Citation Nr: 1751829 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 09-38 608 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased rating for body dysmorphic disorder (BDD) with unspecified depressive disorder (previously evaluated as an anxiety disorder), currently evaluated as 30 percent disabling prior to November 18, 2016, and 70 percent disabling thereafter. REPRESENTATION Appellant represented by: Jan Dils, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Osegueda, Counsel INTRODUCTION The Veteran served on active duty from September 1994 to November 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In a September 2008 rating decision, the RO granted service connection for an anxiety disorder and assigned a 10 percent evaluation, effective from May 7, 2008. The Veteran appealed the assigned rating. During the pendency of the appeal, in a July 2009 rating decision, the RO increased the initial evaluation for an anxiety disorder to 30 percent, effective from May 7, 2008. Thereafter, in an August 2009 statement, the Veteran's attorney at that time indicated that the Veteran did not wish to appeal the decision increasing the evaluation for his anxiety disorder from 10 to 30 percent. He noted that the Veteran was aware that he had one year from the date of the rating decision to appeal if his condition worsened. However, the Board notes that only one month remained in the appeal period for the September 2008 rating decision. Thus, the Veteran could not reinstate his appeal with the initial evaluation granted in the February 2008 rating decision unless he submitted a new notice of disagreement in August or September 2008, but he could still file a notice of disagreement with the July 2009 rating decision until August 2010 (one year from the date he was notified of the July 2009 rating decision). 38 C.F.R. § 20.204. In August 2009 correspondence, the RO acknowledged that the Veteran had withdrawn his claim for an increased rating for his anxiety disorder. The Board does note that, in a statement of the case (SOC) dated three days later, the RO included the issue on appeal. Subsequently, in October 2009, the Veteran submitted a substantive appeal and indicated that he wanted to appeal all of the issues listed on the SOC. The Court has held that the VA may implicitly or explicitly waive any objection regarding a substantive appeal, including any objection it might have had with the adequacy or timeliness of a substantive appeal if it is has treated the underlying claim as being on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). However, the Board finds this case is distinguishable, as a withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and the substantive appeal. An adequate and timely notice of disagreement is a jurisdictional bar to appellate consideration, and such an issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. See 38 USCA §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). If there is a failure to comply with the above-cited law and regulations governing appellate procedure, it is incumbent on the Board to reject the application for review on appeal. See 38 U.S.C.A. §§ 7105(d)(5), 7108; see also Marsh v. West, 11 Vet. App. 468, 470-72 (1998) [the Board has the jurisdiction - indeed, the obligation - to assess its jurisdiction]. The Board also notes that the RO did not certify the issue of entitlement to an increased rating for an anxiety disorder as being on appeal from the February 2008 rating decision. Rather, in January 2012, the RO certified the issue as being on appeal from the July 2009 rating decision. In March 2010, after his August 2009 withdrawal of the appeal, the Veteran did submit a notice of disagreement with the August 2009 rating decision in which the RO increased the evaluation for an anxiety disorder to 30 percent. In August 2010, the RO issued a SOC pertaining to that issue, and in September 2010, the Veteran submitted a substantive appeal. For these reasons, the Board finds that the July 2009 rating decision is on appeal. Thus, the Board has jurisdiction over the issue of entitlement to an increased rating. In April 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. A transcript of the hearing has been associated with the record. In July 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing has been associated with the record. In January 2013 and April 2017, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. In September 2017, the Agency of Original Jurisdiction (AOJ) recharacterized the anxiety disorder to BDD with unspecified depressive disorder and increased the evaluation from 30 to 70 percent, effective November 18, 2016. Because the assigned disability rating is not the maximum rating available, this issue remains on appeal and was returned to the Board for further appellate review. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDING OF FACT In October 2017, prior to the promulgation of a decision in the appeal, the Veteran's representative indicated that he wanted to withdraw his appeal for the issue of entitlement to an increased rating for BDD with unspecified depressive disorder. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDING 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.A. § 7105 (West 2014). 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. Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). In October 2017, the Veteran withdrew his appeal. Thus, there remain no allegations of errors of fact or law for appellate consideration with respect to this claim. Accordingly, the Board does not have jurisdiction to review the appeal of this issue, and it is dismissed. ORDER The appeal is dismissed. ____________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs