Citation Nr: 1314077	
Decision Date: 04/29/13    Archive Date: 05/15/13

DOCKET NO.  11-06 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to an initial compensable rating for residuals of a traumatic brain injury (TBI).  


REPRESENTATION

Appellant represented by:	Christopher Loiacono, Agent


ATTORNEY FOR THE BOARD

B. Thomas Knope, Counsel



INTRODUCTION

The Veteran served on active duty from April 1971 to February 1973.

This matter is on appeal from a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  

The Veteran was scheduled to testify before a Veterans Law Judge in July 2011, but requested that the hearing be cancelled.  Nevertheless, VA's duty to provide him with an opportunity to provide such testimony has been fulfilled.  38 C.F.R. § 20.700 (2012).  

In addition to the issue mentioned above, the Board notes that the Veteran submitted a January 2011 notice of disagreement to the rating decisions from March, October and November 2010.  Of note, these decisions denied entitlement to an increased rating for his service-connected left tibia, left knee, tinnitus, scars, hearing loss and to a total disability rating based on individual unemployability.  While these rating decisions did grant increased ratings for arthritis of the left knee, posttraumatic stress disorder (PTSD) and for a chip fracture to the left iliac crest, he was not granted the maximum ratings allowable and, as such, the issues were eligible to remain on appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993); Corchado v. Derwinski, 1 Vet. App. 160 (1991).  No statement of the case was ever sent to the Veteran in response to this notice of disagreement.  

However, in a March 2012 rating decision, the Veteran was granted a 100 percent disability rating for his service-connected PTSD.  In view of this rating decision, the Veteran submitted a letter January 2013, requesting that his notice of disagreement be withdrawn.  While the notice of disagreement could have served a basis for the Board to take jurisdiction over these claims, the Veteran's subsequent revocation of it precludes the Board taking any action on them.  Therefore, they are not addressed in this decision.  Cf. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).  



FINDING OF FACT

In February 2013, the Veteran submitted a statement requesting that his claim of entitlement to an initial compensable rating for residuals of a TBI be withdrawn.


CONCLUSION OF LAW

The criteria for withdrawal of the substantive appeal as to the issue of entitlement to an initial compensable rating for residuals of a TBI have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204 (2012).  When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. §§ 20.101, 20.202 (2012).

Here, in February 2013, the Veteran submitted a statement requesting that his claim for entitlement to an initial compensable rating for his service-connected TBI be withdrawn.  In view of the Veteran's expressed desire, the Board concludes that further action with regard to this claim is not appropriate. The Board no longer has jurisdiction over the withdrawn issue and, as such, must dismiss the appeal as to this claim.



ORDER

The issue of entitlement to an initial compensable rating for residuals of a TBI is dismissed without prejudice.  




____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs