Citation Nr: 1603170 Decision Date: 02/01/16 Archive Date: 02/11/16 DOCKET NO. 10-33 387 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for asthma. 2. Entitlement to an initial rating in excess of 10 percent for hemorrhagic follicular cyst. REPRESENTATION Appellant represented by: Wounded Warrior Project WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran had active military service from February 2006 to July 2007. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional office (RO) in Atlanta, Georgia, which granted her claims of entitlement to service connection asthma and hemorrhagic follicular cyst, assigning initial noncompensable ratings effective October 31, 2008. That rating decision also denied her claims of entitlement to service connection for fibromyalgia, bipolar disorder and generalized anxiety disorder, a low back condition, bilateral leg/foot condition, residuals of a left elbow injury, headaches, a chest condition and an eye condition. During the pendency of this appeal, however, a June 2010 rating decision granted the claim for service connection for headaches and assigned an initial 0 percent rating retroactively effective from October 31, 2008. Subsequently, in a November 2013 Decision Review Officer (DRO) decision, the Veteran's claim for service connection for posttraumatic stress disorder (PTSD) due to Military Sexual Trauma (MST) (also claimed as anxiety and depression) was granted with an initial evaluation of 70 percent effective December 3, 2008. There is no indication the Veteran since has timely disagreed with these initial ratings and/or effective dates assigned for these now service-connected disabilities. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (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 effective date). Therefore, that is considered a full grant of the benefits sought on appeal, meaning those claims are no longer at issue. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). The Board further acknowledges that the June 2010 rating decision also increased the initial ratings for asthma and hemorrhagic follicular cyst from 0 percent to 10 percent effective October 31, 2008. Applicable law mandates that when a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). More recently, in July 2015, the Board denied her claims for service connection for fibromyalgia, a low back, a bilateral leg/foot condition, residuals of a left elbow and a chest condition, dismissed the claim for a left eye condition per the Veteran's request to withdraw this issues, but remanded the claims for increased initial ratings for asthma and hemorrhagic follicular cyst. FINDING OF FACT In a January 2016 written statement, the Veteran withdrew her claims for increased initial ratings for asthma and hemorrhagic follicular cyst. CONCLUSION OF LAW The criteria are met for withdrawal of the appeal of the claims entitlement to an initial rating in excess of 10 percent for asthma and entitlement to an initial rating in excess of 10 percent for hemorrhagic follicular cyst. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As already alluded to, the Veteran submitted a written statement in January 2016 withdrawing her claims for increased initial ratings for asthma and hemorrhagic follicular cyst. According to 38 C.F.R. § 20.204(b), a withdrawal of an appeal must be in writing, must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn, and must be received by the Board prior to issuance of a decision regarding the claim being withdrawn. The Veteran's statement is in writing, includes her name and claim number, and clearly expresses her intent to withdraw her appeal of this claim. Since the Board had not yet issued a decision concerning these claims, the criteria are met for withdrawal of the appeal of these claims. See id. When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed. Consequently, dismissal of the pending appeal with regards to these issues is the appropriate disposition. See 38 U.S.C.A. § 7105(d). Accordingly, no further action is warranted by the Board concerning these claims, and the appeal of these claims is dismissed. Id. ORDER Entitlement to an initial rating in excess of 10 percent for asthma is dismissed. Entitlement to an initial rating in excess of 10 percent for hemorrhagic follicular cyst is dismissed. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs