Citation Nr: 21062063
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 17-43 765
DATE: October 6, 2021

ORDER

1. The appeal seeking entitlement to service connection for a low back disability is dismissed.

2. The appeal seeking entitlement to a compensable evaluation for bilateral hearing loss is dismissed.

FINDING OF FACT

On January 11, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that he wished to withdraw his pending appeal, to include all issues.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal seeking entitlement to service connection for a low back disability are met.  38 U.S.C. § 7105 (b)(2) (2012); 38 C.F.R. § 19.55 (2020).

2. The criteria for withdrawal of an appeal seeking entitlement to a compensable evaluation for bilateral hearing loss is dismissed.  38 U.S.C. § 7105 (b)(2) (2012); 38 C.F.R. § 19.55 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from August 1968 to February 1972.

This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In a November 2019 rating decision, the RO granted service connection for generalized anxiety disorder with posttraumatic features.  The RO's grant of service connection for generalized anxiety disorder with posttraumatic features is considered a full grant of benefits on appeal; therefore, that issue is no longer before the Board for appellate consideration.

Dismissal

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 19.55. 

In Hembree v. Wilkie, the United States Court of Appeals for of Veterans Claims held that written withdrawals of an appeal are governed by the application regulations instead of DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (requiring a withdrawal to be explicit, unambiguous, and done with a full understanding of the consequences.)  See 33 Vet. App. 1,7 (2020).

The instant case here is a Legacy appeal, and accordingly, the applicable regulation is 38 C.F.R. § 19.55, which requires that the withdrawal include the name of the appellant and the file number, and a statement that the appeal is withdrawn.  See 38 C.F.R. §19.55(b)(1).  The Veteran or representative must also specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal.  Id.  Notably, under 38 C.F.R. §19.55(c) withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement as to all issues to which the withdrawal applies.

In the present case, in a January 11, 2021 statement in support of claim, the Veteran's representative notified the Board that the Veteran intended to withdraw the aforementioned service connection issues from further consideration before the Board.  The statement included the Veteran's name and claims file number.

The Board concludes that with regard to these issues, 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.

 

 

S. B. MAYS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Beach, 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.