Citation Nr: 1331375	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  08-15 272	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to a rating higher than 30 percent prior to December 26, 2007, higher than 60 percent before December 10, 2008, and higher than 70 percent since December 10, 2008, for left eye traumatic chronic iridoplegia with mydriasis and anterior ischemic optic neuropathy.

2.  Entitlement to a compensable rating for recurrent left eye pterygium, status post surgery.


ATTORNEY FOR THE BOARD

C. Kedem, Counsel

INTRODUCTION

The Veteran served on active duty from September 1950 to June 1972.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

During the pendency of this appeal, as concerning the left eye traumatic chronic iridoplegia with mydriasis and anterior ischemic optic neuropathy, the RO assigned a higher 60 percent rating effective December 26, 2007, and an even greater 70 percent rating as of December 10, 2008 (so both representing increases in the prior 30 percent rating for this disability).  Those increases did not, however, abrogate the appeal of this claim.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

The Veteran since, however, has indicated he is withdrawing his appeal of both claims, so not only this one concerning the ratings for his left eye traumatic chronic iridoplegia with mydriasis and anterior ischemic optic neuropathy, but also for a higher (i.e., compensable) rating for his recurrent left eye pterygium, status post surgery.  The Board therefore is dismissing his appeal of these claims.  See 38 C.F.R. § 20.204 (2013).

The additional issue of whether there is new and material evidence to reopen a claim for service connection for residuals of chicken pox, including shingles (herpes zoster), has been raised by the record.  See the Veteran's recent written statement dated in July 2013.  This additional claim, however, has not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it so is referring it to the RO for appropriate development and consideration.

Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDING OF FACT

In a written communication to the RO dated in July 2013 and received in August 2013, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal for higher ratings for his left eye traumatic chronic iridoplegia with mydriasis and anterior ischemic optic neuropathy and concerning his recurrent left eye pterygium, status-post surgery.


CONCLUSION OF LAW

The criteria are met for withdrawal of the substantive appeal concerning these claims.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

According to 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 

A substantive appeal (VA Form 9 or equivalent) 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, except that a representative may not withdraw a substantive appeal filed by the appellant personally without the express written consent of the appellant.  38 C.F.R. § 20.204.

In August 2013, the Veteran withdrew his appeal of these increased-rating claims, so there remain no allegations of error of fact or law for appellate consideration.  In essence, a "case or controversy" involving a pending adverse determination that he has taken exception to no longer exist.  See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)).  Accordingly, the Board is without jurisdiction to review the appeal of these claims, in turn requiring their dismissal without prejudice.


ORDER

These claims are summarily dismissed.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs