Citation Nr: 1330052	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  07-30 351	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an increased initial rating for the service-connected status post gunshot wound (GSW) of the right foot with 2nd metatarsal and phalangeal fracture, rated as 20 percent disabling prior to December 9, 2004, and 30 percent thereafter.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

L.B. Cryan, Counsel





INTRODUCTION

The Veteran served on active duty from December 1976 to March 1977 and from March 2003 to November 2003.  

This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  In that decision, the RO granted service connection and assigned a 20 percent disability rating for the status post GSW of the right foot with 2nd metatarsal and phalangeal fracture.  By way of a May 2005 rating decision, the RO increased the disability rating to 30 percent disabling, effective from December 9, 2004.  

The Board additionally notes that in a July 2009 rating decision, the RO granted service connection for posttraumatic stress disorder, effective March 31, 2009, and assigned a 30 percent rating.  The Veterans Appeals Control and Locator System indicates that an appeal with respect to that decision was thereafter perfected and that a Board hearing was requested.  A May 2011 letter from the RO (on Virtual VA) informed the Veteran that he is on the list of persons wishing to appear before the Board and that he would be informed of his hearing date when one became available.  As this matter is currently awaiting assignment of a hearing date, there is no action for the Board to take on the matter at this time.  

It is also noted that in a September 2011 rating decision, the RO denied service connection for degenerative joint disease of the knees, entitlement to a total disability rating based on individual unemployability and continued the 30 percent rating for the service-connected right foot status post gunshot wound.  The Veteran thereafter filed a notice of disagreement.  The RO, by way of an October 2012 letter, acknowledged receipt of the notice of disagreement.  The letter informed him that the matters would be reviewed, that additional evidence might be requested, and, if the appeal was not granted, a Statement of the Case would be issued.  The Board notes that in Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (the Court) held that where a notice of disagreement (NOD) is filed but a SOC has not been issued, the Board must remand the claim to the agency of original jurisdiction so that a SOC may be issued. Here, however, a review of the Veteran's Virtual VA folder shows that the RO has acknowledged receipt of the Veteran's NOD and informed him of the steps that would be taken as a result of its filing. Accordingly, the facts of this case differ from those of Manlincon v. West, and as such, remand of this claim is not warranted.


FINDING OF FACT

In March 2012 and August 2013, prior to the promulgation of a decision in the appeal, the Veteran requested, in writing, to withdraw his appeal currently before the Board, which consists of entitlement to an increased initial rating for the service-connected status post gunshot wound (GSW) of the right foot with 2nd metatarsal and phalangeal fracture, rated as 20 percent disabling prior to December 9, 2004, and 30 percent thereafter.  



CONCLUSION OF LAW

The criteria for a withdrawal of the appellant's substantive appeal have been met; and as such, the Board does not currently have appellate jurisdiction to decide the issue of entitlement to an increased initial rating for the service-connected status post gunshot wound (GSW) of the right foot with 2nd metatarsal and phalangeal fracture, rated as 20 percent disabling prior to December 9, 2004, and 30 percent thereafter.  38 U.S.C.A. §§ 7105(a), 7108 (West 2002); 38 C.F.R. §§ 20.200, 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.  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.  

After the case was returned to the Board following the February 2011 remand, but before a decision was promulgated, the Board received written notice from the appellant in March 2012 requesting to withdraw his appeal.  The request was attached to a cover letter from the Veteran's representative wherein the representative reiterated the Veteran's desire to withdraw his appeal "on the issue of an increased evaluation for gunshot wound to the foot."

Another signed request to withdraw the appeal was received at the Board from the appellant's representative in August 2013.

In light of the foregoing, the appellant has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.


ORDER

The appeal is dismissed.


____________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs