Citation Nr: 18139652 Decision Date: 09/28/18 Archive Date: 09/28/18 DOCKET NO. 14-31 774A DATE: September 28, 2018 ORDER Entitlement to service connection for a right shoulder disability is dismissed as withdrawn. Entitlement to service connection for a right knee disability is dismissed as withdrawn. Entitlement to service connection for a left knee disability is dismissed as withdrawn. Entitlement to non-service-connected pension benefits is dismissed as withdrawn. REMANDED Entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. At the June 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the issue of entitlement to service connection for a right shoulder disability. 2. At the June 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the issue of entitlement to service connection for a right knee disability. 3. At the June 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the issue of entitlement to service connection for a left knee disability. 4. At the June 2018 hearing, prior to the promulgation of a decision in the appeal, the Veteran requested withdrawal of the issue of entitlement to nonservice-connected pension benefits. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for entitlement to service connection for a right shoulder disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal for entitlement to service connection for a right knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal for entitlement to service connection for a left knee disability have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of the appeal for entitlement to nonservice-connected pension benefits have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1967 to January 1969. These matters come to the Board on appeal from an August 2011 rating decision. Issues Withdrawn The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (West 2014). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran properly appealed an August 2011 denial of the issues addressed herein. That appeal was certified to the Board in September 2014. At the June 2018 Board hearing, prior to promulgation of a decision by the Board as to those issues, the Veteran requested that the issues of entitlement to service connection for a right shoulder disability, left knee disability, right knee disability, and for nonservice-connected pension benefits, be withdrawn from appellate consideration. The repercussions of withdrawal of the issues were explained to the Veteran by the undersigned Veterans Law Judge. The withdrawal was 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the appellant. Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). Therefore, there remains no allegation of error of fact or law for appellate consideration as to those issues. Accordingly, the Board does not have jurisdiction to review those issues on appeal and they are dismissed. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. Prior to the transfer of the case to the Board, and subsequent to the most recent Statement of the Case, additional evidence pertinent to the Veteran’s appeal was associated with the record. This evidence includes VA treatment records from April 2014, examining the Veteran’s back and ordering imaging. As the RO has not adjudicated the issue on appeal with consideration of this additional evidence, the Board finds that the claim must be remanded. See Bernard v. Brown, 4 Vet. App. 384 (1993). The matter is REMANDED for the following action: 1. The RO must consider all additional evidence of record received since issuance of the July 2014 Statement of the Case, and readjudicate the issue on appeal. If the benefit sought remains denied, the RO should issue the Veteran and his representative a supplemental statement of the case and afford the appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as warranted. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Baker, Associate Counsel
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