Citation Nr: 1303783 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-36 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for left arm shrapnel wounds. 2. Entitlement to an initial compensable evaluation for diabetic retinal changes with bilateral cataracts. 3. Entitlement to an initial evaluation in excess of 10 percent for scarring due to left arm shrapnel wounds. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Keyvan, Associate Counsel INTRODUCTION The Veteran had active service from August 1967 to July 1969. This matter comes before the Board of Veterans Appeals (Board) following a February 2010 rating action of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin, which granted service connection for residual scar, left arm shrapnel wound (0 percent, effective August 3, 2009), and for diabetic retinal changes with bilateral cataracts (0 percent, effective July 31, 2009). During the pendency of the Veteran's appeal, and specifically in the June 2012 rating action, the RO increased the disability evaluation for the service-connected residual of left arm shrapnel wounds to 10 percent, effective from August 3, 2009 (date of receipt of claim). See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found). The RO also granted a separate 10 percent disability rating for the Veteran's residual scarring due to the left arm shrapnel wounds, effective from September 14, 2011. FINDING OF FACT Prior to the promulgation of a decision in the appeal, the RO received notifications from the Veteran to the effect that he no longer intended to appeal any issue. CONCLUSION OF LAW The criteria for withdrawal of an appeal of the claims for a higher rating for residual of left arm shrapnel wound, a compensable rating for diabetic retinal changes with bilateral cataracts, and a higher rating for scarring due to the left arm shrapnel wounds have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2012). When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2012). As previously noted, the February 2010 rating decision granted service connection for the Veteran's scarring due to left arm shrapnel wounds, evaluating it as noncompensably disabling effective August 3, 2009; as well as his diabetic retinal changes with bilateral cataracts, which was also evaluated as noncompensably disabling, effective July 31, 2009. In his February 2010 Notice of Disagreement (NOD), the Veteran sought a higher rating for both disabilities. In August 2010, he perfected a timely appeal with respect to both issues and requested a hearing before a Veterans Law Judge at the RO. In a June 2011 rating decision, the RO granted the Veteran's claim for coronary artery disease status post coronary artery bypass grafting (CABG) associated with herbicide exposure, evaluating it as 60 percent disabling, and further granted his claim of entitlement to a total rating based on individual unemployability due to a service-connected disability (TDIU). Neither of these issues was on appeal. However, in light of the additional grant of service connection, the Veteran's combined rating for his service-connected disabilities increased to 70 percent. In a September 2011 submission, the Veteran noted that since perfecting his appeal in August 2010, he had been granted TDIU and awarded a combined disability rating of 70 percent for his service-connected disabilities. He withdrew his request for a hearing and asked that his name be removed from the list of Veterans waiting for a hearing date. As noted above, in the June 2012 rating action, the RO granted a separate 10 percent disability rating for the Veteran's residuals scars of the left arm shrapnel wound, and increased the disability rating for the service-connected residual of left arm shrapnel wound to 10 percent. After his claim was certified for appeal, in a July 2012 submission, the Veteran indicated that he had recently received notification that his appeal had been docketed at the Board. He reported that he was "not [a]ppealing anything." In light of the July 2012 and August 2011 submissions, the Board construes the Veteran's statements expressing satisfaction with the 70 percent combined disability rating and the grant of TDIU, and indicating that he is currently not appealing any issues, as a withdrawal of his appeal. In view of the Veteran's statements, the Board concludes that further action with regard to the claims developed for appeal is not appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.204 (2012). The Board does not have jurisdiction over these withdrawn issues and, as such, must dismiss the appeal. See 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012). ORDER The appeal is dismissed. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs