Citation Nr: 1312898	
Decision Date: 04/18/13    Archive Date: 05/02/13

DOCKET NO.  11-17 283	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an increased rating for hypertrophic change, left hip, currently evaluated as 20 percent disabling.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


ATTORNEY FOR THE BOARD

F. Yankey, Counsel



INTRODUCTION

The Veteran served on active duty from March 1983 to March 1987.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which continued the 10 percent rating for the service-connected hypertrophic change, left hip.  

In a July 1990 rating decision, the RO granted service connection for hypertrophic change, left hip.  A noncompensable evaluation was assigned, effective February 22, 1990.  In a September 2003 rating decision, the RO increased the rating for the service-connected hypertrophic change, left hip to 10 percent, effective March 5, 2003.  Most recently, in a November 2012 rating decision, the RO granted an increased 20 percent rating for hypertrophic change, left hip, effective January 28, 2009, based on limitation of flexion.  A separate 10 percent rating, based on limitation of adduction and rotation of the thigh was assigned, effective January 28, 2009.  This rating was increased to 20 percent, effective November 14, 2012.  Additionally, a separate 10 percent rating based on limitation of extension was assigned, effective November 14, 2012.

A Veteran is presumed to be seeking the maximum rating permitted by law, but may limit his appeal to a lesser benefit.  AB v. Brown, 6 Vet. App. 35, 39 (1993); Hamilton v. Brown, 4 Vet. App. 528, 544 (1993).  As the Veteran has withdrawn his appeal, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this appeal.  38 C.F.R. § 20.204 (2012).

As discussed further below, in February 2013, the Veteran cancelled his Board hearing, scheduled for March 2013.  He has not requested that the hearing be rescheduled.  Therefore, his request for a hearing is considered withdrawn.  See C.F.R. §20.702(d) (2012).


FINDING OF FACT

In a February 2013 statement, received prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal.  The Board notes that the only issue remaining on appeal at that time was entitlement to an increased rating for the service-connected hypertrophic change, left hip.


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 a February 2013 statement, the Veteran indicated that he wished to withdraw his appeal for entitlement to service connection for hypertrophic change, left hip.  Specifically, he stated that, as he had received a letter dated December 10, 2012, advising him that his appeal had been granted, he wished to "drop" his appeal and cancel the Video Conference hearing scheduled in March 2013.  See February 2013 statement submitted by the Veteran.  The Board notes that the December 10, 2012 letter the Veteran referred to was submitted in conjunction with the November 2011 supplemental statement of the case issued in response to the Veteran's claim for an increased rating for hypertrophic change, left hip.


The Board finds that the February 2013 written statement from the Veteran 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.



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs