Citation Nr: 1325845	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  12-21 103	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating higher than 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Kristi L. Gunn, Counsel



INTRODUCTION

The Veteran served on active duty from July 1964 to October 1972 and from January 1975 to September 1978.  Among other medals and commendations, he received the Combat Infantryman Badge (CIB).

He appealed to the Board of Veterans' Appeals (Board/BVA) from a January 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, granted his claim of entitlement to service connection for PTSD and assigned a 30 percent initial rating retroactively effective from January 30, 2009, the date of receipt of his claim.  He appealed for a higher initial rating for this disability.  See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (When a Veteran timely appeals an initial rating assigned for a disability upon the granting of service connection for the disability, VA adjudicators must consider whether to "stage" the rating, meaning assign different ratings at different times since the effective date of the award if there have been occasions when the disability has been more severe than at others).

In another decision since issued in April 2012, during the pendency of this appeal, a Decision Review Officer (DRO) at the RO increased the initial rating for the PTSD from 30 to 50 percent as of the same retroactive effective date - January 30, 2009.  The DRO also included the Veteran's depressive disorder in the rating for his PTSD since part and parcel of it.  It is presumed a Veteran is seeking the highest possible rating for a disability, absent express indication otherwise.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).  Here, though, as will be explained, the Veteran since has elected to withdraw his appeal for an even higher rating for his PTSD, perhaps owing to the fact that the rating for his bilateral hearing loss also was increased from 20 to 30 percent in an even more recent February 2013 rating decision and it was additionally determined he was entitled to a total disability rating based on individual unemployability (TDIU) and consequently eligible, as well, for Dependents' Educational Assistance (DEA).  So, by law, the Board is required to summarily dismiss his appeal of the claim for an even higher rating for his PTSD with depressive disorder.


FINDING OF FACT

On July 26, 2013, prior to promulgating a decision in this appeal, the Board received notification from the Veteran requesting withdrawal of this appeal.


CONCLUSION OF LAW

The criteria are met for withdrawal of this appeal.  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.  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.   

Here, the Veteran has withdrawn this appeal in two written statements received on July 26, 2013.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed.  



ORDER

The appeal is dismissed.  



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs