Citation Nr: 1219366	
Decision Date: 06/01/12    Archive Date: 06/13/12

DOCKET NO.  09-11 535	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an initial rating higher than 10 percent for the service-connected low back strain.


REPRESENTATION

Appellant represented by:	Virginia Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran and her spouse


ATTORNEY FOR THE BOARD

C. Bosely, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 2004 to September 2007.

This matter originally came before the Board of Veterans' Appeals (Board) on appeal of an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which granted service connection for low back strain and assigned a noncompensable rating effective from September 4, 2007.  The Agency of Original Jurisdiction (AOJ) throughout the course of the appeal has remained with the RO in Roanoke, Virginia.

In March 2010, the RO increased the initial rating of the disability to 10 percent.  The Veteran advised VA that she desired to pursue her appeal for an initial rating higher than 10 percent.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for disabilities already service-connected).  

In October 2009, the Veteran and her spouse testified before the RO's Decision Review Officer (DRO), and in August 2011 the Veteran and her spouse testified before the undersigned Acting Veterans Law Judge in a hearing at the RO ("Travel Board" hearing).  A transcript of each hearing is of record.

In January 2012, the Board remanded the matter to the RO for additional evidentiary development, to include consideration of whether a separate rating may be assignable for right lower extremity radiculopathy.  Upon remand, the RO issued a rating decision in February 2012 awarding a 10 percent rating for radiculopathy of the right lower extremity effective from March 2011.

The case has now been returned to the Board for further appellate action.




FINDINGS OF FACT

1.  The Veteran in this case served on active duty from September 2004 to September 2007.

2.  In March 2012, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that she wished to withdraw her appeal.


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 2002); 38 C.F.R. § 20.204 (2011).


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.A. § 7105 (West 2002).  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 (2011).  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 Veteran has withdrawn her appeal by way of a March 2012 notification 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.




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ORDER

The appeal is dismissed.



____________________________________________
Nathaniel J. Doan
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs