Citation Nr: 21012120
Decision Date: 03/03/21	Archive Date: 03/03/21

DOCKET NO. 16-20 138
DATE: March 3, 2021

ORDER

The petition to reopen the previously denied claim of entitlement to service connection for sleep apnea is dismissed.

Entitlement to an initial compensable rating for scars of the abdomen is dismissed.

Entitlement to an initial rating in excess of 30 percent for painful scars of the abdomen is dismissed.

FINDING OF FACT

Prior to the promulgation of a decision, the Veteran withdrew his appeal for sleep apnea in a March 2019 written statement and withdrew his appeal for increased ratings for scars of the abdomen in a February 2021 written statement.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant (or his or her authorized representative) 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 U.S. Army from August 1979 to June 1996.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In a March 2016 rating decision, the RO awarded an increased, but separate, 30 percent evaluation for the Veteran’s abdominal scars due to pain.  As additional evaluations are potentially available for scars, the claim for an increased rating remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993).

Whether new and material evidence has been submitted to reopen the previously denied claim of entitlement to service connection for sleep apnea and entitlement to increased ratings for scars of the abdomen.

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.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

With regards to the claim for sleep apnea, in a January 2019 Report of General Information, the Veteran indicated that he wished to withdraw his appeal for sleep apnea.  However, in a subsequent January 2019 statement, the Veteran indicated that he did not wish to withdraw his appeal.  A letter was sent to the Veteran in March 2019 to seek clarification as to whether the Veteran wished to withdraw his appeal for sleep apnea.  In response to the letter, in a March 2019 signed statement to the Board, the Veteran’s representative stated that the Veteran wished to withdraw his appeal for sleep apnea. 

With regards to the claims for increased ratings for his abdominal scars, in a February 2021 signed statement, the Veteran’s representative stated that the Veteran requested to “withdraw the appeal for an increase of [his] scars from further consideration.”  

The signed statements by Veteran’s representative are clear and unambiguous.  Additionally, the signed statements were received after the issuance of a SSOC, demonstrating that the Veteran was aware of the consequences of his actions.  DiLisio v. Shinseki, 25 Vet. App. 45 (2011).  As the Veteran has indicated that he wishes to withdraw his entire appeal, no allegation of error of fact or law remains before the Board for consideration.  38 C.F.R. § 19.55(c).  Accordingly, the Board does not have jurisdiction to review the appeal, and it must be dismissed.

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Mortimer, Erin

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.