Citation Nr: 1329033	
Decision Date: 09/11/13    Archive Date: 09/17/13

DOCKET NO.  09-03 720	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction and hypertension. 

2.  Entitlement to a rating in excess of 30 percent a bilateral eye disability (diabetic retinopathy and macular edema and bilateral cataracts, left eye postoperative).  

3.  Entitlement to a compensable rating for diabetic ulcer, right foot.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Megan C. Kral, Associate Counsel  

INTRODUCTION

The appellant is a Veteran who served on active duty from September 1969 to August 1971.  This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO) which in pertinent part, granted service connection for diabetes mellitus with hypertension and erectile dysfunction rated 20 percent, effective June 29, 2006; for a diabetic ulcer of the right foot, rated 0 percent, effective June 29, 2007; and diabetic retinopathy, macular edema, and cataracts, rated 0 percent, effective June 29, 2007.  The Veteran filed a notice of disagreement as to the ratings assigned.  An interim (December 2008) rating decision increased the rating for the bilateral eye disability to 30 percent, also effective June 29, 2006.  


FINDINGS OF FACT

1.  On May 22, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran in writing that he intended to withdraw his appeal seeking a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction and hypertension; there is no question of fact or law remaining for the Board in this matter.  

2.  On August 26, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative, in writing, that the Veteran intended to withdraw all pending appeals, to include his appeals seeking a rating in excess of 30 percent for a bilateral eye disability, and a compensable rating for a diabetic ulcer of the right foot; there is no question of fact or law remaining for the Board in these matters.  





CONCLUSION OF LAW

Regarding the claims seeking increased ratings for diabetes mellitus with hypertension and erectile dysfunction; a bilateral eye disability; and diabetic ulcer of the right foot, the criteria for withdrawal of an appeal by the Veteran are met; the Board has no further jurisdiction in these matters.  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 FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claims.  However, given the Veteran's expression of intent to withdraw his appeals, further discussion of the impact of the VCAA on the matters is not necessary.

Legal Criteria, Factual Background, and Analysis

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.101.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the Veteran or by his authorized representative.  38 C.F.R. § 20.204.  A withdrawal of an appeal is effective when received.  38 C.F.R. § 20.204(b)(3).

In a statement received on May 22, 2013, the Veteran indicated that he was withdrawing his appeal seeking a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction and hypertension.  In a statement received on August 26, 2013, the Veteran's representative indicated that the Veteran intended to withdraw all pending claims, including seeking a rating in excess of 30 percent for a bilateral eye disability and a compensable rating for a diabetic ulcer of the right foot.  [The issues remaining in appellate status at the time of the August 26, 2013 letter.]  Hence, there is no allegation of error of fact or law for appellate consideration on these claims.  Accordingly, the Board does not have jurisdiction to consider an appeal in these matters, and the appeals must be dismissed.


ORDER

The appeals are dismissed. 


____________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs