Citation Nr: 1308064	
Decision Date: 03/11/13    Archive Date: 03/20/13

DOCKET NO.  07-14 432	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to an initial rating in excess of 10 percent for residuals of a left elbow fracture, for the period prior to October 9, 2009.

2.  Entitlement to a rating in excess of 30 percent for residuals of a left elbow fracture, for the period beginning October 9, 2009.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from November 1987 to April 1988 and from November 2001 to October 2002.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.

The Veteran testified before the undersigned at a May 2008 Travel Board hearing.  The hearing transcript is of record.  

In a December 2009 rating decision, the Veteran's disability rating was increased to 30 percent, effective October 9, 2009.  A separate 10 percent rating was assigned for peripheral neuropathy of the left hand and forearm.  Such resulted in a combined 40 percent rating for the residuals of the left elbow fracture.  The issue concerning the evaluation of the Veteran's left elbow disability remains before the Board on appeal.  AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

This case was previously remanded by the Board in October 2008 and August 2011 for further development by the originating agency.  The case has been returned to the Board for further appellate action.



FINDING OF FACT

On March 8, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant (or his or her authorized representative) 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 FINDINGS AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

In the present case, the appellant filed a statement in November 2011 wherein he indicated that he was "not appealing the decision you have made for me, for my disability" [sic], and that he was "happy with the 40% disability rating."  Similarly, in a statement received on March 8, 201, the appellant, through his representative, asked that his appeal be withdrawn and removed from the Board's docket.  Thus, based on this correspondence, there remain no allegations  of errors 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.




		
MICHAEL A. HERMAN
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs