Citation Nr: 1306399	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  09-34 243	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to a rating for spondylolisthesis with spondylosis and fusion of L4-L5 and L5-S1 higher than 20 percent before January 6, 2011, and a rating higher than 40 percent from January 6, 2011.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and Mrs. W. 


ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 


INTRODUCTION

The Veteran, who is the appellant, served on active duty from June 1977 to March 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2007 of a Department of Veterans Affairs (VA) Regional Office (RO).

In April 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the Veteran's file.

In December 2010, the Board remanded the claim for further development.  


FINDING OF FACT

In correspondence in January 2013, prior to promulgation of a decision by the Board, the Veteran withdrew the appeal on the claim for a rating for spondylolisthesis with spondylosis and fusion of L4-L5 and L5-S1 higher than 20 percent before January 6, 2011, and a rating higher than 40 percent from January 6, 2011.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal on the claim for a rating for spondylolisthesis with spondylosis and fusion of L4-L5 and L5-S1 higher than 20 percent before January 6, 2011, and a rating higher than 40 percent from January 6, 2011, 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

In a rating decision in December 2007, the RO denied a rating higher than 20 percent for spondylolisthesis with spondylosis and fusion of L4-L5 and L5-S, which the Veteran appealed.  In December 2010, the Board remanded the Veteran's claim, and in October 2011, the RO granted a 40 percent rating from January 6, 2011.

In a written statement in January 2013, prior to promulgation of a Board decision, the Veteran's representative stated that the Veteran was completely satisfied with the 40 percent rating assigned by the RO and wished to withdraw his appeal.

A substantive appeal may be withdrawn, in writing, at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.

The Veteran's correspondence in January 2013 clearly evinces intent to withdraw from the appeal the claim for a rating for spondylolisthesis with spondylosis and fusion of L4-L5 and L5-S1 higher than 20 percent before January 6, 2011, and a rating higher than 40 percent from January 6, 2011.  Consequently the Board does not have appellate jurisdiction over the matter.  38 U.S.C.A. § 7105.


ORDER

The appeal of the claim for a rating for spondylolisthesis with spondylosis and fusion of L4-L5 and L5-S1 higher than 20 percent before January 6, 2011, and a rating higher than 40 percent from January 6, 2011, is dismissed.



____________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs