Citation Nr: 1645689	
Decision Date: 12/07/16    Archive Date: 12/19/16

DOCKET NO.  11-09 087	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for a left eye disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Yuan, Associate Counsel



INTRODUCTION

The appellant is a Veteran who served on active duty from October 1977 to February 1978 and December 2003 to March 2005.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Montgomery, Alabama Department of Veteran Affairs (VA) Regional Office (RO).  At his request, the Veteran was scheduled for a November 2016 hearing before the Board, but he withdrew that request by correspondence that same month.

The Board notes the RO adjudicated these matters as on appeal from a November 2008 rating decision denying service connection for OSA and declining to reopen a claim of service connection for a left eye disability.  However, a review of the record shows the Veteran was originally denied service connection for a left eye disability in December 2005, but within a year of that decision filed another "claim" for service connection of such disability, prompting the RO to reconsider that matter in a July 2007 rating decision.  That decision confirmed the original denial of service connection for a left eye disability and denied service connection for OSA.  In May 2008, VA received correspondence from the Veteran seeking reconsideration of both those matters, but indicating that, should the VA rule against him, he wished to have the correspondence considered a notice of disagreement (NOD) and a statement of the case issued.  Notably, this is almost the exact language used in the March 2009 correspondence the RO accepted as an NOD for the November 2008 rating decision ("I would like a DRO if they do not rule in my favor consider this a NOD and mail me a statement of the case").  Thus, the Board interprets the earlier May 2008 correspondence as reasonably expressing intent to appeal the July 2007 denials of service connection for OSA and a left eye disability.


FINDINGS OF FACT

By November 2016 correspondence, prior to the promulgation of a decision in the matter, the Veteran indicated he wished to withdraw his entire appeal; there are no questions of fact or law remaining in these matters. 
CONCLUSION OF LAW

The criteria for withdrawal of an appeal in all matters by the Veteran have been met; the Board has no further jurisdiction in this matter.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.20.204 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Inasmuch as the Veteran has withdrawn the entire appeal, there is no reason to belabor the impact of The Veterans Claims Assistance Act of 2000 (VCAA) on the matter; any notice or duty to assist omission is harmless.

The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C.A. § 511(a) is subject to a decision by the Secretary.  38 U.S.C.A. § 7104.  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.  An appeal may be withdrawn by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204.  A withdrawal of an appeal is effective when received.  38 C.F.R. § 20.204(b)(3).  Here, VA has received November 2016 correspondence clearly indicating the Veteran wishes to withdraw all issues on appeal.  Thus, there is no error of fact or law remaining for appellate consideration. 


ORDER

The appeal is dismissed.



____________________________________________
VICTORIA MOSHIASHWILI
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs