Citation Nr: 1124027	
Decision Date: 06/23/11    Archive Date: 06/29/11

DOCKET NO.  06-29 140	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. J. Houbeck, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1967 to September 1971, and from November 1990 to July 1991.  The Veteran also served in the Army National Guard.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 Regional Office (RO) decision, which granted a claim for service connection for PTSD and assigned a 10 percent evaluation, effective February 24, 2005.

In a September 2006 supplemental statement of the case (SSOC), the evaluation assigned to the Veteran's PTSD was increased to 30 percent, effective February 24, 2005.  In addition, a February 2011 rating decision increased the evaluation for PTSD to 50 percent, effective February 24, 2005.  Since the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board.  AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

The Veteran's claim was remanded by the Board for further development in October 2009.  The requested development having been completed the matter again is before the Board.

 
FINDINGS OF FACT

1.  The Veteran in this case served on active duty from September 1967 to September 1971, and from November 1990 to July 1991.

2.  On March 1, 2011, prior to the promulgation of a decision in the appeal, the VA Regional Office in St. Louis, Missouri received notification from the Veteran that a withdrawal of this appeal is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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.A. § 7105 (West 2002).  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 (2010).  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 this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.  The Board notes that subsequent to the Veteran's March 2011 written statement expressing a desire to withdraw the appeal his representative submitted a June 2011 post-remand brief that argued for a rating greater than 50 percent.  However, the June 2011 brief did not reference the Veteran's March 2011 written statement or otherwise express a desire to rescind his stated desire to withdraw the appeal.  Thus, it appears that the representative was simply unaware of the Veteran's desire to withdrawal his appeal, and that the June 2011 brief was submitted in error.  As such, in light of the clearly expressed intentions of the Veteran to withdraw his claim, as expressed in the March 2011 written correspondence, the Board concludes that the Veteran no longer wishes to pursue his appeal.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.



ORDER

The appeal is dismissed.




		
MICHAEL LANE
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs