Citation Nr: 1742235	
Decision Date: 09/26/17    Archive Date: 10/04/17

DOCKET NO.  13-36 219	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus, type II.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Harper, Associate Counsel





INTRODUCTION

The Veteran served on active duty from April 1969 to December 1970 in the United States Army.  

This matter comes on appeal before the Board of Veterans' Appeals (Board) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  The Veteran was notified of this rating decision in January 2010.  

The Board notes that the Veteran was previously represented by the California Department of Veterans Affairs; however, the Veteran revoked this previous appointment and appointed Disabled American Veterans as his representative in a June 2016 Form 21-22.  Disabled American Veterans are currently his representative of record.  

The Veteran requested both a Travel Board hearing and videoconference hearing in his December 2013 substantive appeal, via a VA Form 9.  Subsequently, the Veteran sent in a request for a Travel Board hearing only in January 2014.  By letter dated June 2016, the Veteran's representative amended the Veteran's request for hearing from a Travel Board hearing to a Board hearing by videoconference.  The Veteran was scheduled for a December 2016 videoconference hearing, but the hearing was cancelled by the Veteran.


FINDING OF FACT

In December 2016, the Veteran, through his representative, submitted a written statement indicating he wished to withdraw his appeal seeking an initial disability rating in excess of 20 percent for the service-connected diabetes mellitus, type II, and the Board received the request before promulgation of a decision. 



CONCLUSION OF LAW

The criteria are met for withdrawal by the Veteran of a substantive appeal pertinent to the assignment of an initial disability rating for diabetes mellitus, type II, in excess of 20 percent.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2016).

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 at any time before the Board promulgates a decision.  38 C.F.R. § 20.202 (2016).  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204. 

The Veteran in this case was notified of the December 2009 rating decision in January 2010, and he perfected an appeal to that rating decision.  The rating decision granted service connection for type II diabetes mellitus and assigned an initial disability rating of 20 percent.  The Veteran's representative submitted a December 2016 written request to withdraw the claim on behalf of the Veteran.  Once the Board received the request to withdraw the claim, there remained no allegations of error of fact or law for appellate consideration.  The Board does not have jurisdiction to review the initial rating as assigned by the RO, and this claim is therefore dismissed.  38 U.S.C.A. § 7105(d)(5) (West 2014).

ORDER

The appeal seeking an initial disability rating in excess of 20 percent for the service-connected diabetes mellitus, type II, is dismissed.


____________________________________________
S. B. MAYS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs