Citation Nr: 1330555 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-41 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a disability rating higher than 10 percent for status post subluxation syndrome of the right shoulder. 2. Entitlement to a disability rating higher than 10 percent for status post stress fracture of the proximal right tibia. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran had active military service from April 1987 to April 1988. He appealed to the Board of Veterans' Appeals (Board/BVA) from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which confirmed and continued the 0 percent (i.e., noncompensable) ratings he had at the time for these two service-connected disabilities. In another rating decision since issued in February 2013, however, during the pendency of this appeal, the RO increased the ratings for these two service-connected disabilities from 0 to 10 percent retroactively effective from November 6, 2008, the date of receipt of the claims for higher ratings for these disabilities. The question then became whether the Veteran was entitled to even higher ratings for these disabilities. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (when a Veteran is not granted the highest allowable evaluation under the VA Schedule for Rating Disabilities, the pending appeal is not abrogated). The Veteran was scheduled to testify at a hearing at the RO in July 2013 before a Veterans Law Judge of the Board (Travel Board hearing). But the Veteran did not appear for the hearing, so was marked a "no show", and he has not since asked to reschedule his hearing or provided good-cause explanation for his failure to report for the hearing that was scheduled. Thus, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2013). He since has indicated through his representative, however, that he is withdrawing his appeal of these claims, so the Board must summarily dismiss his appeal. FINDING OF FACT In a recent statement dated August 27, 2013, which contained the Veteran's name and claim number and which was received prior to the promulgation of a decision in this appeal by the Board, the Veteran indicated through his representative that he is withdrawing his appeal for even higher disability ratings for his status post subluxation syndrome of the right shoulder and status post stress fracture of the proximal right tibia. CONCLUSION OF LAW The criteria are met for withdrawal of his Substantive Appeal concerning these claims. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Pursuant to 38 C.F.R. § 20.204(b), a withdrawal of an appeal must be in writing, must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn, and must be received by the Board prior to issuance of a decision regarding the claim being withdrawn. The statement from the Veteran's representative, dated August 27, 2013, lists the Veteran's name and claim number and clearly expresses his intent on withdrawing his appeal of these claims. And since the Board had not yet issued a decision concerning these claims, the criteria are met for withdrawal of the appeal of these claims. See id. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal is the appropriate disposition. 38 U.S.C.A. § 7105(d). Accordingly, further action by the Board concerning these claims of entitlement to even higher disability ratings for status post subluxation syndrome of the right shoulder and status post stress fracture of the proximal right tibia is unwarranted, and the appeal of these claims is dismissed. Id. ORDER The claim of entitlement to a disability rating higher than 10 percent for status post subluxation syndrome of the right shoulder is dismissed. The claim of entitlement to a disability rating higher than 10 percent for status post stress fracture of the proximal right tibia also is dismissed. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs