Citation Nr: 20031246
Decision Date: 05/04/20	Archive Date: 05/04/20

DOCKET NO. 16-23 659
DATE: May 4, 2020

ORDER

Entitlement to a disability rating in excess of 10 percent for hypertension is dismissed.

FINDING OF FACT

At multiple times during the pendency of the Veteran’s appeal, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran through his authorized representative, that a withdrawal of this appeal is requested.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran’s authorized representative have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1966 to July 1970.  The Veteran was awarded the Combat Action Ribbon.  This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision.

The Veteran requested a video-conference hearing before a Veterans Law Judge (VLJ).  See May 2016 VA Form 9, Appeal to the Board of Veterans Appeals.  The Veteran and his representative withdrew the request for a hearing.  See November 2, 2016 VA Form 21-4138; see also March 13, 2019 VA Form 21-4138; January 2, 2020 VA Form 21-4138; January 31, 2020 VA Form 21-4138.  Accordingly, the Veteran’s hearing request is deemed withdrawn.  38 C.F.R. § 20.704(e).

Entitlement to a disability rating in excess of 10 percent for hypertension 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.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.205.  Only an appellant, or an appellant’s authorized representative, may withdraw an appeal.  Id.

VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits.  Id.  Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran’s claim number, and a statement that the appeal is withdrawn.  Id. 

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The Veteran’s claims folder contains multiple notifications submitted by the Veteran’s authorized representative containing the request to withdraw the appeal.  See November 2, 2016 VA Form 21-4138; see also January 2, 2020 VA Form 21-4138; January 31, 2020 VA Form 21-4138.  The notifications have been reduced to writing, and contain the Veteran’s name and claim number.  The Board has not yet issued a decision concerning the issues on appeal.  Thus, the criteria are met for withdrawal of the appeal.  

When a pending appeal is withdrawn, there are no longer allegations of factual or legal error with respect to the issue that had been previously appealed.  In such an instance, dismissal of the pending appeal is appropriate.  See 38 U.S.C. § 7105(d).  Accordingly, further action by the Board on the appeal is not appropriate.  The Board does not have jurisdiction to review the appeal and it is dismissed.

 

 

P.M. DILORENZO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Sean Mussey, Associate Counsel

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.