Citation Nr: 1331263	
Decision Date: 09/27/13    Archive Date: 10/01/13

DOCKET NO.  07-20 840A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to a disability rating in excess of 30 percent for dysthymic disorder.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. Haddock, Associate Counsel 


INTRODUCTION

The Veteran had active military service from February 1964 to December 1965.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

In connection with this appeal, the Veteran testified at a videoconference hearing before a Veterans Law Judge in July 2009 and accepted that hearing in place of an in-person hearing before a Veterans Law Judge.  A transcript of that hearing is associated with the claims file.  

The Veterans Law Judge who presided over the July 2009 hearing is no longer with the Board.  In a June 2013 letter, the Veteran was made aware of that fact and afforded the option to have a new hearing before a current member of the Board.  In a July 2013 response, the Veteran requested a new hearing before a current member of the Board.  However, in an August 2013 statement from the Veteran's representative, the Veteran's hearing request was withdrawn.  

The Board has reviewed the physical claims file and the Virtual VA electronic claims file.

This case was previously before the Board and in June 2010, the Board denied the issue of entitlement to an increased disability rating for dysthymic disorder.  The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court).  In an August 2012 memorandum decision, the Court vacated the Board's June 2010 decision and remanded the case to the Board for action consistent with the memorandum decision. 





FINDING OF FACT

In August 2013, prior to the promulgation of a decision in the appeal, the Veteran's representative submitted a written statement indicating the Veteran's desire to withdraw the issue on appeal.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been met.  38 U.S.C.A. §§ 7105(a), 7108 (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b)(c) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

An appeal consists of a timely filed notice of disagreement in writing, and after a statement of the case has been furnished, a timely filed substantive appeal.  38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2012).  The record shows that the Veteran filed a timely notice of disagreement to the denial of entitlement to an increased disability rating for dysthymic disorder.  In addition, he perfected his appeal with the submission of a timely substantive appeal following the issuance of the statement of the case.

A substantive appeal may be withdrawn in writing by an appellant or an appellant's authorized representative at any time before the Board promulgates a decision.  38 C.F.R. § 20.204(b) (2012).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  A review of the record shows that, in a written statement received in August 2013 from the Veteran's representative, the Board was notified that the Veteran wanted to withdraw his appeal with respect to the issue of entitlement to an increased disability rating for dysthymic disorder.  

Having met the requirements of 38 C.F.R. § 20.204, the Veteran has withdrawn his substantive appeal with respect to this issue.  Accordingly, the Board does not have jurisdiction to decide the appeal and it must be dismissed.

ORDER

The appeal on the issue of entitlement to a disability rating in excess of 30 percent for dysthymic disorder is dismissed.



____________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs