Citation Nr: 1536448	
Decision Date: 08/26/15    Archive Date: 09/04/15

DOCKET NO.  11-06 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for a low back disability.

2.  Entitlement to service connection for bilateral knee disability.




ATTORNEY FOR THE BOARD

M. Young, Counsel



INTRODUCTION

The Veteran served on active duty from August 1974 to August 1977.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In that rating decision, service connection was granted for posttraumatic stress disorder (PTSD) with a 30 percent initial rating, also for tinnitus with a 10 percent initial rating, and headaches with a 0 percent initial rating, all retroactively effective from April 11 2008 (date of claims).  Service connection however was denied for hearing loss, low back injury, and bilateral knee disability.  The Veteran filed a timely April 2009 Notice of Disagreement (NOD) with the 30 percent rating initially assigned for his PTSD.  See Fenderson v. West, 12 Vet. App. 119 (1999) (discussing an appeal of an initial rating).  He also began the process of appealing the denial of his claims for service connection for hearing loss, low back and bilateral knee disabilities.  But in an April 2011 rating decision since issued, the rating for his PTSD was increased from 30 to 50 percent retroactively effective from the date of claim, and service connection was granted additionally for his bilateral hearing loss, albeit with an initial 0 percent rating retroactively as of April 11, 2008.  Since he did not, in response, separately appeal the rating or effective date assigned for his bilateral hearing loss, that claim is no longer at issue.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and the effective date).  An even more recent April 2012 rating decision again increased the rating for his PTSD, this time however from 50 to 70 percent as of August 2011.  In July 2012 he was contacted by the RO via telephone and, during the course of the conversation, he indicated his satisfaction with the 70 percent rating (see July 17, 2012 Report of General Information).  Therefore, the appeal of the claim for an increased rating for his PTSD also will not be further considered by the Board.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is seeking the highest possible rating for a service-connected disability, so receipt of a higher rating, but less than the maximum possible rating, does not abrogate a pending appeal unless he indicates he is satisfied with the new rating).  Also notably, in a still more recent April 2015 rating decision, the RO additionally granted a total disability rating based on individual unemployability (TDIU) retroactively effective from August 22, 2013.  Hence, only the claims concerning service connection for low back and bilateral knee disabilities remain; and because he has withdrawn his appeal of these claims, the Board is summarily dismissing them.


FINDING OF FACT

In August 2015 correspondence, prior to the promulgation of a decision in this appeal, the Veteran indicated he is withdrawing his appeal on the issues of his entitlement to service connection for low back and bilateral knee disabilities.


CONCLUSION OF LAW

The criteria are met for withdrawal of the appeal of these claims.  38 U.S.C.A. § 7105(b)(2)(d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal that 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 appellant or by his authorized representative.  38 C.F.R. § 20.204.  


In the present case, in correspondence dated in August 2015, the Veteran withdrew this appeal for service connection for low back and bilateral knee disabilities.  Thus, there remain no allegations of errors of fact or law for appellate consideration regarding these claims.  Accordingly, the Board does not have jurisdiction to consider an appeal of these claims, and they are summarily dismissed.


ORDER

The appeal seeking service connection for low back and bilateral knee disabilities is dismissed.



____________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs