Citation Nr: 18142016 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 18-44 220 DATE: October 12, 2018 ORDER Entitlement to service connection for stomach disability is dismissed. FINDING OF FACT In correspondence received in August 2018, prior to the promulgation of a decision in the appeal, the Veteran’s attorney indicated that the Veteran did not wish to seek service connection for a stomach disability. CONCLUSION OF LAW The criteria for withdrawal of an appeal have been met with respect to the issue of entitlement to service connection for a stomach disability. 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 Veteran served on active duty from July 1994 to December 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, which denied service connection for a stomach disability. As set forth in more detail below, the Veteran’s attorney has argued that the Veteran’s February 2015 claim of service connection for a stomach disability was intended to be a claim for an increased rating for the Veteran’s service-connected residuals of a post-operative umbilical hernia. On March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amendments, however, are only effective for claims filed on or after March 24, 2015. As the Veteran’s February 2015 claim was received by VA prior to that date, the amendments are not applicable in this instance. Affording the Veteran the benefit of the doubt, and in light of the fact that the claim was submitted prior to securing the services of his attorney, the Board will construe the February 2015 claim liberally as a claim for an increased rating for the service-connected post-operative umbilical hernia. The RO has not yet considered that claim in the first instance and therefore the Board does not have jurisdiction over it. That claim is referred to the RO for initial consideration. With respect to the arguments raised by the Veteran’s attorney on the November 2015 NOD, he is reminded that any claim of clear and unmistakable error (CUE) must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff’d sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (“to raise CUE there must be some degree of specificity as to what the alleged error is and … persuasive reasons must be given as to why the result would have been manifestly different”). If the Veteran wishes seek revision of a prior decision on the grounds of CUE, he should so notify the RO in writing, keeping in mind the specific requirements for CUE challenges set forth in 38 C.F.R. § 3.105(a).   Entitlement to service connection for stomach disability is dismissed. 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. A review of the record indicates that in an October 2000 rating decision, the RO granted service connection for residuals of postoperative umbilical hernia and assigned an initial noncompensable rating effective December 30, 1999. In February 2015, the Veteran submitted a VA Form 21-526EZ, on which he indicated that he wished to seek service connection for five disabilities, including a stomach disability. In a March 2015 rating decision, the RO, inter alia, denied the Veteran’s claim of service connection for a stomach disability. In July 2015, the Veteran submitted a statement indicating that it was his intent to file a claim for an increased rating for his service-connected umbilical hernia disability. In an August 2015 letter, the RO advised him that all claims must be submitted on a standardized form and he was provided the necessary form on which to submit his claim, but it was not forthcoming. In November 2015, the Veteran’s secured the services of an attorney, who filed a notice of disagreement (NOD) on his behalf. The attorney listed the specific issue of disagreement as “stomach condition” and checked the boxes indicating areas of disagreement as “service connection, effective date of award, and evaluation of disability.” In the narrative portion of the form, he indicated that The Veteran’s condition, umbilical hernia, began in service. The Veteran had an operation in an attempt to repair the condition while on active duty…The Veteran still has abdominal pain and a small painful scar. Based on his condition the veteran should have been awarded a 20% disability at the time of his discharge 12/29/1999.” The RO issued a statement of the case (SOC) in August 2018 denying service connection for a stomach condition. Later that month, the Veteran’s attorney submitted a VA Form 9 on which he argued that VA had “miscategorized” the Veteran’s February 2015 claim. He indicated that it had never been the Veteran’s intent to seek service connection for a stomach disability. Rather, he indicated that it had been the Veteran’s intent to file a claim for an increased rating for service-connected residuals of postoperative umbilical hernia. Under applicable criteria, 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 as to any or all issues involved in the appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204. Withdrawal may be made by an Veteran or by his or her authorized representative. Id. In the present case, in a statement received in August 2018, the Veteran’s attorney clarified that the Veteran had never intended to seek service connection for a stomach disability and did not wish to pursue an appeal with respect to that issue. The Board finds that this written statement constitutes an explicit and unambiguous withdrawal of the issue of entitlement to service connection for a stomach disability. Again, the Veteran is represented by counsel and, thus, the Board finds that the withdrawal was done with a full understanding of the consequences of such action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); 38 C.F.R. § 20.204 (2017); see also Acree v. O’Rourke, 891 F.3d 1009 (2018). Hence, there remain no allegations of fact or law for appellate consideration with respect to the claim of service connection for a stomach disability. Under these circumstances, the issue is no longer within the Board’s jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993) (en banc) aff’d, 39 F.3d 1574 (Fed. Cir. 1994) (holding that the Board is without the authority to proceed on an issue if the claimant indicates that consideration of that issue should cease). Accordingly, the Board does not have jurisdiction to review the appeal of the issue, and it is dismissed. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel