Citation Nr: 1415134	
Decision Date: 04/07/14    Archive Date: 04/15/14

DOCKET NO.  09-25 825	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada


THE ISSUE

Entitlement to an evaluation in excess of 10 percent prior to October 14, 2009, and thereafter in excess of 20 percent for his left ankle disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

J. Murray, Counsel 

INTRODUCTION

The Veteran served on active duty from December 1973 to December 1978 and from March 1986 to March 1990. 

These matters come on appeal to the Board of Veterans' Appeals (Board) from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, which in pertinent part, granted service connection for residuals of a left ankle injury at a 10 percent disability rating. 

In May 2010, the Veteran provided testimony during a Travel Board hearing before a Veterans Law Judge, who has since retired.  The transcript of the hearing has been associated with the claims file and reviewed.  

In October 2010, the Board found that a claim for entitlement to TDIU had been raised by the record and was part and parcel to the claim for increased rating on appeal.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The Board then remanded the issues of increased rating and TDIU to the RO (via the Appeals Management Center (AMC)) for initial consideration of the TDIU claim and additional development, to include a VA examination.  

In a July 2012 rating decision, the RO assigned a 20 percent evaluation for left ankle disability, effective from October 14, 200, and awarded entitlement to TDIU.  As higher schedular evaluations for the left ankle disability are possible, the issue, as reflected on the first page, remains on appeal.  See AB v. Brown, 6 Vet. App. 35 (1993).  However, as the Veteran has not expressed disagreement as to the effective date assigned for his TDIU, that matter is not before the Board.

In a September 2012 letter, the Veteran was advised of his opportunity to have an additional hearing pursuant to 38 C.F.R. § 19.3(b).  The Veteran responded that he did not desire another hearing.


FINDING OF FACT

In an October 2012 written statement, the Veteran expressed a desire to withdraw from appellate review the pending claim for entitlement to an increased rating for left ankle disability.


CONCLUSION OF LAW

The criteria for a withdrawal of the Veteran's substantive appeal on the issue of entitlement to an evaluation in excess of 10 percent prior to October 14, 2009, and thereafter in excess of 20 percent for his left ankle disability have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board notes the ability to 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 Veteran or by his authorized representative.  Id. 

The record reflects that the Veteran perfected timely appeal of the February 2008 rating decision that awarded an initial evaluation for left ankle disability, as well as the subsequent increased rating to a 20 percent, effective from October 14, 2009.  Thereafter, in an October 2012 written statement, the Veteran reported his desire to withdraw this claim from appellate review.  The Board finds that this statement qualifies as valid withdrawal of the issue.  See 38 C.F.R. § 20.204 (b).

In view of the foregoing, the Board concludes that further actions with regard to the issue are not appropriate.  The Board does not have jurisdiction over the withdrawn claim.  As such, the issue is dismissed.


ORDER

The appeal, concerning entitlement to increased evaluations for left ankle disability, is dismissed.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs