Citation Nr: 1751645	
Decision Date: 11/13/17    Archive Date: 11/22/17

DOCKET NO.  13-08 123	)	DATE
	)
	)

On appeal from the decision of the 
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to restoration of a disability rating of 100 percent for residuals of prostatectomy, status post prostate cancer.

2.  Entitlement to an increased rating greater than 20 percent from July 1, 2012, through July 15, 2013, for residuals of prostatectomy, status post prostate cancer.

3.  Entitlement to an increased rating greater than 60 percent from July 16, 2013, for residuals of prostatectomy, status post prostate cancer.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

C. J. Houbeck, Counsel


INTRODUCTION

The Veteran had active service from September 1967 to September 1971.

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Louisville, Kentucky.  Jurisdiction currently resides with the RO in St. Petersburg, Florida.

The Board notes that the claim stems from the reduction of the Veteran's rating for residuals of prostate cancer from 100 percent to 20 percent, effective July 1, 2012.  The Veteran had not objected to the original proposal to reduce the rating, proposed in a November 2011 rating decision.  The RO characterized the appeal solely as a propriety of the reduction claim in the February 2013 Statement of the Case (SOC).  Based on the Veteran's statements the RO subsequently changed the appeal to one of solely as a claim for increased rating in its November 2013 Supplemental Statement of the Case (SSOC).  The March 2014 VA Form 8, Certification of Appeal, also listed the issue as one for increased rating, although the RO also listed the issue in the electronic Veterans Appeals Control and Locator System (VACOLS) as simply a reduction claim.  As such, the Board has recharacterized the issues as above and listed the rating reduction issue and the increased rating issues separately on the title page.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (distinguishing between a rating reduction case and a rating increase case).

In addition, an August 2013 rating decision granted an increased rating from 20 percent to 60 percent, effective August 14, 2013, and a November 2013 rating decision assigned an effective date of the 60 percent rating from July 16, 2013.  Regardless of the RO's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available.  See AB v. Brown, 6 Vet. App. 35 (1993).

This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems.  Accordingly, any future consideration of the case should take into consideration the existence of these electronic records.


FINDINGS OF FACT

1.  The Veteran in this case served on active duty from September 1967 to September 1971.

2.  On March 7, 2016, and July 3, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant's representative and the appellant, respectively, that a withdrawal of this appeal is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).


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. § 7105 (2012).  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 (2017).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, the appellant has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.



ORDER

The appeal is dismissed.




		
J. W. FRANCIS
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs