Citation Nr: 1312855	
Decision Date: 04/17/13    Archive Date: 05/02/13

DOCKET NO.  09-24 075	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to an increased rating greater than 20 percent for fracture of the distal third of the left femur with myositis ossificans.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel


INTRODUCTION

The Veteran served on active duty from May 1969 to April 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  The Veteran had a hearing before the Board in April 2012 and the transcript is of record.

The case was brought before the Board in August 2012, at which time this claim along with a claim seeking entitlement to service connection for a neck disability was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claims, to include affording him a VA examination. 

After development was complete, the RO, in a February 2013 rating decision, granted service connection for a neck disability, and granted an increased rating to 20 percent for fracture of the distal third of the left femur with myositis.  The Veteran was notified of this decision in March 2013.

After the Veteran has perfected his appeal, a subsequent rating 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 (1993).  Accordingly, the increased rating issue is still properly before the Board here and the issue has been appropriately rephrased above.  In contrast, the service connection claim has been fully substantiated and, therefore, is no longer before the Board here.  Cf. id.



FINDING OF FACT

In March 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 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, through his authorized representative, 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.


		
KATHLEEN K. GALLAGHER
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs