Citation Nr: 1619379	
Decision Date: 05/12/16    Archive Date: 05/19/16

DOCKET NO.  11-31 218	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for depressive disorder, not otherwise specified (NOS).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

C. D. Simpson, Counsel






INTRODUCTION

The Veteran had active duty service from November 1966 to January 1967.

This appeal to the Board of Veterans' Appeals (Board) arose from an April 2009 rating decision in which the RO granted service connection for depressive disorder, NOS, and assigned a 10 percent rating, effective April 24, 2008.  In addition, the claims for a total disability rating based upon individual unemployability (TDIU) and for service connection for COPD, hypertension, posttraumatic stress disorder (PTSD), a left shoulder nerve disorder, lumbar spine degenerative disc disease, neck degenerative joint disease, diabetes mellitus and rheumatoid arthritis were denied.  In November 2009, the Veteran filed a notice of disagreement (NOD).  A statement of the case (SOC) was issued in October 2011 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in November 2011. 

In February 2015, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge.  A hearing transcript has been associated with the record.  During the hearing, the Veteran withdrew from appeal all but one of the claims for which an appeal had been perfected. 

In April 2015, the Board dismissed the claim for a  TDIU, as well as  service connection claims for COPD, hypertension, PTSD, a left shoulder nerve disorder, lumbar spine degenerative disc disease, cervical spine degenerative joint disease, diabetes mellitus and rheumatoid arthritis.  At that time, the claim for  an initial rating in excess of 10 percent for depressive disorder, NOS was remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further action.  

In an October 2015 rating decision, the AMC assigned a higher  initial rating of 30 percent for depressive disorder, NOS, effective April 24, 2008.  

This appeal is now being  processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) claims processing system. The Veteran also has a separate paperless, electronic Virtual VA file. A review of the Virtual VA file does not reveal any additional documents pertinent to the present appeal.

As a final preliminary matter, the Board again notes, as noted in  April 2015, that the record reflects that the Veteran filed an Application for Compensation or Pension (VA Form 21-526) in December 1985 seeking service connection for the amputation of his right middle finger and for a partial amputation of his left thumb and that it does not appear that these claims have been adjudicated by the Agency of Original Jurisdiction (AOJ).  To date, the AOJ has not yet adjudicated these issues.  Therefore, the Board does not have jurisdiction over them, and they are again referred to the AOJ for appropriate action.


FINDING OF FACT

In October 2015, prior to the promulgation of an appellate decision, the Veteran, through his representative, withdrew from appeal the claim for an initial rating in excess of 30 percent for depressive disorder, NOS.


CONCLUSION OF LAW

The criteria for withdrawal of the appeal as to the claim for an initial rating in excess of 30 percent for depressive disorder, NOS, are met. 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

Under 38 U.S.C.A. § 7105 (West 2014), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A Substantive Appeal may be withdrawn in writing by the appellant or appointed representative at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204 (2015).  

As noted above, in a signed statement received in October 2015, the Veteran's representative indicated that the Veteran wished to withdraw from appeal the claim for a higher initial  rating  for depressive disorder, NOS..  He submitted contemporaneous correspondence from the Veteran indicating satisfaction with the newly assigned initial 30 percent  rating for that disability    Thus, no allegations of errors of fact or law remain for appellate consideration with respect to this matter.  Accordingly, the Board does not have jurisdiction to review the matter, and the appeal must be dismissed.


ORDER

The appeal as to the claim for an initial rating in excess of 30 percent for depressive disorder, NOS, is dismissed.



____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs