Citation Nr: 1753535	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  12-35 205	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to service connection for colon cancer, to include as due to Agent Orange exposure, and to include as secondary to diabetes mellitus.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. B. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty in the Air Force from June 1965 to April 1969, as well as in the National Guard from January 1965 to May 1965.

This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied service connection for colon cancer and established service connection for hearing loss and tinnitus.  

In December 2015, the Board denied the claim for entitlement to extraschedular consideration for tinnitus, and remanded the claims for an increased rating for hearing loss and service connection for colon cancer for further development.  

The Veteran appealed the decision regarding tinnitus to the United States Court of Appeals for Veterans Claims (CAVC or Court).  In a November 2016 Order, the Court granted a joint motion for partial remand (JMPR) of the issue based on insufficient analysis of whether the claim should be remanded for extraschedular consideration under Johnson v. McDonald, 762 F. 3d 1362 (2014); and, the case was returned to the Board.  

Meanwhile, while the appeal was pending, the RO increased the Veteran's rating for his hearing loss disability in an October 2013 rating decision, and again in an April 2016 rating decision.  

In an April 2017 decision, the Board denied higher disability ratings for the service-connected hearing loss prior to August 26, 2015, granted an increased rating to 30 percent for hearing loss for the period from August 27, 2015 through February 22, 2016; and denied a rating in excess of 30 percent from February 23, 2016 onward.  In addition, the Board determined that the criteria were not met for referral of the Veteran's bilateral tinnitus disability for consideration by the Director, Compensation and Pension Service of an extraschedular disability rating.  The Board remanded the issue of service connection for colon cancer for additional development of the record.  

In June 2017, following completion of the requested development, the RO issued a Supplemental Statement of the Case (SSOC) continuing the denial of the claim of service connection for colon cancer.  The case was subsequently returned to the Board.  


FINDING OF FACT

In October 2017, prior to the promulgation of a decision in the appeal, the Veteran requested, in writing, to withdraw his appeal as to the issue of entitlement to service connection for colon cancer.


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the Veteran, with regard to the issue of entitlement to service connection for colon cancer have been met.  38 U.S.C § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C. § 7105 (2012), 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, and an appeal may be withdrawn as to any or all issues involved in the appeal.  38 C.F.R. § 20.202 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative, and must be in writing unless the appeal is withdrawn on the record at a hearing.  38 C.F.R. § 20.204 (2017).  

After the case was certified to the Board on appeal, but before a decision was promulgated, the Board received written notice from the Veteran in October 2017 requesting to withdraw his appeal.  The only issue in appellate status and before the Board at that time was entitlement to service connection for colon cancer.  

In light of the foregoing, the appellant has withdrawn this appeal and, hence, 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 A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs