98-18 992

Citation Nr: 1602928
Decision Date: 01/29/16 Archive Date: 02/05/16
DOCKET NO. 98-18 992 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey
THE ISSUE
Entitlement to an initial disability rating in excess of 10 percent for posttraumatic stress disorder (PTSD) with bipolar disorder (previously classified as depressive disorder) from April 11, 1974, to November 6, 1996, and a disability rating in excess of 30 percent from November 7, 1996, to October 7, 1999, to include consideration of an extraschedular evaluation.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
M. D. Bruce, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1968 to December 1969.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which awarded service connection for depression with anxiety and assigned an initial 10 percent evaluation effective December 7, 1994. The Veteran's disability was later assigned an effective date of April 11, 1974, and has been recharacterized as PTSD with bipolar disorder.
In November 2008, the Board denied a claim for entitlement to an initial disability rating in excess of 10 percent prior to October 7, 1999, for the Veteran's psychiatric disability, and a disability rating in excess of 50 percent thereafter. The Veteran appealed the November 2008 Board decision to the United States Court of Appeals for Veterans Claims (Court). In June 2009, the Court issued an Order vacating that part of the November 2008 Board decision described above, and remanded the matter to the Board. Subsequently, the Board remanded the case in January 2010, July 2011, and February 2013. Additionally, in February 2013 the Board dismissed the Veteran's claim for entitlement to a disability rating in excess of 50 percent for PTSD with bipolar disorder on and after October 7, 1999, pursuant to the Veteran's request to withdraw that part of the issue on appeal.
The Board notes that in a November 2014 rating decision, the RO increased the assigned disability rating from 10 percent to 30 percent from November 7, 1996, through October 7, 1999. However, because the increased disability rating assigned is not the maximum rating available, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007).
Additionally, the Veteran appeared at a Board hearing before a now retired Veterans Law Judge (VLJ) in connection with his appeal in September 2001. While the Veteran was afforded the opportunity for a new hearing before a different VLJ who would ultimately decide the case, he Veteran declined and asked that the claim be considered based on the evidence of record.
FINDING OF FACT
In February 2015, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the appeal for entitlement to an initial disability rating in excess of 10 percent for PTSD with bipolar disorder from April 11, 1974, to November 6, 1996, and a disability rating in excess of 30 percent from November 7, 1996, to October 7, 1999, to include consideration of an extraschedular evaluation.
CONCLUSION OF LAW
The criteria for withdrawal of a substantive appeal by the Veteran for entitlement to an initial disability rating in excess of 10 percent for PTSD with bipolar disorder from April 11, 1974, to November 6, 1996, and a disability rating in excess of 30 percent from November 7, 1996, to October 7, 1999, to include consideration of an extraschedular evaluation, have been 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
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. 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 Veteran or by his or her authorized representative. Id.In a February 2015 written statement, and again in an January 2016 written statement from his representative, the Veteran indicated that he wished to withdraw the appeal of his claim for entitlement to an initial disability rating in excess of 10 percent for PTSD with bipolar disorder from April 11, 1974, to November 6, 1996, and a disability rating in excess of 30 percent from November 7, 1996, to October 7, 1999, to include consideration of an extraschedular evaluation. Thus, this issue is no longer for appellate consideration.
ORDER
The appeal for entitlement to an initial disability rating in excess of 10 percent for PTSD with bipolar disorder from April 11, 1974, to November 6, 1996, and a disability rating in excess of 30 percent from November 7, 1996, to October 7, 1999, to include consideration of an extraschedular evaluation, is dismissed
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs