Citation Nr: 1335320 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-27 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased evaluation for residuals of frostbite, right foot, currently rated at 20 percent disabling. 2. Entitlement to an increased evaluation for residuals of frostbite, left foot, currently evaluated at 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1977 to October 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2008 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the 10 percent evaluation for the issues on appeal. The RO in Montgomery, Alabama has since retained jurisdiction. The Veteran had requested a Board hearing in May 2011 and he was subsequently scheduled for a videoconference Board hearing. However, the Veteran requested cancellation of the hearing in conjunction with his appeal withdrawal request in September 2013. By way of a June 2013 Decision Review Officer (DRO) decision, the Veteran was afforded an increased evaluation of 20 percent for residuals of frostbite, right and left foot effective May 25, 2007. The Board notes that a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise. See AB v. Brown, 6 Vet. App. 35, 39 (1993) A review of the Virtual VA electronic claims file reveals documents that are either duplicative of the evidence of record or not pertinent to the present appeal. A review of the Veterans Benefits Management System (VBMS) reveals the complete June 2013 rating decision (narrative is not contained in the claimsfolder). FINDINGS OF FACT 1. On September 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal of the claim for an increased evaluation for residuals of frostbite, right foot, currently rated at 20 percent disabling was requested. 2. On September 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal of the claim for an increased evaluation for residuals of frostbite, left foot, currently rated at 20 percent disabling was requested. CONCLUSIONS OF LAW 1. The criteria for the withdrawal of the appeal by the Veteran have been met with respect to the claim for an increased evaluation for residuals of frostbite, right foot, currently rated at 20 percent disabling. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). 2. The criteria for the withdrawal of that appeal by the Veteran have been met with respect to the claim for an increased evaluation for residuals of frostbite, left foot, currently rated at 20 percent disabling. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2002). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran has clearly expressed his intent to withdraw his appeal by submitting a statement to VA in September 2013, through his authorized representative, expressing his desire to do so for both of the issues on appeal. The statement reads as follow:, "I the above veteran have been awarded an additional 20% for both contentions I had on appeal. This increase commensurates [sic] my condition as it is today. Therefore, I hereby request that my appeal . . . be cancelled [sic] based on the percentage(s) granted." The Board interprets the statements of the appellant as the 20 percent rating assigned has satisfied his appeal with regard to the issues relating to residuals of frostbite for both right and left feet. Consequently, the Board finds that the appellant, through his authorized representative, has withdrawn his appeal. Hence, there remain no allegations of errors of fact or law for appellate consideration at this time. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The appeal as to the claim for an increased evaluation for residuals of frostbite, right foot, currently rated at 20 percent disabling is dismissed. The appeal of the claim for an increased evaluation for residuals of frostbite, left foot, currently rated at 20 percent disabling is dismissed. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs