Citation Nr: 21041697
Decision Date: 07/09/21	Archive Date: 07/09/21

DOCKET NO. 17-40 838
DATE: July 9, 2021

ORDER

Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella with instability is dismissed.

FINDING OF FACT

Prior to the promulgation of a decision, the Veteran withdrew his appeal for a rating in excess of 10 percent for left knee chondromalacia patella with instability in a June 2021 written statement.

CONCLUSION OF LAW

The criteria for dismissal of the appeal for a rating in excess of 10 percent for left knee chondromalacia patella with instability 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 from September 1968 to April 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran submitted a notice of disagreement (NOD) in January 2017 and perfected a substantive appeal by submitting a VA Form 9 in August 2017. 

The Board notes that the Veteran expressed a desire to withdraw an appeal for entitlement to an initial compensable rating for painful shoulder scars.  The RO awarded service connection and awarded a noncompensable rating for three scars in the December 2016 rating decision.  The Veteran appealed the initial noncompensable rating in the January 2017 NOD.  The RO awarded service connection for two additional shoulder scars in a June 2017 rating decision and continued a noncompensable evaluation for all five of the Veteran's painful shoulder scars.  The Veteran did not initiate a substantive appeal by filing a VA Form 9 for an initial compensable rating for his service-connected shoulder scars, and the issue was not certified to the Board.   Accordingly, the Board has no jurisdiction to decide the issue and it is not currently before the Board.  See 38 U.S.C. § 7104. 

1. Entitlement to a rating in excess of 10 percent for left knee chondromalacia patella with instability

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.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 a rating in excess of 10 percent for left knee chondromalacia patella with instability, in a June 2021 letter to his representative, the Veteran indicated that he wished to withdraw his appeal for "service-connected Left Knee (increase) and Scar (increase)."   

In a signed June 2021 VA Form 21-4138Statement in Support of Claim, the Veteran's representative stated that the Veteran requested to withdraw his appeal "for increase on his SC Left Knee, and SC Scar."  The representative further stated that the "Veteran is also aware this case will now become closed and final."  The signed statements by Veteran's representative are clear and unambiguous.  Hembree v. Wilkie, 33 Vet. App. 1 (2020).  

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	Jones, Catherine J.

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.