Citation Nr: 1333755	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  10-41 126	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an effective date earlier than September 18, 2008 for the award of a 40 percent disability evaluation for Type II diabetes mellitus with erectile dysfunction and carpal tunnel syndrome of the left upper extremity. 


REPRESENTATION

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


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

William J. Jefferson III, Counsel

INTRODUCTION

The Veteran served on active duty from June 1965 to June 1968. 

This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 RO decision that awarded a 40 percent disability evaluation for the Veteran's service-connected Type II diabetes mellitus, effective September 18, 2008. The Veteran disagreed with the June 2009 rating decision, and then he appealed his claim. 

The Veteran presented sworn testimony in support of his appeal during an October 2011 hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims folder. 


FINDING OF FACT

In a June 2013 signed statement, the Veteran indicated that he wished to withdraw his appeals, which would include his appeal of an effective date earlier than September 18, 2008 for the award of a 40 percent disability evaluation for Type II diabetes mellitus with erectile dysfunction and carpal tunnel syndrome of the left upper extremity; as of that date, the Board had not yet promulgated a final decision on the issue. 


CONCLUSION OF LAW

The Veteran's appeal regarding an effective date earlier than September 18, 2008 for the award of a 40 percent disability evaluation for Type II diabetes mellitus with erectile dysfunction and carpal tunnel syndrome of the left upper extremity has been withdrawn. 38 U.S.C.A. § 7105(d) (West 2002); 38 C.F.R. § 20.204 (2012). 

REASONS AND BASES FOR FINDING AND CONCLUSION

In a June 2013 statement, the Veteran indicated that based on the receipt of 100 percent disability benefits effective to August 25, 2010, awarded by the RO in a June 2013 rating decision he wished to withdraw his appeals, which included the appealed claim of an effective date earlier than September 18, 2008 for the award of a 40 percent disability evaluation for Type II diabetes mellitus with erectile dysfunction and carpal tunnel syndrome of the left upper extremity. He signed and dated the statement. 

An appellant, or his authorized representative, may withdraw an appeal to the Board by doing so in writing at any time before the Board issues its final decision. 38 C.F.R. § 20.204(b). When he or she does so, the withdrawal effectively creates a situation where there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, in such an instance, dismissal is appropriate. 38 U.S.C.A. § 7105(d). 

Because the Veteran has expressed a desire to terminate his appeal as to this claim and because the Board had not yet promulgated an appellate decision at the time of the request for withdrawal, the legal requirements for proper withdrawal have been satisfied. 38 C.F.R. § 20.204. Further action by the Board is not appropriate, and the 
appeal will be dismissed. 38 U.S.C.A. § 7105(d). 


ORDER

The appeal as to an effective date earlier than September 18, 2008 for the award of a 40 percent disability evaluation for Type II diabetes mellitus with erectile dysfunction and carpal tunnel syndrome of the left upper extremity, is dismissed.


____________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs