Citation Nr: 1307335	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO.  09-46 452	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent prior to May 7, 2010, for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar.

2.  Entitlement to a rating in excess of 20 percent on and after May 7, 2010, for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

S. Pflugner, Counsel

INTRODUCTION

The Veteran served on active duty from November 1960 to October 1964 and from September 1965 to September 1991.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office located in Waco, Texas (RO).

The Board is cognizant of the ruling in Rice v. Shinseki,  22 Vet. App. 447 (2009), wherein the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disability at issue renders him unemployable.  Accordingly, the Board concludes that a claim for TDIU has not been raised.

During the pendency of this appeal, the Veteran requested, and then withdrew that request for a Board hearing.  Since the withdrawal, the Veteran has not requested that he be afforded another hearing.


FINDINGS OF FACT

1.  Prior to the promulgation of a decision, the Veteran withdrew his appeal as to the issue of entitlement to a rating in excess of 10 percent prior to May 7, 2010, for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar.

2.  Prior to the promulgation of a decision, the Veteran withdrew his appeal as to the issue of entitlement to a rating in excess of 20 percent on and after May 7, 2010, for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar.


CONCLUSION OF LAW

1.  The criteria for withdrawal of the appeal by the Veteran for the issue of entitlement to a rating in excess of 10 percent prior to May 7, 2010, for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar, have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(a), (b), (c) (2012).

2.  The criteria for withdrawal of the appeal by the Veteran for the issue of entitlement to a rating in excess of 20 percent on and after May 7, 2010, for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar, have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. 
§§ 20.202, 20.204(a), (b), (c) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

An appeal may be withdrawn as to any or all issues at any time before the Board promulgates a decision.  38 C.F.R. § 20.204(a), (b)(3).  Such withdrawal may be made by the veteran or by his or her authorized representative and, unless done on the record at a hearing, it must be in writing.  38 C.F.R. § 20.204(a). 

In a February 2013 statement, the Veteran expressed a desire to withdraw his claims of entitlement to a rating in excess of 10 percent prior to May 7, 2010, and a rating in excess of 20 percent on and after May 7, 2010, both for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar.  Specifically, the Veteran stated that he was satisfied with a rating decision wherein the rating assigned to his service-connected right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar, was increased to 20 percent, effective May 7, 2010.  The Veteran then requested that further "appeal action...be dropped."  As such, no allegation of error of fact or law remains before the Board for consideration with regard to these issues.  As such, the Board finds that the Veteran has withdrawn his claims, and accordingly, the Board does not have jurisdiction to review the issues of entitlement to a rating in excess of 10 percent prior to May 7, 2010, and a rating in excess of 20 percent on and after May 7, 2010, both for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar, and they are dismissed.


ORDER

The appeal as to the issue of entitlement to a rating in excess of 10 percent prior to May 7, 2010, for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar, is dismissed.

The appeal as to the issue of entitlement to a rating in excess of 20 percent on and after May 7, 2010, for right great toe disability, described as arthritis, first metatarsophalangeal joint, with residual scar, is dismissed.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs