Citation Nr: 1829941	
Decision Date: 11/20/18    Archive Date: 12/06/18

DOCKET NO.  17-58 944	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Chicago, Illinois


THE ISSUE

Entitlement to an effective date earlier than February 24, 2014 for the award of service connection for vertigo.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


ATTORNEY FOR THE BOARD

J. Rothstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1967 to January 1970.  He died in November 2016.  The appellant is his surviving spouse and has been substituted as the appellant in the appeal.

This appeal before the Board of Veterans' Appeals (Board) arose from a November 2014 rating decision in which the RO, inter alia, granted service connection and assigned an initial 10 percent rating for vertigo, effective February 24, 2014.  In January 2015, the Veteran filed a notice of disagreement (NOD) with the assigned  rating and effective date.  

In a September 2017 rating decision, the RO awarded a higher, initial 30 percent rating for service-connected vertigo, effective February 24, 2014.  In that rating decision, the appellant was appropriately advised that this is the highest schedular rating available for vertigo under Diagnostic Code 6204, and, thus, considered a full grant of the benefit sought on appeal.  Notably, there is no evidence or allegation as to a higher rating under any other provision of VA's rating schedule or on an extra-schedular basis. Thus, the Board likewise finds this matter resolved.   See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of the maximum possible rating abrogates the pending appeal for a higher rating for the service-connected disability).  

Also in September 2017, the RO issued a statement of the case (SOC) as to the claim for an earlier effective date, only, and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2017.

FINDING OF FACT

In October 2018, prior to the promulgation of an appellate decision, the appellant, through her attorney, notified the Board that she wished to withdraw the claim pending on appeal.
CONCLUSION OF LAW

The criteria for withdrawal of an appeal are met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 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. § 7105.  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.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.

In the present case, in an October 2018 correspondence, the appellant, through her attorney, withdrew from appeal the pending claim for an effective date earlier than February 24, 2014 for the award of service connection for vertigo.  Thus, no allegation(s) of errors of fact or law remain(s) for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal, and it must be dismissed.


ORDER

The appeal is dismissed.


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


Department of Veterans Affairs