Citation Nr: 1332057	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  10-31 699	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to service connection for residuals of cold injury to the face.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

E. Pomeranz, Counsel 



INTRODUCTION

The Veteran had active military service from January 1951 to January 1954.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, denied his claim of entitlement to service connection for residuals of a cold injury to his face, and determined that new and material evidence had not been submitted to reopen his additional claims of entitlement to service connection for residuals of cold injury to his hands and feet, and for an eye disorder, including photophobia and dry eye due to cold injury and/or snow blindness.

In a January 2013 decision, the Board concluded that new and material evidence had been submitted to reopen the claims for service connection for residuals of cold injuries to the hands and feet, and for an eye disorder.  But rather than immediately readjudicating these claims on their underlying merits, the Board instead remanded them and the claim for service connection for residuals of cold injury to the face for further development.  The remand of these claims to the RO was via the Appeals Management Center (AMC).  Pursuant to the remand directive, the Veteran had VA compensation examinations in March and June 2013 to determine whether he had any residuals of cold weather injury (i.e., frostbite) that he had sustained during his military service.

In the March 2013 VA examination report, the examiner concluded the Veteran experienced symptoms in his hands and feet that were residuals of his cold weather injury in service.  Thus, in a May 2013 rating action, the AMC granted his claims of entitlement to service connection for residuals of cold injury to his hands and feet.  And because he has not since appealed either the 30 percent ratings or May 4, 2009 effective date assigned, these claims are no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).

In June 2013, he also had a VA eye examination.  The examiner diagnosed photophobia and similarly linked this disability to the cold weather injury in service.  Thus, in a July 2013 rating action, the AMC also granted service connection for an eye disorder, including photophobia and dry eye due to the cold injury and/or snow blindness.  The AMC also assigned a 30 percent initial rating for this additional disability, also retroactively effective from May 4, 2009.  And just as in the case of the cold weather injury and consequent disability affecting his hands and feet, so, too, has the Veteran not since appealed either that initial rating or effective date assigned for the consequent eye disability, so this claim also is no longer before the Board.  See Grantham, supra.

This resultantly only leaves the claim for residuals of cold injury to the face as still at issue.  But the Veteran has indicated he is withdrawing his appeal of this remaining claim, so the Board is summarily dismissing it.  38 C.F.R. § 20.204 (2013).

Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

In July 2013, prior to promulgation of a decision by the Board concerning this remaining claim, the Veteran withdrew his appeal of this remaining claim of entitlement to service connection for residuals of cold injury to his face.  



CONCLUSION OF LAW

The criteria are met for withdrawal of the substantive appeal concerning this remaining claim.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 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 that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal (VA Form 9 or equivalent statement) may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204 (2013).

As already discussed, in January 2013 the Board remanded this case.  At the time, there were several claims on appeal.  After the Veteran was afforded a VA compensation examination in March 2013, the AMC, in a May 2013 rating action, granted his claims for service connection for residuals of cold injuries to his hands and feet.  And the AMC's subsequent July 2013 rating action also granted service connection for his eye disability as an additional residual of the cold injury in service.

Also in July 2013, in response, he submitted an Appeals Satisfaction Notice that was signed and dated by him.  According to the Notice, by signing the document, he acknowledged receiving recent correspondence regarding the decision to grant one or more of his claims that were on appeal.  He also agreed that, based on the decision rendered, he was satisfied and wished to withdraw any remaining claims that had been remanded by the Board for further development.  In addition, he agreed that, by signing the form, he was asking to withdraw any remaining claim addressed in the recent Board remand order and asking that the RO/AMC discontinue further development actions.

Thus, the only remaining claim on appeal is the claim for service connection for the residuals of cold injury to his face.  Therefore, the Appeals Satisfaction Notice submitted by him is sufficient to withdraw his appeal of this sole remaining claim.  As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this claim.  Hence, the appeal of this remaining claim is dismissed.  


ORDER

The claim of entitlement to service connection for residuals of cold injury to the face is dismissed.



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



Department of Veterans Affairs