Citation Nr: 21073944
Decision Date: 12/13/21	Archive Date: 12/13/21

DOCKET NO. 19-22 172
DATE: December 13, 2021

ORDER

Entitlement to a disability rating in excess of 40 percent for lumbar strain with degenerative arthritis and intervertebral disc syndrome is dismissed.

Entitlement to service connection for allergies is dismissed.

Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for sleep apnea is dismissed.  

Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed.

FINDING OF FACT

In July 2021, prior to the promulgation of a decision, the Board received notification from the Veteran that a withdrawal of this appeal is requested.

CONCLUSION OF LAW

The criteria for withdrawal of the appeal have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from June 1998 to June 2003.

This case is on appeal before the Board of Veterans' Appeals (Board) from an August 2018 rating decision.

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.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

In a statement received by the Board in July 2021, the Veteran stated "I wish to withdraw my claim dated January 2019 to its entirety.  I have other issues going on with it and I need the appeal to be taken off the docket and withdrawn please."  

The Board notes that the reference to January 2019 appears to correspond to a January 2019 notice of disagreement (NOD), which was followed by a May 2019 statement of the case (SOC) that addressed the four issues noted above.  The Veteran subsequently submitted a July 2019 VA Form 9 and perfected the appeal of these four issues to the Board.  At the time of the Veteran's July 2021 statement, the four issues identified above were the only issues on appeal and on the Board's docket.  

In review, the Board finds that the Veteran has withdrawn his appeal as to the issues listed above with his July 2021 written withdrawal, as such complied with 38 C.F.R. § 19.55.  See Hembree v. Wilkie, 33 Vet. App. 1 (2020) (holding that written requests to withdraw an issue on appeal in the Legacy system are governed by 38 C.F.R. § 20.204(b) (redesignated as 38 C.F.R. § 19.55(b), effective Feb. 19, 2019)).   As such, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal of the issues listed above and they are dismissed.

Finally, the Board notes that the Veteran may be eligible for special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s), in light of his service-connected PTSD being rated as total (100 percent) and his additional service-connected disabilities independently ratable at 60 percent or more.  See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).  The Board encourages the Veteran to apply for this benefit, if desired. 

 

K.A. KENNERLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Hoopengardner, 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.