Citation Nr: 1323520 Decision Date: 07/24/13 Archive Date: 08/01/13 DOCKET NO. 09-43 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased evaluation for service-connected degenerative joint disease and plantar fasciitis of the right foot (hereinafter, right foot disability), evaluated 10 percent disabling prior to October 19, 2010, and 20 percent disabling thereafter. 2. Entitlement to an increased evaluation for service-connected traumatic arthritis of the lumbar spine (hereinafter, low back disability), evaluated 10 percent disabling prior to October 19, 2010, and 20 percent disabling thereafter. REPRESENTATION Veteran represented by: Heather E. Vanhoose, Attorney ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to February 1972 and from October 2003 to October 2005. He also had additional service in the West Virginia Army National Guard. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In a rating decision dated in November 2010, the RO increased the evaluations assigned for the Veteran's low back and right foot disabilities from 10 percent to 20 percent, effective from October 19, 2010. Accordingly, the Veteran's claims have been recharacterized as stated on the title page to reflect the "staged" ratings created by these awards. Hart v. Shinseki, 23 Vet App 9 (2009). As these increases do not represent a full grant of either benefit sought, neither issue is abrogated and the matters remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). Also, by the November 2010 rating decision, the RO granted separate 10 percent evaluations for radiculopathy of the left and right lower extremities associated with the service-connected low back disability. The Veteran has not expressed disagreement with the assigned evaluations or effective dates, and thus, those matters are not before the Board. Archbold v. Brown, 9 Vet. App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). The Veteran's VA Form 9 reflects his desire to participate in a hearing before a member of the Board. In a September 2012 letter from the RO, the Veteran was notified that he had been scheduled for such a hearing on October 31, 2012; however, this hearing was postponed due to inclimate weather. In a March 2013 letter from the RO, the Veteran was notified that he had been scheduled for another hearing on July 10, 2013; however, it appears that the Veteran requested that this hearing be cancelled. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. 38 C.F.R. § 20.704 (d), (e) (2012). FINDINGS OF FACT 1. In a statement received at the RO, after certification of the appeal to the Board, but prior to the promulgation of a decision in the appeal, the Veteran's private attorney indicated that the Veteran wished to withdraw the appeal for the issue of entitlement to an increased evaluation for his service-connected right foot disability. 2. In a statement received at the RO, after certification of the appeal to the Board, but prior to the promulgation of a decision in the appeal, the Veteran's private attorney indicated that the Veteran wished to withdraw the appeal for the issue of entitlement to an increased evaluation for his service-connected low back disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran for the issue of entitlement to an increased evaluation for a service-connected right foot disability have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal by the Veteran for the issue of entitlement to an increased evaluation for a service-connected low back disability 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 FINDINGS AND CONCLUSIONS 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 (2012). 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's private attorney, in a July 2013 submission, indicated that it was the Veteran's intent to withdraw the appeal as to the issues of (1) entitlement to an increased evaluation for a service-connected right foot disability, and (2) entitlement to an increased evaluation for a service-connected low back disability. (See a July 2013 statement from the Veteran's private attorney.) Thus, those issues are no longer for appellate consideration. Also, in light of the Veteran's withdrawal of these claims, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased evaluation for service-connected degenerative joint disease and plantar fasciitis of the right foot (hereinafter, right foot disability), evaluated 10 percent disabling prior to October 19, 2010, and 20 percent disabling thereafter, is dismissed. Entitlement to an increased evaluation for service-connected traumatic arthritis of the lumbar spine (hereinafter, low back disability), evaluated 10 percent disabling prior to October 19, 2010, and 20 percent disabling thereafter, is dismissed. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs