Citation Nr: 1326053	
Decision Date: 08/16/13    Archive Date: 08/26/13

DOCKET NO.  09-24 953	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines


THE ISSUES

1.  Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease.

2.  Entitlement to a rating in excess of 40 percent for lumbar radiculopathy in the left lower extremity.

3.  Entitlement to a rating in excess of 20 percent for lumbar radiculopathy in the right lower extremity. 


REPRESENTATION

Veteran represented by:	National Association of County Veterans Service Officers



ATTORNEY FOR THE BOARD

Andrea Johnson, Associate Counsel


INTRODUCTION

The Veteran had active military service from July 1962 to December 1984.

This appeal comes to the Board of Veterans' Appeals (Board) from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his file on the "Virtual VA" system to ensure a total review of the evidence.

In June and again October of 2012 the Veteran clearly expressed his satisfaction with his receipt of 100 percent combined schedular disability benefits and his wish to withdraw the claims on appeal.  Thus, this appeal will be dismissed


FINDING OF FACT

The Veteran clearly expressed his wish to withdraw these appeals.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been constructively met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

In an August 2012 Report of General Information a member of the RO Appeals Team recorded his phone call with the Veteran.  The Veteran stated he wanted to withdraw his appeal for his back condition and bilateral radiculopathy since he was already in receipt of a 100 percent combined schedular rating.  The Veteran also expressed he was unable to fax written confirmation to the RO.  The RO then sent the Veteran a letter to confirm withdrawal; however the Veteran never returned the letter.

In October 2012 the RO again called the Veteran to clarify his desire to withdraw the issues on appeal.  The Veteran again expressed a desire to withdraw the claims on appeal, but noted the letter he received did not include the form for him to complete and return to the VA.  Following this phone call the VA again did not receive written confirmation of the Veteran's desire to withdraw his appeals.

The Board acknowledges that VA regulations require that appeal withdrawals must be in writing, must include the name of the Veteran, the applicable claim number, and a statement that the appeal is withdrawn, and must be received by the Board prior to issuance of a decision on the issue being withdrawn.  38 C.F.R. § 20.204.  However, based on the specific facts in this case the Board finds these requirements have been constructively met.  In this case, there is simply nothing for the Board to address. 

The Board acknowledges the Veteran has not submitted written confirmation of his intent to withdraw his claim.  However, the Veteran has clearly expressed his intent to withdraw all issues on appeal on two separate occasions.  Additionally, the Veteran has reported difficulties submitting the required written confirmation to the VA.  Finally, the Board notes the Veteran already receives 100 percent combined schedular disability benefits, and as such his desire to withdraw his appeals is understandable.

Based on the foregoing the Board finds that based on the specific factual basis in this case the criteria for withdrawal of an appeal has been constructively met.
Accordingly, further action by the Board on this issue is not appropriate and the appeal should be dismissed.  See 38 U.S.C.A. § 7105(d).

ORDER

The Veteran's claims are dismissed.



____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs