Citation Nr: 1314570	
Decision Date: 05/02/13    Archive Date: 05/15/13

DOCKET NO.  00-14 005	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Buffalo, New York


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for arthritis of the right hip. 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

Donna D. Ebaugh, Associate Counsel



INTRODUCTION

The Veteran served on active duty from December 1966 to October 1968.

This appeal to the Board of Veterans' Appeals (Board) arose from a November 2000 rating decision in which the RO, inter alia, granted service connection for arthritis of the right hip, and assigned an initial 10 percent rating, effective October 20, 1999.  In January 2001, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in May 2001, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2001.  

Because the appeal involves disagreement with the initial rating assigned following the grant of service connection for arthritis of the right hip, the Board has characterized this matter in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for already service-connected disability).

In December 2004, the Board remanded the claim on appeal to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further action, to include additional development of the evidence.  After accomplishing the requested action, the AMC continued to deny the claim (as reflected in a June 2006 supplemental SOC (SSOC)) and returned the matter to the Board for further appellate consideration.

In March 2009, the Board denied the Veteran's claim for an initial rating in excess of 10 percent for arthritis of the right hip.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2010, counsel for the Veteran and the VA Secretary filed a Joint Motion with the Court to partially vacate and remand the March 2009 decision regarding the claim currently on appeal for the Board to address the Veteran's right hip replacement surgery in February 2006, and its effect on the Veteran's increased rating claim.  By Order dated March 2010, the Court granted the Joint Motion, vacating the March 2009 Board decision and remanding this matter to the Board for further proceedings consistent with the Joint Motion.

In December 2010, the Board remanded the Veteran's claim again to the RO, via the AMC in Washington, DC, for further action, to include additional development of the evidence.  After completing the requested development, the AMC continued to deny the claim (as reflected in an April 2012 SSOC) and returned the matter on appeal to the Board for further consideration. 

In August 2012, the Board remanded the Veteran's claim again to the RO, via the AMC in Washington, DC, for further action, to include additional development of the evidence.  After completing the requested development, the AMC continued to deny the claim (as reflected in a February 2013 SSOC) and returned the matter on appeal to the Board for further consideration.  As discussed below, in April 2013, the Veteran requested that his appeal be withdrawn.  

As a final preliminary matter, the Board notes that the issue of entitlement to special monthly compensation (SMC), pursuant to 38 U.S.C.A. § 1114(s), was raised by the Veteran's representative in the April 2013 Informal Hearing Presentation.  As this matter has not been adjudicated by the agency of original jurisdiction (here, the RO), it is not properly before the Board.  Therefore, this matter is referred to the RO for appropriate action.  


FINDING OF FACT

In April 2013, prior to the promulgation of a decision in the appeal, the Veteran, through his representative withdrew from appeal the claim of entitlement to an initial rating in excess of 10 percent for arthritis of the right hip.



CONCLUSION OF LAW

The criteria for withdrawal of the appeal as to the claim of entitlement to an initial rating in excess of 10 percent for arthritis of the right hip are 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

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. § 20.204.  

As noted above, via an April 2013 Informal Hearing Presentation written and signed by the Veteran's representative, the Veteran indicated that he wished to withdraw from appeal the claim of entitlement to an initial rating in excess of 10 percent for arthritis of the right hip.  Thus, no allegations of errors of fact or law remain for appellate consideration with respect to this matter.  Accordingly, the Board does not have jurisdiction to review this matter, and it must be dismissed.


ORDER

The appeal is dismissed.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs