Citation Nr: 1316719	
Decision Date: 05/22/13    Archive Date: 05/31/13

DOCKET NO.  09-46 713	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to an initial rating greater than 70 percent for service-connected posttraumatic stress disorder (PTSD).

2.  Entitlement to a total disability rating based upon individual unemployability (TDIU) for the time period prior to September 6, 2012.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Mainelli, Counsel 
INTRODUCTION

The Veteran served on active duty from September 1949 to October 1952.

This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.  

In a rating decision dated September 2008, the RO granted service connection for PTSD and assigned an initial 70 percent rating effective September 28, 2007.  The RO received additional evidence in November 2008, and the RO readjudicated the claim in March 2009.   The Veteran appealed the initial rating assigned.  38 C.F.R. § 3.156(b).  See Jennings v. Mansfield, 509 F.3d 1362 (Fed. Cir. 2007) (a claim becomes final and subject to a motion to reopen only after the appeal period has run; interim submissions before finality must be considered as part of the original claim).

Also, in the March 2009 rating decision, the RO denied a claim of entitlement to TDIU.  The Veteran appealed this decision.  

In a rating decision dated November 2012, the RO granted entitlement to TDIU effective September 6, 2012.  The RO informed the Veteran that the issue of entitlement to TDIU prior to September 6, 2012 was still deemed on appeal.  See AB v. Brown, 6 Vet. App. 35, 39 (1993) (an increased rating claim remains in appellate status when a full grant of the benefits sought is not awarded). 


FINDINGS OF FACT

On May 8, 2013, prior to the promulgation of a decision in the appeal, the Board received written notification from the appellant that he was withdrawing from appeal the claims for a higher initial rating for PTSD and entitlement to TDIU.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to an initial rating greater than 70 percent for service-connected PTSD have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to TDIU for the time period prior to September 6, 2012, 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 FINDINGS AND CONCLUSIONS

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.  

On May 8, 2013, prior to the promulgation of a decision in the appeal, the Board received written notification from the appellant that he was withdrawing from appeal the claims for a higher initial rating for PTSD and entitlement to TDIU.  Hence, there remain no allegations of errors of fact or law for appellate 






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consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.


ORDER

The appeal is dismissed.




		
K. OSBORNE
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs