Citation Nr: 1324236 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 06-00 369A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a rating higher than 30 percent for migraine headaches prior to September 28, 2011, and to a rating higher than 50 percent since. 2. Entitlement to a rating higher than 10 percent for vertigo prior to September 28, 2011, and to a rating higher than 30 percent since. 3. Entitlement to a rating higher than 10 percent for acne rosacea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her husband ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty in the military from January 1991 to January 1995, including a tour in the Southwest Asia Theater of Operations during the Persian Gulf War. This appeal to the Board of Veterans' Appeals (Board) is from a September 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in relevant part, confirmed and continued ratings then in effect for the Veteran's migraine headaches (at the time her headaches were rated as 10-percent disabling), vertigo (10 percent), and acne rosacea (0 percent). Additional RO decisions since issued in November 2005 and October 2009, during the pendency of her appeal, increased the rating for her migraine headaches from 10 to 30 percent and for her acne rosacea from 0 to 10 percent, with both rating increases retroactively effective from February 13, 2004, the date of receipt of these claims. She continued to appeal, requesting even higher ratings. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed she is seeking the highest possible ratings, absent express indication to the contrary). In June 2010, in support of her claims, she and her husband testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). The Board held the record open for 60 additional days following the hearing to allow her time to obtain and submit supporting evidence, which she later did in August 2010. Also in her June 2010 hearing testimony, and along with this additional batch of evidence she submitted in August 2010, the Veteran expressed her disagreement with the RO's October 2009 decision denying her additional claim for service connection for psoriasis involving her arms, legs, chest, and back. In response, the RO sent her a letter later in August 2010 indicating the VA Form 9 she had submitted concerning this claim along with this additional batch of evidence was premature and, therefore, being considered instead as a timely notice of disagreement (NOD) concerning this additional claim. The RO also indicated it would be providing her a statement of the case (SOC) in response to this NOD, which the RO later did in December 2010. She did not, however, in response to that SOC, then file a substantive appeal (another VA Form 9 or equivalent statement) within the next 60 days to complete the steps necessary to perfect her appeal of this additional claim to the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.304, 20.305, 20.306 (2012). So this claim for psoriasis is not currently before the Board. The claims for increased ratings for migraine headaches, vertigo, and acne rosacea were remanded to the RO via the Appeals Management Center (AMC) in August 2011 for further development and consideration. The AMC since has issued a decision in August 2012 increasing the rating for the vertigo from 10 to 30 percent as of September 28, 2011, the date of the VA compensation examination on remand reassessing the severity of this disability. And just as in the case of her migraine headaches and acne rosacea, which also have received higher ratings during the pendency of this appeal, she has continued to appeal for an even higher rating for her vertigo. See AB, 6 Vet. App. at 38-39. In November 2012 the Board again remanded the claims for increased ratings for the migraine headaches, vertigo, and acne rosacea to the RO via the AMC. As was also discussed in that November 2012 remand, the Veteran had pointed out during her June 2010 hearing before the Board that she had filed a still additional claim for service connection for tinnitus in September 2004 that was never adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). So she argued this claim was still pending and therefore needed to be decided. In addition she had submitted a statement in August 2012 attempting to reopen her claim for service connection for psoriasis of her arms, legs, chest, and back. Since, however, that claim had been previously considered, denied, and not appealed, there had to be new and material evidence since the prior decision to warrant reopening that claim and reconsidering it on its underlying merits - meaning on a de novo basis. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. So the Board referred these claims to the RO for all appropriate development and consideration. In a March 2013 rating decision since issued, the AMC granted a higher 50 percent rating for the migraine headaches, retroactively effective from September 28, 2011, the date of a VA examination reassessing the severity of this disability and revealing this level of impairment on account of it. The Veteran since has indicated her satisfaction with the most recent March 2013 rating decision granting this higher rating for her migraines, and resultantly has withdrawn all of her claims that remain on appeal. The Board also has preliminarily reviewed her electronic ("Virtual VA") file, which includes a July 2013 motion from her representative to withdraw this appeal. The Board therefore is dismissing this appeal. FINDING OF FACT Prior to the promulgation of a decision in this appeal, the Veteran indicated she is withdrawing her appeal for higher ratings for her migraine headaches, vertigo, and acne rosacea. CONCLUSION OF LAW The criteria are met for withdrawal of the appeal of these claims. 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 that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). A substantive appeal (VA Form 9 or equivalent statement) may be withdrawn on the record during a hearing and at any time before the Board promulgates a decision. See 38 C.F.R. §§ 20.202, 20.204 (2012). Withdrawal may be by the Veteran or her authorized representative. See 38 C.F.R. § 20.204. Here, in April 2013, the Veteran submitted an Appeal Satisfaction Notice in response to the March 2013 rating decision, in which she indicated that she was satisfied and wished to withdraw any remaining issues that had been remanded to the AMC by the Board. In July 2013, her representative filed a motion reaffirming the request to withdraw this appeal. It was asked that the Board dismiss the appeal and return the claims file to the RO as the AOJ. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to the claims concerning the ratings for the migraine headaches, vertigo, and acne rosacea. Accordingly, the Board does not have jurisdiction to review these claims, and they must be dismissed. ORDER This appeal is dismissed. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs