Citation Nr: 1300917	
Decision Date: 01/09/13    Archive Date: 01/16/13

DOCKET NO.  03-07 311	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left elbow from April 29, 2010.  

2.  Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the right elbow from April 29, 2010.  

3.  Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Jarrette A. Marley, Associate Counsel
INTRODUCTION

The Veteran served on active duty from January 1946 to November 1947, from September 1948 to June 1954, from December 1954 to May 1955, and from September 1955 to February 1967.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Nashville, Tennessee Department of Veterans Affairs (VA) Regional Office (RO).  

In July 2007, December 2009, and October 2011, the Board remanded the current issues to the RO via the Appeals Management Center (AMC) in Washington, DC for further evidentiary development.  The case has again been returned to the Board for review.  

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011).  38 U.S.C.A. § 7107(a)(2) (West 2002). 


FINDING OF FACT

In November 2012, prior to the promulgation of a decision in the appeal for increased ratings for degenerative joint disease of the left elbow and degenerative joint disease of the right elbow from April 29, 2010, and for an increased rating for degenerative joint disease of the lumbar spine, the Veteran indicated that he wished to withdraw the appeal with respect to those claims.  


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal by the Veteran on the issues of increased ratings for degenerative joint disease of the left elbow and degenerative joint disease of the right elbow from April 29, 2010, and for an increased rating for degenerative joint disease of the lumbar spine, have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn on the record during a hearing or in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  

In October 2011, the Board sought additional evidentiary development with regard to the Veteran's appeal for increased ratings for degenerative joint disease of the left elbow and degenerative joint disease of the right elbow from April 29, 2010, and for an increased rating for degenerative joint disease of the lumbar spine.  In September 2012, the Veteran was scheduled for VA examinations regarding these issues.  On September 4, 2012, the Veteran cancelled the scheduled VA examinations without providing a reason.  

In correspondence received on November 5, 2012, the Veteran indicated that he was withdrawing his appeal for increased ratings for degenerative joint disease of the left elbow and degenerative joint disease of the right elbow from April 29, 2010, and for an increased rating for degenerative joint disease of the lumbar spine.  
Thus, with respect to those claims, there is no remaining allegation of error of fact or law for appellate consideration, and the appeal on those issues is withdrawn.  Accordingly, the Board does not have jurisdiction to review the appeal of those claims, and the appeal of those claims is dismissed.  



ORDER

The appeal for an increased rating for degenerative joint disease of the left elbow from April 29, 2010 is dismissed.  

The appeal for an increased rating for degenerative joint disease of the right elbow from April 29, 2010 is dismissed.  

The appeal for an increased rating of the lumbar spine is dismissed.  



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs