Citation Nr: 1311219	
Decision Date: 04/04/13    Archive Date: 04/19/13

DOCKET NO.  08-30 329	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUES

Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

K. Marenna, Associate Counsel

INTRODUCTION

The appellant had active service from May 1968 to February 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, on brokerage for the RO in Manchester, New Hampshire, which granted service connection for PTSD with an evaluation of 30 percent, effective February 6, 2007.

In a December 2008 rating decision, the RO granted an increased evaluation of 70 percent for PTSD effective February 6, 2007.  A decision awarding a higher rating, but less than the maximum available benefit does not abrogate the pending appeal.  AB v. Brown, 6 Vet. App. 35, 38 (1993).  As the appellant's claim for a higher rating was not granted in full, it remained before the Board.

This case was previously before the Board in November 2011 when the Board granted entitlement to service connection for tinnitus and remanded the issues of entitlement to an initial rating in excess of 70 percent for PTSD and entitlement to service connection for bilateral sensorineural hearing loss for additional development.  An August 2012 rating decision granted service connection for bilateral hearing loss.  As the claims for service connection for tinnitus and hearing loss were granted in full, they are no longer before the Board.

In August 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record.

As noted in the November 2011 Board remand, the issue of entitlement to an effective date earlier than August 26, 2008 for the grant of a total disability rating based on unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.

FINDING OF FACT

In September 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of this appeal is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant 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 FINDING 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 has withdrawn this appeal and, hence, 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.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs