Citation Nr: 1312751 Decision Date: 04/17/13 Archive Date: 05/02/13 DOCKET NO. 12-05 536 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an initial rating in excess of 10 percent for sinusitis, to include entitlement to a separate rating in excess of 30 percent for sinus headaches, effective from December 16, 2011. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from June 2002 to May 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which in pertinent part granted service connection for sinusitis, with a noncompensable evaluation, effective October 30, 2009. In a December 2011 Decision Review Officer (DRO) decision, the evaluation for the service-connected sinusitis was increased to 10 percent, effective October 30, 2009. This decision was confirmed in the January 2012 supplemental statement of the case (SSOC). In an April 2012 rating decision, the Veteran was granted an increased rating of 30 percent for bilateral maxillary sinusitis with sinus headaches (formerly evaluated as sinusitis under Diagnostic Code 6522), effective December 16, 2011. In a June 2012 rating decision, the evaluation for the Veteran's service-connected sinusitis was reduced to 10 percent, effective October 30, 2009, based on a finding that a clear and unmistakable error was made in the April 26, 2012, rating decision, which assigned a 30 percent evaluation for sinusitis by combining the service-connected sinusitis with the Veteran's new claim for headaches, secondary to his sinusitis. In the same rating decision, service connection for sinus headaches was granted, and a 30 percent evaluation was assigned, effective December 16, 2011. In his February 2012 VA Form 9, the Veteran continued his appeal with regard to the issue of an increased rating for the service-connected sinusitis, and requested a hearing before a member of the Board. In a November 2012 statement, he clarified that he desired a Video Conference hearing. In a subsequent November 2012 statement, the Veteran also requested a Video Conference hearing with regard to a separate claim for service connection for constrictive bronchitis, although the record does not reflect that the RO has previously adjudicated a claim for service connection for constrictive bronchitis. The Veteran was subsequently scheduled for a Video Conference hearing with respect to the subject claim on appeal in March 2013, which he cancelled, instead deciding to withdraw his claim as addressed more fully below. In December 2010, the Veteran submitted a claim for service connection for constrictive bronchitis. The Veteran was issued a VCAA letter in response to this claim in March 2012. The record reflects that the RO has previously denied the issues of service connection for asthma and service connection for a lung condition (exposure to asbestos). However, the record does not reflect that the RO has ever adjudicated the issue of entitlement to service connection for constrictive bronchitis. Accordingly, it is referred back to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDING OF FACT In an April 2013 statement, received prior to the promulgation of a decision in the appeal, the Veteran's representative indicated that the Veteran wished to withdraw his appeal with regard to the issue of an increased rating for sinusitis, to include entitlement to a separate rating in excess of 30 percent for sinus headaches, effective from December 16, 2011. 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. An appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b) (2012). In an April 2013 statement, the Veteran's representative reported that the Veteran wished to withdraw his appeal with regard to the issue for which he had requested the Video Conference hearing scheduled for March 27, 2013. She also noted that it was the January 5, 2012 decision that was being appealed. See April 2013 statement submitted by the Veteran's representative. Accordingly, the Board finds that based on the evidence noted above, the Veteran has requested to withdraw his claim for an increased rating for sinusitis, to include entitlement to a separate rating in excess of 30 percent for sinus headaches, effective from December 16, 2011. The Board finds that the April 2013 written statement from the Veteran's representative qualifies as a valid withdrawal of the issue under 38 C.F.R. § 20.204. 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 without prejudice as it relates to this issue. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.204. ORDER The appeal is dismissed. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs