Citation Nr: 1419115	
Decision Date: 04/30/14    Archive Date: 05/06/14

DOCKET NO.  08-22 851	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana


THE ISSUE

Entitlement to an increased rating for left knee chondromalacia patella, rated as 10 percent prior to November 10, 2009, and from January 1, 2010, to November 4, 2011 (with a separate rating of 10 percent rating for left knee laxity/instability from July 21, 2009, to November 4, 2011), and 30 percent from January 1, 2013, status post left knee total knee replacement.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

J.B. Freeman, Counsel


INTRODUCTION

The Veteran served on active duty from July 1978 to July 1981.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the RO in Seattle, Washington.  Jurisdiction was subsequently transferred to the RO in Fort Harrison, Montana.

During the pendency of the appeal, in December 2009, the RO assigned a temporary evaluation of 100 percent effective November 10, 2009 for the Veteran's left knee disability on the basis of surgical treatment necessitating convalescence.  A 10 percent rating was reassigned from January 1, 2010.  A separate compensable rating of 10 percent was granted for laxity/instability of the left knee associated with the chondromalacia patella by an April 2011 rating decision.  A September 2012 rating decision awarded a temporary total rating due to a total knee replacement effective November 4, 2011, and a 30 percent rating effective January 1, 2013.  The Board has adjusted its consideration of the Veteran's claim accordingly.

The Veteran testified before the undersigned at an August 2009 hearing at the RO.  A transcript has been associated with the file.  The Board remanded this case in February 2010.  



FINDINGS OF FACT

1.  On August 30, 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's representative that the Veteran wanted to withdraw his appeal seeking an increased rating for his left knee chondromalacia patella.

2.  The November 2013 informal hearing presentation is not a timely Notice of Disagreement or a timely Substantive Appeal.


CONCLUSION OF LAW

The criteria for withdrawal of a Substantive Appeal seeking an increased rating for left knee chondromalacia patella have been met.  38 U.S.C.A. § 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 20.204, 20.302 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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.  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.  Withdrawal may be made by the Veteran or by his or her authorized representative.  38 C.F.R. § 20.204.

On August 30, 2012, the Board received a written, signed statement from the Veteran's representative indicating that the Veteran withdrew his appeal for an increased rating for his left knee disability.  As of August 30, 2012, the Board had not yet issued a final decision on this case.  

The Veteran's representative submitted a November 2013 informal hearing presentation arguing the merits of this appeal.  A withdrawal of an appeal may be disregarded if the Veteran or his representative files a new Notice of Disagreement or, if filed, a new Substantive Appeal, provided that the new Notice of Disagreement or Substantive Appeal is timely.  38 C.F.R. § 20.204(c).  In this case, the November 2013 informal hearing presentation was received more than one year after notice of the January 2008 rating decision previously on appeal and the notices of the December 2009, April 2011, and September 2012 rating decisions assigning increased, but less than total, ratings.  The November 2013 informal hearing presentation may not be taken as a new, timely Notice of Disagreement.  See 38 C.F.R. § 20.302(a).  The November 2013 informal hearing presentation was also not a timely Substantive Appeal as to the July 2008 Statement of the Case or April 2011 Supplemental Statement of the Case.  See 38 C.F.R. § 20.302(b).  

In light of the foregoing, the Board concludes that the August 2012 withdrawal of the Veteran's appeal is valid.  See 38 C.F.R. § 20.204(b); see also Hanson v. Brown, 9 Vet. App. 29 (1996) (a claim ceases to exist when withdrawn).  Consequently, dismissal of the appeal is appropriate.  See 38 U.S.C.A. § 7105(d).


ORDER

The appeal seeking an increased rating for left knee chondromalacia patella, rated as 10 percent prior to November 10, 2009, and from January 1, 2010, to November 4, 2011 (with a separate rating of 10 percent rating for left knee laxity/instability from July 21, 2009, to November 4, 2011), and 30 percent from January 1, 2013, status post left knee total knee replacement, is dismissed.



____________________________________________
Sonnet Gorham
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs