Citation Nr: 1807996	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  11-31 739A	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss disability.

2.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for pes planus.

3.  Entitlement to service connection for gastroesophageal reflux disease (GERD), to include as secondary to the service-connected lumbar spine disability.

 4. Entitlement to service connection for tinnitus.

 5. Entitlement to service connection for bilateral anterior polar cataracts.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

K. L. Wallin, Counsel


INTRODUCTION

The Veteran served on active duty from February 2000 to March 2007.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

The issues of service connection for bilateral hearing loss and pes planus were previously denied by the RO in February 2008.  The Board must address the question of whether new and material evidence to reopen the claims has been received because the issue goes to the Board's jurisdiction to reach the underlying claims and adjudicate them on a de novo basis.  See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).  In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

The Board notes in May 2010, the RO denied service connection for depressive disorder.  The Veteran filed a notice of disagreement (NOD) with the denial and a separate statement of the case (SOC) only as to this issue was issued on November 28, 2011.  In his December 2011 substantive appeal, the Veteran indicated that he was only appealing the issues contained in the November 29, 2011, SOC, which included the issues listed on the cover page and not the issue of service for depressive disorder.  Consequently, the matter is not in appellate status and the Board does not have jurisdiction over the issue.




FINDINGS OF FACT

1.  The Veteran in this case served on active duty from February 2000 to March 2007.

2.  On January 23, 2018, prior to the promulgation of a decision in the appeal, VA received notification from the Veteran that a withdrawal of this appeal is requested.


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 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. § 7105 (2012).  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 (2017).  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 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.




		
E. I. VELEZ
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs