Citation Nr: 1306995 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 09-41 892A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating from August 17, 2007 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for residuals of the fractured distal third of the left tibia and fibula. 2. Entitlement to an initial compensable rating from January 16, 2008 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for low back strain. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active military service from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in St. Petersburg, Florida, in which the RO granted service connection for residuals of the fractured distal third of the left tibia and fibula and assigned a noncompensable rating, effective from January 16, 2008. In that same rating action, the RO granted service connection for low back strain, as secondary to the service-connected fractured left tibia and fibula, and assigned a noncompensable rating, effective from January 16, 2008. The Veteran disagreed with the ratings assigned to these service-connected disabilities and subsequently filed a timely appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). In a September 2009 rating action, the RO granted an earlier effective date of August 17, 2007, for the grant of service connection for residuals of the fractured distal third of the left tibia and fibula. In April 2012, the Board remanded this case for additional development. By a rating decision, dated in November 2012, the RO increased the disability rating for the Veteran's service-connected residuals of the fractured distal third of the left tibia and fibula from noncompensable to 10 percent disabling, effective from June 4, 2012 (the date of VA examination showing increased symptoms). In that same rating action, the RO also increased the disability rating for the Veteran's service-connected low back strain from noncompensable to 10 percent disabling, effective from June 4, 2012 (the date of VA examination showing increased symptoms). Because the RO assigned "staged" ratings to the Veteran's service-connected disabilities, the Board has characterized the issues on appeal as stated on the first page of this decision. See Fenderson, supra. FINDINGS OF FACT 1. In November 2012, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal in regard to the claim of entitlement to an initial compensable rating from August 17, 2007 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for residuals of the fractured distal third of the left tibia and fibula. 2. In November 2012, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal in regard to the claim of entitlement to an initial compensable rating from January 16, 2008 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for low back strain. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an initial compensable rating from August 17, 2007 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for residuals of the fractured distal third of the left tibia and fibula, have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an initial compensable rating from January 16, 2008 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for low back strain, have been met. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). As explained in the Introduction above, the Veteran submitted a timely appeal with respect to his claims for initial higher ratings for his service-connected residuals of the fractured distal third of the left tibia and fibula and service-connected low back strain. The Board has characterized his claims as "staged" ratings because there are two separate rating periods for each service-connected disability. For the service-connected residuals of the fractured distal third of the left tibia and fibula, the two separate rating periods are entitlement to an initial compensable rating from August 17, 2007 to June 3, 2012, and entitlement to a disability rating in excess of 10 percent from June 4, 2012. For the service-connected low back strain, the two separate rating periods are entitlement to an initial compensable rating from January 16, 2008 to June 3, 2012, and entitlement to a disability rating in excess of 10 percent from June 4, 2012. In a VA Form 21-4138, Statement in Support of Claim, dated in November 2012, the Veteran stated that he was satisfied with the grant of a 10 percent for his service-connected residuals of the fractured distal third of the left tibia and fibula. He indicated that he was also satisfied with the grant of a 10 percent for his service-connected low back strain. According to the Veteran, he wanted to withdraw "any pending appeals in reference to this appeal." The statement submitted by the Veteran is sufficient to withdraw his appeal for initial higher ratings, characterized as the following: (1) entitlement to an initial compensable rating from August 17, 2007 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for residuals of the fractured distal third of the left tibia and fibula, and (2) entitlement to an initial compensable rating from January 16, 2008 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for low back strain. As a result, no allegation of error of fact or law remains before the Board for consideration with regard to the aforementioned "staged" rating claims. Hence, the appeal of these issues is dismissed. ORDER The issue of entitlement to an initial compensable rating from August 17, 2007 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for residuals of the fractured distal third of the left tibia and fibula, is dismissed. The issue of entitlement to an initial compensable rating from January 16, 2008 to June 3, 2012, and a disability rating in excess of 10 percent from June 4, 2012, for low back strain, is dismissed. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs