Citation Nr: 1301129 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 08-27 494 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to an increased rating for residuals of cryoablation for prostate cancer. 2. Entitlement to an initial rating for post-traumatic stress disorder (PTSD) in excess of 30 percent prior to October 24, 2005; in excess of 50 percent from March 25, 2010; and in excess of 70 percent from December 14, 2010. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) prior to December 14, 2010. 4. Entitlement to an earlier effective date for service connection for chronic fatigue syndrome (CFS). REPRESENTATION Appellant represented by: Wade Bosley, Attorney at Law ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from September 1969 to March 1972. This matter comes before the Board of Veterans' Appeals (Board) from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. Historically, a May 2007 rating decision granted service connection for PTSD which was assigned an initial 30 percent rating; granted service connection for prostate cancer, status post cryoablation, which was assigned an initial noncompensable rating; granted service connection for erectile dysfunction, which was assigned an initial noncompensable rating; and granted special monthly compensation (SMC) for loss of use of a creative organ; all effective October 24, 2005. The Veteran's attorney filed a Notice of Disagreement (NOD) with the rating assigned for PTSD in September 2007. A November 2007 rating decision granted an increase to 10 percent for residuals of cryoablation for prostate cancer, effective October 24, 2005, and an NOD to this decision was filed in November 2007. A Statement of the Case addressing both of these matters was issued in July 2008 and the appeal was perfected by filing VA Form 9 in August 2008, in which there was a request for a videoconference hearing. A February 2009 rating decision granted service connection for chronic fatigue syndrome (CFS) which was assigned an initial 60 percent rating, both effective September 3, 2008. In March 2009 the Veteran's attorney filed an NOD as to the effective date for service connection for CFS (alleging that it should be in September 2006). A February 2010 rating decision granted an earlier effective date for service connection for CFS as of September 8, 2006. A November 2010 rating decision increased the 30 percent rating for PTSD to 50 percent, effective March 25, 2010. Correspondence in December 2010 and January 2011 from the Veteran's attorney reflects that the appeal as to the claim for a rating in excess of 10 percent for residuals of cryoablation for prostate cancer was withdrawn. A January 2012 rating decision granted service connection for coronary artery disease (CAD) with prior myocardial infarction and drug eluting stent placement, which was assigned an initial 10 percent rating from October 24, 2005; granted a TDIU rating from December 14, 2010; granted a 70 percent rating for PTSD from December 14, 2010; and granted basic eligibility to Dependents' Educational Assistance (DEA) from December 14, 2010. That decision confirmed and continued the 60 percent rating for CFS; a 10 percent rating for tinnitus; a 10 percent rating for residuals of cryoablation for prostate cancer; a noncompensable rating for bilateral hearing loss; and a noncompensable rating for erectile dysfunction. In February 2012 the Veteran's attorney filed an NOD as to the effective date for the 70 percent rating for PTSD, the effective date for a TDIU rating; and an alleged failure to award SMC under 38 U.S.C.A. § 1114(s). A Supplemental SOC (SSOC) was issued in May 2012 as to the effective date for a TDIU rating. A July 2012 rating decision found clear and unmistakable error (CUE) in the November 2007 rating decision having assigned only a 10 percent rating for residuals of cryoablation for prostate cancer, and assigned a 100 percent schedular rating effective July 10, 2006. That decision also granted SMC based upon being housebound from September 8, 2006. In June 2012 the Veteran's attorney submitted a letter stating that he wished to perfect the appeal as to the "remaining issue" of the effective date for a TDIU rating and in an accompanying VA Form 9 it was clarified that no Board hearing was desired. In a November 2012 letter the Veteran's attorney stated that he was enclosing "an Appeal Cancellation Form" and to "[p]lease show all appeals cancelled" because "there are no issues left to appeal." Also, it was stated that although the case was scheduled for a Board hearing on December 13, 2012, "the hearing [should be] removed from the calendar." Accordingly, the request for a hearing has been withdrawn. FINDINGS OF FACT In November 2012, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's attorney that a withdrawal of this appeal was requested. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the Veteran's attorney have been 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 which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204 (2012). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). Here, the Veteran's attorney submitted written notification to the Board in November 2012, requesting a withdrawal of this appeal in its entirety. Hence, there remain no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. ORDER The appeal is dismissed. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs