Citation Nr: 1803735	
Decision Date: 01/19/18    Archive Date: 01/29/18

DOCKET NO.  12-15 721	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for migraines as secondary to head injury.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL


 The Veteran and his friend


ATTORNEY FOR THE BOARD

Brad Farrell, Associate Counsel

INTRODUCTION

The Veteran served on active duty from June 1975 to June 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated July 2011 from the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  In June 2012, the Veteran perfected a timely substantive appeal. 

In June 2015, the Veteran and friend testified at a Board travel board hearing before a Veterans Law Judge (VLJ).  A transcript of that hearing has been associated with the file. 

In August 2016, the Board sent the Veteran a letter informing him that the VLJ who conducted June 2015 hearing was no longer employed by the Board, and provided him with options for proceeding, including that if there was no response within 30 days of the letter, the Board would assume he did not want another hearing and would proceed accordingly.  The Veteran did not respond.  Accordingly, the Board will proceed with the adjudication of the Veteran's claim. 

The appeal was previously remanded in October 2015 for development.  That completed, the issues were properly returned to the Board.  Also remanded at that time was the Veteran's claim of entitlement to service connection for right ear hearing loss.  In a June 2016 rating decision, service connection for right ear hearing loss was granted; this represents a full grant of the benefits sought, and the issue is no longer in appellate status.  See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997).  The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status.  See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned).

In January 2017, the Board remanded the remaining appealed issues of entitlement to service connection for a traumatic brain injury (TBI) and migraine headaches. 

In a May 2017 rating decision, the RO granted service connection for residuals of a TBI; such award represents a compete grant of the benefits sought on appeal with respect to a TBI.  See Grantham, supra.


FINDING OF FACT

In July 2017, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran, through his representative, requesting that the appeal of the above-referenced issue be withdrawn.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met.  38 U.S.C. §§ 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).





REASONS AND BASES FOR FINDING 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. § 7105.  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.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In the present case, the Veteran indicated in a statement dated June 2, 2017, set forth on VA Form 2121-4138, that he wishes to withdraw his appeal regarding the issue of entitlement to service connection for migraines as secondary to head injury.  In that written statement, the Veteran clearly specified that his request to withdraw pertains only to the above-referenced issue, and that all other issues the Veteran has submitted to the Board are to remain on appeal.  The request to withdraw the appeal was confirmed by the Veteran's representative in a letter dated December 2017.  Therefore, 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 seeking service connection for migraines as secondary to head injury is dismissed.



____________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs