Citation Nr: 1330361	
Decision Date: 09/23/13    Archive Date: 09/30/13

DOCKET NO.  09-05 806	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Los Angeles, California


THE ISSUE

Entitlement to higher ratings following the award of service connection for posttraumatic stress disorder (PTSD), initially rated as 30 percent disabling prior to May 11, 2010; and as 70 percent disabling from May 11, 2010, forward.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant




ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran had active service from July 1967 to April 1971. 

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2007 rating decision in which the RO, inter alia, granted service connection for PTSD, and assigned an initial 30 percent rating, effective February 8, 2007; and denied service connection for bilateral hearing loss and tinnitus.  The Veteran filed a notice of disagreement (NOD) with the service connection denials in October 2007.  He filed a NOD with the assigned rating for PTSD in November 2007.  The RO issued a statement of the case (SOC) in February 2009.  The Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals ) in November 2009, and specifically indicated that he was only perfecting an appeal for PTSD.  Consequently, the bilateral hearing loss and tinnitus claims are not before the Board.

The Board has characterized the claim as one for a higher initial rating following the award of service connection (consistent with Fenderson v. West, 12 Vet. App. 119, 126 (1999).  Although the Veteran was awarded a 70 percent rating for the disability in question from May 11, 2010, as higher ratings are assignable before and after that date, and a veteran is presumed to seek the maximum rating for a disability, the appeal now encompasses the matter set forth on the title page.  Id.   See also AB v. Brown, 6 Vet. App. 35, 38 (1993). 

In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO.  In October 2012, the Board informed the Veteran that the June 2012 hearing transcript was unavailable, and that he could have another hearing if he so desired.  The Veteran elected to provide testimony during a Board video-conference hearing.  On September 9, 2013, a Board video-conference hearing was scheduled before the undersigned Veterans Law Judge, however, the Veteran left the premises before providing testimony. 

A September 2013 review of the Virtual VA paperless claims processing system reveals additional documents pertinent to the present appeal, to include a September 2013 rating decision in which the RO assigned a 70 percent rating for PTSD, as well as granted a total disability rating based on individual unemployability due to service-connected PTSD, each effective from May 11, 2010.


FINDING OF FACT

In September 2013, prior to the promulgation of a decision by the Board, the Veteran withdrew from appeal the matter of his entitlement to an initial rating in excess of 30 percent for PTSD prior to May 11, 2010; and to a rating in excess of 70 percent for the disability from May 11, 2010, forward.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal concerning the matter of higher ratings following award of service connection for PTSD prior to May 11, 2010; and from May 11, 2010, forward, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5)  (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

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.  A substantive 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 appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

As noted, at the time of the award of service connection for his PTSD, an initial 30 percent rating was assigned, from February 8, 2007.  The Veteran appealed the assigned rating.  In a September 2013 rating decision, the Veteran was awarded a 70 percent rating for his PTSD effective May 11, 2010.  In a signed statement from the Veteran, dated and received by VA in September 2013, he indicated that he had received the RO's recent decision awarding him a higher rating for his PTSD, and a TDIU, and requested a withdrawal of his appeal. 

Therefore, no allegations of errors of fact or law remain for appellate consideration with respect to the matter of higher ratings following the award of service connection for PTSD prior to May 11, 2010; and from May 11, 2010, forward.  Accordingly, the Board does not have jurisdiction to review the appeal with respect to the aforementioned claim and it must be dismissed.


ORDER

The appeal is dismissed.



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



Department of Veterans Affairs