Citation Nr: 1328016 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 12-26 649 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine. 2. Entitlement to an initial evaluation in excess of 10 percent for paresthesia of the right upper extremity. 3. Entitlement to an initial evaluation in excess of 10 percent for paresthesia of the left upper extremity. 4. Entitlement to service connection for a right shoulder disorder. 5. Entitlement to service connection for a sinus disorder. 6. Entitlement to service connection for a low back disorder. 7. Entitlement to service connection for a double hernia. 8. Entitlement to service connection for the residuals of a facial injury. 9. Entitlement to service connection for a lung disorder. 10. Entitlement to service connection for right lower extremity numbness. 11. Entitlement to service connection for left lower extremity numbness. 12. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD M. Hannan, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran appellant had active duty in the United States Army from September 1961 to August 1963. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. In addition to the paper claims file, there is an electronic file (Virtual VA) associated with the claim. Virtual VA does not currently contain evidence pertinent to the claims that is not already included in the paper claims file. FINDINGS OF FACT 1. Prior to the promulgation of a decision on the appeal, the Veteran's attorney withdrew the appeals as to the issues of entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine; entitlement to an initial evaluation in excess of 10 percent each for paresthesia of the right and left upper extremities; and entitlement to service connection for a right shoulder disorder, a sinus disorder, a low back disorder, a double hernia, the residuals of a facial injury, a lung disorder and right and left lower extremity numbness in a written statement received in July 2013. 2. A total disability rating based on individual unemployability (TDIU) due to service-connected disability was granted in a May 2013 rating decision, and there is no longer a case or controversy as to the issue pertaining to entitlement to TDIU. CONCLUSIONS OF LAW 1. The criteria for withdrawal by the Veteran of his Substantive Appeals on the issues of entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine; entitlement to an initial evaluation in excess of 10 percent each for paresthesia of the right and left upper extremities; and entitlement to service connection for a right shoulder disorder, a sinus disorder, a low back disorder, a double hernia, the residuals of a facial injury, a lung disorder and right and left lower extremity numbness 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 Board lacks jurisdiction over the issue of entitlement to TDIU, because that issue has been granted and rendered moot. 38 U.S.C.A. §§ 7104, 7105 (West 2002 & Supp. 2012); 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally the Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement (NOD) in writing, and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 U.S.C.A. § 7105, 38 C.F.R. § 21.200. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c). In August 2012, the Veteran filed a substantive appeal (VA Form 9) with respect to his claims of entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine; entitlement to an initial evaluation in excess of 10 percent each for paresthesia of the right and left upper extremities; and entitlement to service connection for a right shoulder disorder, a sinus disorder, a low back disorder, a double hernia, the residuals of a facial injury, a lung disorder and right and left lower extremity numbness. A letter from the Veteran's attorney, dated July 10, 2013, reflects that the attorney was withdrawing the August 2012 VA Form 9 that appealed the issues listed in the August 2012 Statement of the Case. The evidence of record shows that the Veteran withdrew his appeal for his claims of entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine; entitlement to an initial evaluation in excess of 10 percent each for paresthesia of the right and left upper extremities; and entitlement to service connection for a right shoulder disorder, a sinus disorder, a low back disorder, a double hernia, the residuals of a facial injury, a lung disorder and right and left lower extremity numbness. Therefore, the appeals as to those 11 claims have been withdrawn. See 38 C.F.R. § 20.204. As the Veteran has withdrawn his appeals as to these 11 issues on appeal, there remain no allegations of error of fact or law for appellate consideration. In addition, the Veteran's claim for TDIU was granted in a rating decision issued by the RO in May 2013. Therefore, the Board lacks jurisdiction over the issue of entitlement to TDIU because that issue has been granted and rendered moot on appeal. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101, 20.200, 20.202. Accordingly, the Board does not have jurisdiction to review the appeals as to the Veteran's 12 claims listed on the title page. Therefore, said issues are dismissed, without prejudice. ORDER The appeals as to the issues of entitlement to an initial evaluation in excess of 20 percent for degenerative disc disease of the cervical spine; entitlement to an initial evaluation in excess of 10 percent each for paresthesia of the right and left upper extremities; and entitlement to service connection for a right shoulder disorder, a sinus disorder, a low back disorder, a double hernia, the residuals of a facial injury, a lung disorder and right and left lower extremity numbness are dismissed. The appeal as to the issue of entitlement to TDIU is moot and that issue is dismissed for lack of jurisdiction. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs