Citation Nr: 1318851	
Decision Date: 06/10/13    Archive Date: 06/21/13

DOCKET NO.  06-06 335	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an initial rating in excess of 10 percent prior to June 1, 2004, to May 2, 2010, and in excess of 40 percent from May 3, 2010, for limitation of extension of the left knee due to chondromalacia patella with degenerative joint disease (DJD).  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. Fussell, Counsel



INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from May 2000 to May 2004. 

This appeal to the Board of Veterans' Appeals (Board) arose from a January 2005 rating decision in which the RO, among other things, granted service connection and assigned an initial 10 percent rating for chondromalacia patella with DJD of the left knee, effective June 1, 2004.  The Veteran appealed the initial rating assigned. 

This case was previously remanded by the Board in December 2009 for further development, to include providing the Veteran with a VA examination. 

By a February 2011 rating decision, the RO increased the assigned rating for chondromalacia patella with DJD of the left knee from 10 to 40 percent, effective May 3, 2010.  As higher ratings are available before and after May 3, 2010, the appeal was deemed to continue.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  

The Board remanded the matter again in July 2011 for compliance with its previous December 2009 remand directives. 

Thereafter, in an April 2013 rating decision the RO granted service connection for limitation of flexion of the left knee due to chondromalacia patella with DJD and assigned a noncompensable rating from May 13, 2011.  The initial ratings previously assigned of 10 percent from June 1, 2004, to May 2, 2010, and in excess of 40 percent from May 3, 2010, for chondromalacia patella with DJD of the left knee, were as reclassified to be the ratings as described but for limitation of tension of the left knee due to chondromalacia patella with DJD.  



FINDINS OF FACT

In May 2013, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that a withdrawal of this appeal was requested.  


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal by the Veteran (or his representative) have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 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 Veteran, in a written statement received in May 2013, withdrew from appeal the claim for an initial rating in excess of 10 percent from June 1, 2004, to May 2, 2010, and in excess of 40 percent from May 3, 2010, for limitation of extension of the left knee due to chondromalacia patella with DJD.  This claim is the only matter on appeal.  Hence, there remains no allegation of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal, and it must be dismissed.  






ORDER

The appeal is dismissed.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs