Citation Nr: 21075932
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 18-04 221
DATE: December 21, 2021

ORDER

The issue of entitlement to service connection for diabetes mellitus is dismissed.

The issue of entitlement to service connection for hypertension is dismissed.

FINDING OF FACT

In August 2021, prior to the promulgation of a Board of Veterans' Appeals (Board) decision, the Veteran indicated that he wished to withdraw from appellate consideration the issues of entitlement to service connection for diabetes mellitus and hypertension.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal as to the issue entitlement to service connection for diabetes mellitus are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for withdrawal of the appeal as to the issue entitlement to service connection for hypertension are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from June 1979 to January 1988.

These matters come before the Board on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  Jurisdiction of the Veteran's claims file currently resides with the Nashville, Tennessee RO.

In August 2021, the Veteran and his representative appeared for a Board hearing before the undersigned.  A transcript of the hearing is of record.

Withdrawal

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.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 a claimant or by his or her authorized representative.  Id.  In Acree v. O'Rourke, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that an effective claim withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant.  891 F.3d 1009 (Fed. Cir. 2018).

Here, the Veteran's representative stated during the August 2021 Board hearing that the Veteran wished to withdraw from appellate consideration both issues currently on appeal.  See Board Hearing Tr. at 2-3.  The representative then identified those issues as entitlement to service connection for diabetes mellitus and hypertension.  Id.  

In explaining the Veteran's rationale for withdrawal, the representative indicated that the Veteran was currently receiving the highest possible rating at the earliest available effective date.  Id.  The Veteran's request for withdrawal was later reduced to writing in a hearing transcript.

The Board finds the Veteran's sentiments, conveyed by his representative, to constitute an explicit and unambiguous withdrawal of all of the issues currently pending before the Boardi.e., service connection for diabetes mellitus and hypertension.  Additionally, the Board finds that the Veteran has demonstrated a full understanding of the effect of such withdrawal, particularly as he is represented by a private attorney.  As a result, there remain no allegations of errors of fact or law for appellate consideration.  Thus, the Board does not have jurisdiction over the Veteran's appeal, and it is dismissed.

 

 

S.C. KREMBS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	N.S. Pettine, 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.