Citation Nr: 1315601	
Decision Date: 05/10/13    Archive Date: 05/15/13

DOCKET NO.  05-17 436	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an increased rating for posttraumatic stress disorder (PTSD) with depression, currently evaluated as 70 percent disabling.

2.  Entitlement to an increased rating for diabetes mellitus, type II, currently evaluated as 20 percent disabling.  


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESSES AT HEARING ON APPEAL

The Veteran and his wife



ATTORNEY FOR THE BOARD

S. Mishalanie, Counsel


INTRODUCTION

The Veteran served on active duty from November 1965 to September 1967. 

These matters initially came before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 

A Travel Board hearing was held in October 2008 before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.

In August 2010, the Board provided the Veteran with a rating of 50 percent for PTSD, effective July 7, 2007.  The Board additionally denied entitlement to an initial rating in excess of 30 percent for PTSD prior to July 7, 2007, and denied entitlement to a rating in excess of 20 percent for diabetes mellitus.  The Veteran appealed, and in a February 2012 decision, the Court of Appeals for Veterans Claims (Court) set aside the August 2010 decision and remanded the matters to the Board for further adjudication consistent with the Court's opinion.

In September 2012, the Board denied a rating in excess of 30 percent for PTSD from September 25, 2003 to February 12, 2007, granted a 50 percent rating for PTSD from February 13, 2007 to July 7, 2009, and remanded the question of what evaluation was warranted for PTSD from July 7, 2009.  The Board also remanded the claim for an increased rating for diabetes mellitus.  In a February 2013 rating decision, VA awarded a 70 percent evaluation for PTSD with depression from July 7, 2009.  



FINDING OF FACT

In April 2013, prior to the promulgation of a decision in the appeal, the Veteran's representative provided notice on the Veteran's behalf that he wished to withdraw his appeal of the claims for increased ratings for service-connected PTSD with depression and diabetes mellitus.  


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal for the issues of entitlement to increased ratings for service-connected PTSD with depression and diabetes mellitus have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 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 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2012).  The Veteran's representative, on the Veteran's behalf, has withdrawn this appeal as to the claims of entitlement to increased ratings for PTSD with depression and diabetes mellitus; hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues.  Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and the appeal is dismissed.

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ORDER

The appeal of the claim for an increased rating for PTSD with depression is dismissed.

The appeal of the claim for an increased rating for diabetes mellitus is dismissed.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs