Citation Nr: 1302196	
Decision Date: 01/18/13    Archive Date: 01/23/13

DOCKET NO.  07-31 615	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 10 percent for service-connected migraine headaches.

2.  Entitlement to a disability rating in excess of 20 percent for service-connected thoracolumbar spine degenerative joint disease (DJD).

3.  Entitlement to a disability rating in excess of 20 percent for service-connected cervical spine DJD.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

James Alsup, Counsel


INTRODUCTION

The Veteran served on active duty from December 1983 to November 1986.

This matter comes before the Board of Veterans Appeals (BVA) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.  A May 2007 rating decision denied increased ratings for the thoracolumbar and cervical spines, and denied entitlement to total disability due to individual unemployability (TDIU).  The Veteran disagreed and perfected an appeal.  A July 2008 rating decision granted service connection for migraine headaches evaluated as 10 percent disabling.  The Veteran disagreed with the disability evaluation and perfected an appeal.

In a September 2012 rating decision, the RO granted entitlement to TDIU.  In a November 2012 written submission, the Veteran notified VA of his intent to withdraw all remaining issues from appeal.


FINDINGS OF FACT

1.  Prior to November 14, 2012, the Veteran had appealed the issues of entitlement to an initial disability rating in excess of 10 percent for service-connected migraine headaches, a disability rating in excess of 20 percent for service-connected thoracolumbar spine DJD, and a disability rating in excess of 20 percent for service-connected cervical spine DJD. 

2.  On November 14, 2012, after certification of appeal of the Veteran's claims to the Board, the RO received a written notice from the Veteran and his representative that the Veteran wished to withdraw any remaining issues that were on appeal.



CONCLUSIONS OF LAW

1.  The issue of entitlement to an initial disability rating in excess of 10 percent for service-connected migraine headaches is dismissed.  38 U.S.C.A. §§ 7104, 7105(b) and (d) (West 2002); 38 C.F.R. § 20.204 (2012).

2.  The issue of entitlement to a disability rating in excess of 20 percent for service-connected thoracolumbar spine DJD is dismissed.  38 U.S.C.A. §§ 7104, 7105(b) and (d) (West 2002); 38 C.F.R. § 20.204 (2012).

3.  The issue of entitlement to a disability rating in excess of 20 percent for service-connected cervical spine DJD is dismissed.  38 U.S.C.A. §§ 7104, 7105(b) and (d) (West 2002); 38 C.F.R. § 20.204 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran submitted a written request that was received by VA on November 14, 2012, and which seeks to withdraw issues of an initial disability rating in excess of 10 percent for service-connected migraine headaches, a disability rating in excess of 20 percent for service-connected thoracolumbar spine DJD, and a disability rating in excess of 20 percent for service-connected cervical spine DJD from appeal.  The Board observes that VA has a duty to notify a veteran of the evidence needed to substantiate a claim, of the assistance VA will provide and of the evidence the Veteran is required to provide before adjudication of a claim.  38 U.S.C.A. §§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012).  In this case, however, the Veteran seeks to withdraw his claims from appeal.  Thus, he cannot be prejudiced by any lack of notice or assistance VA may have provided in this case.

Under 38 U.S.C.A. § 7105, the Board does not have jurisdiction over issues withdrawn by a veteran.  Pursuant to 38 C.F.R. § 20.204, a veteran can withdraw his appeal, or any issue therein, in writing that includes the name of the veteran, the applicable VA file number and a statement that the issue is to be withdrawn from appeal.  Such withdrawal is effective when it is received.  38 C.F.R. § 20.204(b).  
The written submission received by VA on November 14, 2012, included the Veteran's name, VA file number and a request to withdraw all remaining issues on appeal.  Prior to November 14, 2012, the Veteran had the issues of entitlement to an initial disability rating in excess of 10 percent for service-connected migraine headaches, a disability rating in excess of 20 percent for service-connected thoracolumbar spine DJD, and a disability rating in excess of 20 percent for service-connected cervical spine DJD remaining on appeal. 

Thus, the withdrawal of the three issues was effective upon receipt by the Board on November 14, 2012.  The Board has no jurisdiction to consider the issues of entitlement to an initial disability rating in excess of 10 percent for service-connected migraine headaches, a disability rating in excess of 20 percent for service-connected thoracolumbar spine DJD, and a disability rating in excess of 20 percent for service-connected cervical spine DJD, which have been withdrawn and they shall, therefore, be dismissed.


ORDER

Entitlement to an initial disability rating in excess of 10 percent for migraine headaches is dismissed.

Entitlement to a disability rating in excess of 20 percent for service-connected thoracolumbar spine DJD is dismissed.

Entitlement to a disability rating in excess of 20 percent for service-connected cervical spine DJD is dismissed.



____________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs