Citation Nr: 21027847 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-27 473 DATE: May 7, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative disc disease cervical spine post-fusion with scar is dismissed. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease lumbar spine is dismissed. Entitlement to service connection for foot injury is dismissed. Entitlement to service connection for sleep apnea is dismissed. FINDING OF FACT In March 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative requesting withdrawal of the Veteran's appeal of the issues of: (1) Entitlement to a disability rating in excess of 20 percent for degenerative disc disease cervical spine post-fusion with scar; (2) Entitlement to a disability rating in excess of 20 percent for degenerative disc disease lumbar spine; (3) Entitlement to service connection for foot injury, and (4) Entitlement to service connection for sleep apnea. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal are met as to the claim for entitlement to a disability rating in excess of 20 percent for degenerative disc disease cervical spine post-fusion with scar. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of the appeal are met as to the claim for entitlement to a disability rating in excess of 20 percent for degenerative disc disease lumbar spine. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 3. The criteria for withdrawal of the appeal are met as to the claim for entitlement to service connection for foot injury. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 4. The criteria for withdrawal of the appeal are met as to the claim for entitlement to service connection for sleep apnea. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from April 1969 to November 1970. The Veteran, in his July 2015 appeal to the Board, requested a video-conference hearing at a Department of Veterans' Affairs (VA) regional office. In February 2021, the Board notified the Veteran that due to COVID-19, many regional offices are closed to the public, which limits the Board's ability to hold hearings at these locations and offered instead a virtual tele-hearing. The correspondence also informed the Veteran that he could withdraw his hearing request and allow a Veterans Law Judge to decide the appeal on the information already on file. See Board correspondence dated February 24, 2021. In March 2021, the Veteran's representative notified the Board that the Veteran "is withdrawing his request for a hearing before the Board, and he is withdrawing all of his appeals as well." See Correspondence from A.W. received March 2, 2021 (and enclosed statement on VA Form 21-4138) (hereafter, "Representative's March 2021 Correspondence"). Therefore, the Veteran's request for a hearing is deemed withdrawn. Dismissal of Appeal Pursuant to Veteran's Request The Board may dismiss any appeal that 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(a). Withdrawal may be made by the Veteran or his or her authorized representative. Id. An appeal withdrawal is effective when received by the Board. 38 C.F.R. § 19.55(b)(3). The United States Court of Appeals for Veterans Claims in Hembree v. Wilkie, 33 Vet. App. 1, 5-8 (2020) recently held 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 February 19, 2019), as opposed to the standard for withdrawal of claims during Board hearings as set forth in DeLisio v. Shinseki, 25 Vet. App. 45 (2011), and adopted in Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). Under Hembree, to be effective, a withdrawal must be in writing and must include the name of the veteran or the name of the claimant or appellant if other than the veteran, the applicable Department of Veterans Affairs file number, a statement that the appeal is withdrawn, and if the appeal involves multiple issues, "the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal." Hembree, 33 Vet. App. at 5. In the present case, the Veteran's representative notified the Board by written correspondence in March 2021 that the Veteran "is withdrawing all of his appeals," clearly indicating that the Veteran is withdrawing the appeal in its entirety. See Representative's March 2021 Correspondence. Both the representative's correspondence and the attached VA Form 21-4138 identify the Veteran by name and VA file number. Id. Applying the relevant VA regulation, the Board finds the Veteran properly withdrew all of his claims on appeal. Thus, 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 B. Farrell, 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.