Citation Nr: 1313932	
Decision Date: 04/26/13    Archive Date: 05/03/13

DOCKET NO.  10-44 130A	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an increased disability rating in excess of 10 percent for hypertension.


REPRESENTATION

Veteran represented by:	Christopher Lociacono, Esq.


ATTORNEY FOR THE BOARD

T. Blake, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1973 to December 1973.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which, in pertinent part, continued the noncompensable (0 percent) evaluation for hypertension, effective February 23, 2009.

In a September 2010 decision, a Decision Review Officer (DRO) increased the noncompensable evaluation for hypertension to 10 percent disabling, effective for the entire increased rating period on appeal from February 23, 2009.  The Veteran was advised of the September 2010 rating decision, but did not express agreement with the decision or withdraw the appeal.  In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court of Appeals for Veterans Claims (Court) held that, on a claim for an initial or increased rating, a veteran will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy, even if partially granted, where less than the maximum benefit available is awarded.  Because the assigned 10 percent disability rating is not the maximum benefit available for the service-connected hypertension, this appeal continues for the entire increased rating period.  

The Veteran submitted a November 2010 substantive appeal, via a VA Form 9, and requested a personal hearing before the Board at the RO.  A hearing was scheduled for August 2012, but the Veteran did not appear and did not provide any explanation for his absence.  Accordingly, his request for a hearing is considered withdrawn and the Board may proceed with review of the claim.  38 C.F.R. § 20.704(d) (2012).    

In a June 2012 rating decision, the RO granted a 100 percent disability rating for the service-connected generalized anxiety disorder and depressive disorder for the entire increased rating period from February 23, 2009.  This is considered a full grant of the benefits on appeal; therefore, the claim of entitlement to an increased disability rating in excess of 50 percent for generalized anxiety disorder and depressive disorder is no longer before the Board.  


FINDING OF FACT

In a March 2013 statement, prior to the promulgation of a decision in the appeal, the Veteran's representative indicated the Veteran's wish to withdraw from appellate status all pending claims before VA, which is the issue of an increased disability rating in excess of 10 percent for hypertension.


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the Veteran with regard to the issue of an increased disability rating in excess of 10 percent for hypertension have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200-20.202, 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, 20.204(b) (2012).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(c).

In a March 2013 statement, prior to the promulgation of a decision in the appeal, the Veteran's representative indicated the Veteran's wish to withdraw from appellate status all pending claims before VA.  Thus, the Board finds that the remaining pending claim on appeal before the Board is the issue of an increased disability rating in excess of 10 percent for hypertension.  As the Veteran has withdrawn his appeal as to the stated issue, there remains no allegation of errors of fact or law for appellate consideration (there is not dispute).  Accordingly, the Board does not have jurisdiction to review the appeal on the issue, and it is dismissed without prejudice.


ORDER

The appeal for an increased disability rating in excess of 10 percent for hypertension is dismissed.



____________________________________________
MARK W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs