BVA9501408 DOCKET NO. 93-18 274 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to an increased rating for schizophrenia, currently evaluated as 50 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD M. F. Halsey, Counsel INTRODUCTION The veteran served on active duty from October 1948 to August 1960. By a March 1991 rating action, the RO confirmed a previously assigned 30 percent evaluation for the veteran's service- connected schizophrenia. An appeal ensued with receipt of a notice of disagreement later in March 1991 and a VA Form 1-9 in May 1991. Thereafter, the veteran and his wife testified at a hearing held at the RO in September 1991. During the pendency of the appeal, additional evidence was received and the veteran submitted numerous statements. Supplemental statements of the case were issued in November and December 1991, and in September 1992. Following receipt of yet additional evidence, the RO took action in March 1993 to increase the veteran's rating for schizophrenia to 50 percent. A supplemental statement of the case notifying the veteran of this increase was issued in April 1993. Following transfer of the case to the Board of Veterans' Appeals (Board), the veteran submitted a July 25, 1994, statement wherein he indicated that he was satisfied with the 50 percent rating. In a September 6, 1994, statement, his representative characterized the July 25, 1994, statement as a withdrawal of the appeal. CONTENTIONS OF APPELLANT ON APPEAL As noted above, the appellant has indicated that he is satisfied with the currently assigned 50 percent rating for schizophrenia, implying that he does not desire further appellate review of this issue. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that it has no jurisdiction to proceed with a review of this appeal. FINDINGS OF FACT 1. The veteran's representative signed and submitted a notice of disagreement with a March 1991 RO denial of an increase greater than 30 percent for schizophrenia. 2. An appeal of the March 1991 decision was prepared by the representative and was received by VA in May 1991. 3. By a statement dated July 25, 1994, the veteran expressed his satisfaction with a March 1993 rating decision that granted a 50 percent rating for schizophrenia. 4. The veteran's representative, by a September 6, 1994, statement, declined to make further argument on the claim because the veteran had "withdrawn his appeal." CONCLUSION OF LAW The Board of Veterans' Appeals does not have jurisdiction to consider a claim of entitlement to an increased rating for schizophrenia. 38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R. §§ 20.101, 20.202, 20.204 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION An appellant may withdraw his appeal in writing at any time before the Board of Veterans' Appeals promulgates a final decision. § 20.204. When an appellant does so, the withdrawal effectively creates a situation where there is a failure to allege error of fact or law. Consequently, in such an instance, the Board does not have jurisdiction to review an appeal. A dismissal is appropriate in such a case. § 7105(d). After receiving an increased rating by virtue of the RO's March 1993 action, the veteran submitted a July 25, 1994, statement in which he expressed his satisfaction with the newly granted 50 percent rating for his service-connected psychosis. The veteran's representative, in a September 6, 1994, statement, characterized the veteran's action as a withdrawal of the appeal. This is certainly permissible under the Board's rules of practice so long as it is done in writing. § 20.204. Neither the notice of disagreement in this case nor the appeal was filed by the appellant personally. Consequently, this is a case where either the appellant or his representative may withdraw the case from appellate review. Id. Given the statements from both the appellant and his representative, and the clear message from reading these two documents together that the appeal should be withdrawn, further action by the Board is not appropriate. § 7105(d). ORDER The appeal of the claim of entitlement to an increased rating for schizophrenia is dismissed. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.