Citation Nr: 1318271	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  12-12 257	)	DATE
	)


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


THE ISSUES

1.  Entitlement to an evaluation in excess of 20 percent for diabetes mellitus, type II.

2.  Entitlement to an initial evaluation in excess of 50 percent for dysthymic disorder with anxiety disorder.

3.  Entitlement to a finding of total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	The American Legion



ATTORNEY FOR THE BOARD

W.H. Donnelly, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Army from July 1970 to January 1972, to include a tour of duty in Vietnam.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision by the Philadelphia, Pennsylvania, Regional Office (RO) of the United States Department of Veterans Affairs (VA).  The Board notes that because additional relevant evidence was received within one year of the prior decision, the June 2011 decision is in fact a reconsideration of a June 2010 decision granting service connection for a psychiatric disability.  38 C.F.R. § 3.156(b).


FINDING OF FACT

On May 29, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of his appeals with regard to all issues is requested.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of an appeal for an increased evaluation for type II diabetes mellitus 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 for an increased initial evaluation for dysthymic disorder with anxiety disorder have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

3.  The criteria for withdrawal of an appeal for TDIU 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 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.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  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 Veteran submitted an Appeal Status Election form to the RO indicating that in light of the recent decision in his case, his appeal was fully satisfied with regard to all issues.  The decision in question, a January 2013 Decision Review Officer (DRO) rating, granted service connection for bilateral lower extremity diabetic  neuropathy and erectile dysfunction, and granted entitlement to special monthly compensation base don loss of use of a creative organ.  The DRO noted that while these were not the specific issues on appeal, they were intertwined with the diabetes appeal.  

The Veteran has made clear that the DRO decision is sufficient to satisfy his appeal, even though the decision he references did not address the specific issues he appealed.  The Board notes that the Veteran had been scheduled for a hearing, to be held via videoconference from the RO, in May 2013 with regard to the perfected issues; he did not appear after notifying VA of his intent to withdraw the appeals, further indicating that his withdrawal applies to all pending issues.

The Veteran 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.


ORDER

The appeal for an evaluation in excess of 20 percent for type II diabetes mellitus is dismissed.

The appeal for an initial evaluation in excess of 50 percent for dysthymic disorder with anxiety disorder is dismissed.

The appeal for TDIU is dismissed.





		
BETHANY L. BUCK
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs