Citation Nr: 1318472 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 10-28 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Hartford Regional Office in Newington, Connecticut THE ISSUE Entitlement to an initial disability rating in excess of 50 percent for posttraumatic stress disorder (PTSD) for the period from July 18, 2005, to October 10, 2006. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to April 1969. This case came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 Decision Review Officer decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico, which, in pertinent part, assigned an initial 10 percent rating for PTSD from the effective date of service connection, July 18, 2005. In April 2009, the Veteran testified at a videoconference hearing before one of the undersigned Veterans Law Judges. A transcript of the proceeding is of record. In June 2009, the Board remanded the issue of entitlement to an increased initial disability rating for PTSD for additional development. While the case was in remand status, the RO issued an October 2009 rating decision, which increased the rating for the Veteran's PTSD to 50 percent, effective September 20, 2007. In a May 2010 rating decision, the RO granted an earlier effective date of October 11, 2006, for the 50 percent rating. In an October 2010 Decision Review Officer decision, the Hartford RO in Newington, Connecticut granted entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective February 20, 2008. The Veteran appealed this rating decision, asserting that an earlier effective date for the TDIU is warranted. In July 2011, the Veteran testified at a videoconference hearing before one of the undersigned Veterans Law Judges. A transcript of that proceeding is also of record. In January 2012 the Board granted a 50 percent rating for the Veteran's PTSD for the initial rating period prior to October 11, 2006. At that time, the Board also remanded the issue of entitlement to TDIU for the period of the claim prior to February 20, 2008. While the case was in remand status, the issue of entitlement to a TDIU for the period of the claim prior to February 20, 2008, was resolved by a January 2012 rating decision granting a TDIU, effective July 18, 2005, the effective date of service connection for the Veteran's PTSD. The Veteran appealed the Board's January 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In July 2012 the Court granted a joint motion of the parties and remanded the issue of entitlement to a rating in excess of 50 percent for PTSD during the period from July 18, 2005, to October 10, 2006, to the Board. As noted above, the Veteran testified at two separate hearings before two different Veterans Law Judges, both of which are deciding this case. Accordingly, this appeal must now be addressed by a panel, which includes the Veterans Law Judges who presided at the hearings. See 38 C.F.R. § 20.707. In that regard, the Board acknowledges that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See, Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). The Veteran was contacted and presented the opportunity to have a hearing before a third Veterans Law Judge. In March 2013 the Veteran explicitly waived his right in writing to have a hearing before the third member of the panel addressing the appeal. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT In November 2010, prior to the promulgation of a decision in the appeal, the Veteran, through his representative, withdrew the appeal for entitlement to an initial disability rating in excess of 50 percent for PTSD for the period from July 18, 2005, to October 10, 2006. CONCLUSION OF LAW The appeal for entitlement to an initial disability rating in excess of 50 percent for PTSD for the period from July 18, 2005, to October 10, 2006, has been withdrawn. 38 U.S.C.A. § 7105 (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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. The withdrawal may be made by the appellant or by his authorized representative. Except for appeals withdrawn on the record at hearings, the withdrawal must be in writing. 38 C.F.R. § 20.204. The withdrawal of an appeal does not preclude the filing of a new Notice of Disagreement or new Substantive Appeal, provided that such filings would be timely. 38 C.F.R. § 20.204(c) (2012). A Substantive Appeal must be filed within 60 days from the date of the mailing of the Statement of the Case or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (2012). In this case, the Veteran submitted a timely Notice of Disagreement with the April 2007 Decision Review Officer decision, which assigned an initial 10 percent rating for PTSD, effective July 18, 2005. A Statement of the Case was sent to the Veteran in April 2008. The Veteran perfected his appeal with the submission of a Substantive Appeal in May 2008. As noted above, the originating agency ultimately increased the rating for the Veteran's PTSD to 50 percent, effective October 11, 2006. Thereafter, the Veteran's representative submitted a statement in November 2010, indicating that the, "Veteran is satisfied with the 50 percent evaluation of post traumatic stress disorder." The November 2010 written statement from the Veteran's representative constitutes a valid withdrawal of the Veteran's appeal for an initial rating in excess of 50 percent for PTSD. This statement was submitted more than 60 days after the issuance of the Statement of the Case on the PTSD issue and more than one year after notice of the rating decision at issue. Therefore, no later submission from the Veteran or his representative can be accepted as a timely Substantive Appeal. Moreover, at the videoconference hearing before the Board in July 2011, the Veteran confirmed with respect to the PTSD issue that he was only seeking a 50 percent rating for the period of the claim prior to October 11, 2006. Therefore, there remains no allegation of error of fact or law for the Board to to address. Accordingly, the Board does not have jurisdiction to review the appeal with respect to this issue and the appeal must be dismissed. ORDER The appeal for entitlement to an initial disability rating in excess of 50 percent for PTSD, for the period from July 18, 2005, to October 10, 2006, is dismissed. Dennis F. Chiappetta C. Trueba Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs