Citation Nr: 1315712	
Decision Date: 05/13/13    Archive Date: 05/15/13

DOCKET NO.  09-11 739	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to an initial disability rating greater than 0 percent from August 2007 to October 2009, and greater than 30 percent from October 2009 to September 2012, and greater than 70 percent from September 2012 to the present, for depressive disorder with generalized anxiety state.

2.  Entitlement to an initial disability rating greater than 0 percent from August 2007 to September 2012, and greater than 30 percent from September 2012 to the present, for tension headaches. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel
INTRODUCTION

The Veteran served on active duty from April 1984 to July 2007.

This matter comes before the Board of Veterans' Appeals  (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, granted the Veteran's claims to service connect the two disabilities at issue.  In a November 2012 decision, the Board remanded these claims for further development, including the provisions of VA examinations.  Subsequently, the Appeals Management Center (AMC) issued a rating decision in January 2013, wherein the ratings for the Veteran's depressive disorder with generalized anxiety and tension headaches were increased to 70 percent and 30 percent, respectively. 

In a November 2011 statement, the Veteran withdrew his request for a hearing before a Veterans Law Judge.  See 38 C.F.R. §§  20.702(e), 20.704(e) (2012).

A review of the Virtual VA paperless claims processing system does not reveal additional records pertinent to this case.


FINDING OF FACT

In a March 7, 2013, written statement, which included the Veteran's name and claim number, the Veteran expressed his wish to withdraw his appeal before the Board.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran, through his representative, submitted a statement dated March 7, 2013, asking that his appeal for increased ratings for depressive disorder with generalized anxiety and for tension headaches be withdrawn.  The statement contained both his name and his claim number.

VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits.  See 38 C.F.R. § 20.204(b) (2012).  After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board.  See 38 C.F.R. § 20.204(b) (2012).  Appeal withdrawals must be in writing and must include the name of the veteran, the veteran's claim number, and a statement that the appeal is withdrawn.  Id.

As of March 8, 2013, the date of receipt of the Veteran's request, the Board had not yet issued a final decision on this case.  As noted above, the Veteran's request for a withdrawal is in writing, includes his name and claim number, and clearly expresses a desire to withdraw the appeal.  Therefore, the Veteran's withdrawal of the appeal is valid.  See id.

When pending appeals are withdrawn, there are no longer allegations of factual or legal error with respect to the issues that had been previously appealed.  In such an instance, dismissal of the pending appeal is appropriate.  See 38 U.S.C.A. § 7105(d) (West 2002).

Accordingly, further action by the Board on this issue is not appropriate and the appeal should be dismissed.  Id.





ORDER

The appeal of entitlement to an initial disability rating greater than 0 percent from August 2007 to October 2009, and greater than 30 percent from October 2009 to September 2012, and greater than 70 percent from September 2012 to the present, for depressive disorder with generalized anxiety state is dismissed.

The appeal of entitlement to an initial disability rating greater than 0 percent from August 2007 to September 2012, and greater than 30 percent from September 2012 to the present, for tension headaches is dismissed.



____________________________________________
KELLI A. KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs