Citation Nr: 1308768	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  09-00 801	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to a disability rating in excess of 30 percent from January 25, 2008 to May 2, 2011, and a disability rating in excess of 60 percent from May 3, 2011, for the residuals of asbestosis.   


REPRESENTATION

Veteran represented by:	Eric B. Brauer, Esquire


ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel






INTRODUCTION

The Veteran had active military service from September 1951 to August 1955.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania, which denied the Veteran's claim for an increased rating for the residuals of asbestosis.  The Veteran subsequently filed a timely appeal.

In a May 2012 rating action, the RO increased the disability rating for the Veteran's service-connected residuals of asbestosis from 30 percent to 60 percent disabling, effective from May 3, 2011, the day of a VA examination which showed an increase in the severity of the residuals of asbestosis.    

Since the Veteran filed his claim for an increased rating on January 25, 2008, the issue is as styled on the title page of this decision.  See Hart v. Mayfield, 21 Vet. App. 505, 509-10 (2007).

The Veteran requested that he be afforded a Board hearing.  He was scheduled for a videoconference hearing to be held in February 2013.  However, the record indicates that the Veteran cancelled his hearing.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

In February 2013, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal in regard to the claim of entitlement to a disability rating in excess of 30 percent from January 25, 2008 to May 2, 2011, and a disability rating in excess of 60 percent from May 3, 2011, for the residuals of asbestosis.   

CONCLUSION OF LAW

The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to a disability rating in excess of 30 percent from January 25, 2008 to May 2, 2011, and a disability rating in excess of 60 percent from May 3, 2011, for the residuals of asbestosis, 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 FINDING 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(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 claim for an increased rating for the residuals of asbestosis.   

While the Veteran's claim was on appeal, the RO, in a May 2012 rating action, increased the disability rating for the Veteran's service-connected residuals of asbestosis from 30 percent to 60 percent disabling, effective from May 3, 2011, the day of a VA examination which showed an increase in the severity of the residuals of asbestosis.  

In February 2013, the Veteran submitted a statement to the Board.  He indicated that he was "happy with the settlement" and to not "go any further."  The Board construes this statement as a withdrawal of the Veteran's appeal for an increased rating, characterized as entitlement to a disability rating in excess of 30 percent from January 25, 2008 to May 2, 2011, and a disability rating in excess of 60 percent from May 3, 2011, for the residuals of asbestosis.  As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this claim.  Hence, the appeal of this issue is dismissed.


ORDER

The issue of entitlement to a disability rating in excess of 30 percent from January 25, 2008 to May 2, 2011, and a disability rating in excess of 60 percent from May 3, 2011, for the residuals of asbestosis, is dismissed.   







____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs