Citation Nr: 1300745	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  07-00 897	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

C. Eckart, Counsel


INTRODUCTION

The Veteran served on active duty from November 1965 to October 1967.

This matter arises from a March 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts.  The RO granted entitlement to service connection for diabetes mellitus and assigned a 10 percent disability rating.  The Veteran timely appealed the initial rating.  In a February 2007 rating decision the RO increasing the initial disability rating to 20 percent.  The Board remanded the claim for additional development and to address procedural deficiencies in November 2010, and in June 2012.

In its June 2012 remand, the Board referred the issue of entitlement to service connection for hypertension, as secondary to diabetes, to the Agency of Original Jurisdiction (AOJ).  To date it does not appear that further adjudicatory action has been taken on this matter.  Therefore, the Board does not have jurisdiction over it, and it again is REFERRED to the AOJ for appropriate action.


FINDINGS OF FACT

In December 2012, prior to the promulgation of a decision in the appeal, the Veteran's representative wrote that he wanted to withdraw the appeal with regard to the initial rating for diabetes mellitus, type II.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal as to the claim for an initial rating in excess of 20 percent for diabetes mellitus, type II, are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202., 20.204 (2012). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing, or on the record at a hearing, at any time before the Board promulgates a decision. 38 C.F.R. § 20.204.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.  Id.  

In this case, the Appellant filed a notice of disagreement in February 2006 to the RO's March 2005 rating which denied an increased rating for the Veteran's diabetes mellitus, evaluated as 10 percent disabling at the time.  He then timely submitted a signed VA-Form I-9 (Substantive Appeal Form) in January 2007 which included this issue on appeal, following the issuance of a statement of the case in October 2006.  The appeal was certified to the Board in July 2007, and returned to the Board following remands issued in November 2010 and June 2012.  

In a letter dated December 20, 2012 the Veteran's representative indicated that he wished to withdraw from appeal the claim for a higher initial rating for diabetes mellitus.  Thus, no allegations of errors of fact or law remain for appellate consideration with respect to this matter.  Accordingly, the Board does not have jurisdiction to review this matter on appeal and it must be dismissed. 


ORDER

The appeal as to the claim for an initial rating in excess of 20 percent for diabetes mellitus, type II, is dismissed. 




____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs