Citation Nr: 1310058	
Decision Date: 03/25/13    Archive Date: 04/02/13

DOCKET NO.  09-46 661	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office
in Nashville, Tennessee


THE ISSUE

Entitlement to higher ratings following the award of service connection for  posttraumatic stress disorder (PTSD) with anxiety disorder, not otherwise specified (NOS), initially rated as 30 percent disabling prior to February 17, 2012; and as 50 percent disabling from February 17, 2012, forward.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jeanne Schlegel, Counsel



INTRODUCTION

The Veteran had active service from July 1971 to July 1975.  

This appeal to the Board of Veterans' Appeals (Board) arose from an April 2008 rating decision in which the RO, inter alia, granted service connection for PTSD with anxiety disorder NOS, and assigned an initial 30 percent rating, effective October 26, 2005.  The Veteran filed a notice of disagreement (NOD) with the assigned rating in September 2008, and the RO issued a statement of the case (SOC) in October 2009.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in November 2009.  

In February 2012, the Board characterized the claim as one for a higher initial rating following the award of service connection (consistent with Fenderson v. West, 12 Vet. App. 119, 126 (1999), and remanded the matter for further action.  On remand, in a December 2012 decision, a higher, 50 percent rating was assigned from February 17, 2012.

Although the Veteran was awarded a 50 percent rating for the disability in question from February 17, 2012, as higher ratings are assignable before and after that date, and a veteran is presumed to seek the maximum rating for a disability, the appeal now encompasses the matter set forth on the title page.  Id.  See also AB v. Brown, 6 Vet. App. 35, 38 (1993).  
 

A March 2013 review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDING OF FACT

In January 2013, prior to the promulgation of a decision by the Board, the Veteran withdrew from appeal the matter of his entitlement to an initial rating excess of 30 percent for PTSD with anxiety disorder NOS, prior to February 17, 2012; and to a rating in excess of 50 percent for the disability from February 17, 2012, forward.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal concerning the matter of higher ratings following award of service connection for PTSD with anxiety disorder NOS, prior to February 17, 2012; and from February 17, 2012, forward, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 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.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  

As noted, the at the time of the award of service connection for his PTSD with anxiety disorder NOS, an initial 30 percent rating was assigned, from October 26, 2005.  The Veteran appeal the assigned rating, and the Board remanded the matter for further action.  On remand, in a December 2012 rating decision, the Veteran was awarded a 50 percent rating for his PTSD with anxiety disorder NOS, prior to February 17, 2012  In a signed statement from the Veteran dated and received by VA in January 2013, he indicated that he had received that recent decision, was satisfied with the decision rendered, and requested withdrawal of any pending appeals related to this issue.  

Therefore, no allegations of errors of fact or law remain for appellate consideration with respect to the matter of higher ratings following award of service connection for PTSD with anxiety disorder NOS, prior to February 17, 2012; and from February 17, 2012, forward.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to the aforementioned claim and it must be  dismissed.


ORDER

The appeal is dismissed.  



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs