Citation Nr: 1338752	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  12-24 846	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to an increased disability evaluation for headaches, currently rated as 50 percent disabling.

2.  Entitlement to a disability evaluation in excess of 10 percent for right ankle tibiotalar degenerative joint disease prior to January 9, 2013, and in excess of 20 percent from January 9, 2013.  


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

T. S. Kelly, Counsel


INTRODUCTION

The Veteran had active service from April 1993 to September 1996.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Lincoln, Nebraska, which continued the 50 percent disability evaluation for migraine headaches and the 10 percent disability evaluation for right ankle tibiotalar degenerative joint disease and denied the claim of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU).  

Thereafter, the Veteran perfected his appeal on these issues.  

In an April 2013 rating determination, the RO granted a TDIU.  This is the full benefit sought on appeal as it relates to this issue.  Therefore, the Board will no longer address this issue.  The RO also increased the Veteran's disability evaluation for his right ankle tibiotalar degenerative joint disease from 10 to 20 percent disabling effective January 9, 2013.  

As a result of the RO's actions, the Board has listed the issues as such on the title page of this decision.  


FINDING OF FACT

In a November 2013 statement in support of claim, the Veteran's representative indicated that the Veteran withdrew all appeals currently being considered by VA.  


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran as to the issues of an increased disability evaluation for headaches, currently rated as 50 percent disabling, and an evaluation in excess of 10 percent for right ankle tibiotalar degenerative joint disease prior to January 9, 2013 and in excess of 20 percent from January 9, 2013, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. § 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION


Withdrawal of Increased Rating Issues

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  An appeal may be withdrawn by a veteran or his representative in writing or in testimony at a hearing.  38 C.F.R. § 20.204.  In this case, the Veteran's representative, in a November 2013 statement in support of claim, indicated that the Veteran withdrew all appeals currently being considered by VA; hence, there remain no allegations of errors of fact or law for appellate consideration as it relates to the issues of an increased disability evaluation for headaches, rated as 50 percent disabling, and an evaluation in excess of 10 percent for right ankle tibiotalar degenerative joint disease prior to January 9, 2013 and in excess of 20 percent from January 9, 2013.  Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed without prejudice as it relates to these issues.




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ORDER

The appeal as it relates to the issues of an increased disability evaluation for headaches, rated as 50 percent disabling, and an evaluation in excess of 10 percent for right ankle tibiotalar degenerative joint disease prior to January 9, 2013 and in excess of 20 percent from January 9, 2013, is dismissed.




____________________________________________
K. J. Alibrando
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs