of 60 percent for residuals of adenocarcinoma, status post radical perineal prostatectomy, with urinary incontinence; entitlement to a compensable initial rating for erectile dysfunction; and entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities.

In July 2013, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand and issued an order vacating and remanding the portion of the Board's December 2012 decision that denied entitlement to an initial rating in excess of 60 percent for rectal incontinence.

In April 2014, the Board granted entitlement to a TDIU and remanded the other issues on appeal for further development.

In the April 2014 decision and remand, the Board referred to the Agency of Original Jurisdiction (AOJ) the issues of entitlement to service connection for hemorrhoids and entitlement to service connection for a sleep disability pursuant to 38 C.F.R. § 19.9(b).  The Board also referred to the AOJ the matter of effectuating the Board's December 2012 grant of an increased rating for adenocarcinoma residuals.  The record reflects that the AOJ has since addressed these matters by issuing a May 2014 rating decision effectuating the increased rating for adenocarcinoma residuals and contacting the Veteran in September 2014 as to the possible hemorrhoids and sleep disability claims.  In November 2014, the Veteran indicated that he did not intend to file a claim for service connection for hemorrhoids or for service connection for a sleep disorder.


FINDING OF FACT

On March 17, 2016, prior to recertification of the appeal to the Board, the RO received notification from the Veteran that a withdrawal of this appeal is requested.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2015).  In the present case, the Veteran submitted a statement in March 2016 in which he states, "Since I am already Permanent and Total, also TDIU please cancel this particular Remand Appeal."  Accordingly, the Veteran withdrew the appeal in March 2016.  Nevertheless, the appeal was thereafter readjudicated by the RO in an April 2016 supplemental statement of the case, recertified to the Board for appellate consideration, and returned to the Board's docket.  See letter to the Veteran dated May 9, 2016; letter to the Veteran dated August 8, 2016.  However, as a consequence of the prior withdrawal of the appeal, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.


ORDER

The appeal is dismissed.




		
MICHAEL MARTIN
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs