Citation Nr: 1332920	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  10-17 392	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine prior to January 23, 2012.

2.  Entitlement to a rating in excess of 20 percent for degenerative joint disease of the lumbar spine since January 23, 2012.


REPRESENTATION

Appellant represented by:	AMVETS


ATTORNEY FOR THE BOARD

T. Adams, Counsel



INTRODUCTION

The Veteran had active service from June 1979 to August 1991.

This matter is on appeal from a November 2008 decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Seattle, Washington.

In October 2013, the Board received a copy of the Veteran's obituary indicating that the Veteran died in June 2013, which would warrant dismissal of appeal due to lack of jurisdiction.  See 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.1302 (2013).  However, as explained immediately below, the Veteran withdrew her appeal prior to her death.


FINDING OF FACT

On May 22, 2013, prior to the Veteran's death, the Board received notification from the appellant, through her authorized representative, that a withdrawal of this appeal is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant  have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

This matter originates from a November 2008 rating decision that denied a disability rating in excess of 10 percent for degenerative disc disease of the lumbosacral spine.  The Veteran appealed.  Then, by a rating action dated in March 2012, the 10 percent rating assigned for degenerative disc disease of the lumbosacral spine was increased to 20 percent, effective from January 23, 2012.  

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2013).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

In a May 2013 statement, one month prior to her death, the Veteran, through her representative, withdrew her appeal.  See, May 22, 2013, VA Form 21-4138, Statement in Support of Claim.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  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.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

In reaching this determination, the Board intimates no opinion as to the merits of this appeal or to any derivative claim brought by a survivor of the Veteran.  38 C.F.R. § 20.1106 (2013).


ORDER

The appeal is dismissed.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs