Citation Nr: 1829769	
Decision Date: 08/06/18    Archive Date: 08/17/18

DOCKET NO.  15-06 364	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE


Entitlement to service connection for cancer, to include non-Hodgkins lymphoma.  


REPRESENTATION

Veteran represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Saira Spicknall, Counsel


INTRODUCTION

The Veteran served on active duty from August 1955 to January 1958.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge of the Board (video conference hearing) in June 2018.  A transcript of that hearing has been associated with the claims file.  

During the pendency of this appeal, entitlement to connection for posttraumatic stress disorder (PTSD) was granted by a March 2018 rating decision, thereby constituting a full grant of the benefits sought on appeal and thus, this issue is no longer in appellate status before the Board.

The Board observes that the issues of entitlement to service connection for a cervical spine disability, entitlement to service connection for a neurological disability (with manifestations of tremors), and entitlement to service connection for residuals of a head injury are also separately on appeal.  The Veteran provided testimony on these issues at a hearing at the RO before a different Veterans Law Judge of the Board in February 2012.  These issues were then remanded by the Board in April 2012 and May 2018 for additional development.  To date these issues are still being developed at the RO and have not yet been returned to the Board.  In January 2015 the Veteran filed a substantive appeal (Form 9) with respect to the issues of service connection for a cancer condition, to include non-Hodgkin's lymphoma and a neurological disability, to include a pinched nerve, sciatica and peripheral neuropathy.  In the June 2018 hearing, the Veteran and his representative indicated that the issue of service connection for a neurological disability, to include a pinched nerve, sciatica and peripheral neuropathy, was the same as the issue for service connection for a neurological disability (with manifestations of tremors) previously on appeal.  As the Veteran provided additional testimony on his neurological disability, a panel decision that includes both Veterans Law Judges who held the February 2012 and June 2018 hearings will be necessary once development of the remanded issues has been completed.  That issue has been merged in the Board's Veterans Appeals Control and Locator System (VACOLS) with the earlier current appeal of the issue of service connection for a neurological disability that is the subject of the Board's May 2018 remand and as noted, is still under development by the RO.  At the time of the June 2018 hearing, the Veteran and his representative indicated they did not want a third hearing before another Veterans Law Judge who would also be included in the panel decision.  See Arneson v. Shinseki, 24 Vet. App. 379 (2011).


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from August 1955 to January 1958.

2.  In a June 8, 2018 video conference hearing before the undersigned, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of the issue of entitlement to service connection for a cancer disability, to include non-Hodgkins lymphoma, is requested.  

3.  The issue of entitlement to service connection for a cancer disability, to include non-Hodgkins lymphoma, is the only issue remaining on appeal in the current appeal stream.  


CONCLUSION OF LAW

The criteria for withdrawal of an appeal for the issue of entitlement to service connection for a cancer disability, to include non-Hodgkins lymphoma, by the Veteran have been met.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.





REASONS AND BASES FOR FINDINGS AND CONCLUSION

During the June 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew the issue of entitlement to service connection for a cancer disability, to include non-Hodgkins lymphoma.  The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to that issue.  See Hearing Transcript at page 2.  The Veteran's full understanding of the consequences demonstrated by noting on the record that a preliminary discussion about the Veteran's intent to withdraw this issue was held prior to the video conference hearing and the Veterans Law Judge clearly specified on the record which issues would remain on appeal, thereby indicating the claim for service connection for a cancer disability would no longer be in appellate consideration before the Board.   See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).

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. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the Veteran has withdrawn the issue of entitlement to service connection for a cancer disability, to include non-Hodgkins lymphoma, which is the only remaining issue in this appeal and, hence, 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.


							(Continued on the next page)
		
ORDER

The appeal, with respect to the issue of service connection for a cancer disability, to include non-Hodgkins lymphoma, is dismissed.

		
S. L. Kennedy
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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