Citation Nr: 1316358	
Decision Date: 05/17/13    Archive Date: 05/29/13

DOCKET NO.  10-05 056	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an increased rating for lumbar spondylosis with canal stenosis and nerve root compression evaluation, evaluated as 20 percent disabling prior to July 19, 2012, and 60 percent thereafter.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel


INTRODUCTION

The Veteran served on active duty from February 1964 to February 1966.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  

In an October 2012 rating decision, the RO increased the Veteran's service-connected lumbar spondylosis with canal stenosis and nerve root compression to 60 percent disabling, effective July 19, 2012.  Applicable law mandates that when a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded.  See AB v. Brown, 6 Vet. App. 35 (1993).  

In September 2011, the Veteran testified at a Travel Board hearing before a Veterans Law Judge ("VLJ") who is no longer employed at the Board.  A copy of the hearing transcript is of record.  

In November 2011, the Board remanded the claim for additional development.  The case has been returned to the Board for further appellate review.  

In November 2012 the Veteran was give the opportunity to request another Board hearing.  In December 2012 the Veteran requested a new Board hearing via video conference at his local RO.  As such, in January 2013 the Board remanded the claim for the Veteran to be afforded another Board hearing.  Pursuant to the Board's remand, the Veteran was scheduled for a Board hearing in May 2013 and was notified of this in a letter dated in April 2013.  Subsequently, in May 2013 the Veteran, via his representative, withdrew his request for a new hearing.  


FINDING OF FACT

In May 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant (or his or her authorized representative) have been 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

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the appellant, through his authorized representative, has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.


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ORDER

The appeal is dismissed.




		
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs