Citation Nr: 1338775 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-05 457 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to a rating in excess of 20 percent for chronic low back pain with multi-level degenerative disc disease of the lumbar spine and L4-5 spondylosis and spondylolisthesis (referred to hereinafter as "low back disability"). 2. Entitlement to an initial rating in excess of 10 percent for through October 27, 2011, and in excess of 20 percent beginning October 28, 2011, for right lower extremity radiculopathy and neurogenic claudication. 3. Entitlement to an initial rating in excess of 10 percent for through October 27, 2011, and in excess of 20 percent beginning October 28, 2011, for left lower extremity radiculopathy and neurogenic claudication. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) from rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, dated in March 2007 and February 2008. The former rating decision continued the previously established 20 percent rating for his low back disability. The Veteran perfected an appeal as to this determination. The latter rating decision granted service connection and assigned an initial rating of 10 percent for both right and left lower extremity radiculopathy and neurogenic claudication effective January 8, 2007. In December 2011, the Board remanded this matter for additional development. It was explained why the initial ratings for right and left lower extremity radiculopathy and neurogenic claudication are included as part of the appeal regarding the rating for the low back disability. In a February 2012 rating decision, the RO increased the initial rating for both right and left lower extremity radiculopathy and neurogenic claudication to 20 percent effective October 28, 2011. Even higher initial ratings are possible for the periods through October 27, 2011, and beginning October 28, 2011, however. Only a partial grant was made, in other words. The appeal of initial ratings assigned for each period therefore continues with recharacterization as set forth above. AB v. Brown, 6 Vet. App. 35 (1993). The aforementioned additional development has been completed or at least substantially completed. Adjudication of this matter thus may proceed if otherwise in order. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). No potential problems with adjudication are found at this time. Thus, the following determinations are made based on review of the Veteran's paper claims file and Virtual VA electronic claims file. FINDING OF FACT In October 2012, and then after clarification in November 2013, which was prior to the promulgation of a decision in the appeal, the Veteran, through his attorney, expressed the desire that he no longer wished to proceed with the appeal of each issue comprising this matter. CONCLUSION OF LAW The criteria for withdrawal of the appeal of each issue comprising this matter have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION An appeal may be withdrawn as to any or all issues involved at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204(b). Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204(a). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination or determinations being appealed. 38 U.S.C.A. § 7105(d)(5); 38 C.F.R. §20.202. In a statement dated and received in October 2012, the Veteran acknowledged the increase in the initial rating both his right and left lower extremity radiculopathy and neurogenic claudication. He then indicated that "those issue's (sic) are resolved." Clarification was sought as to whether or not he was withdrawing the aforementioned issues. After communicating with him, the Veteran's representative indicated in a November 2013 statement that he is satisfied now that a total disability rating based on individual unemployability has been granted. It further was indicated that he thus now desires to withdraw "all pending appeals." He desires to withdraw the aforementioned issues as well as the issue of entitlement to a rating in excess of 20 percent for a low back disability, in other words. Both the statement from the Veteran and that from his representative were received prior to the Board's adjudication herein. The appeal of entitlement to a rating in excess of 20 percent for a low back disability and to initial ratings in excess of 10 percent for through October 27, 2011, and in excess of 20 percent beginning October 28, 2011, for right and left lower extremity radiculopathy and neurogenic claudication, in sum, have been properly withdrawn. It follows that no allegations of errors of fact or law remain. Accordingly, each issue comprising this matter dismissed. ORDER The appeal of entitlement to a rating in excess of 20 percent for a low back disability is dismissed. The appeal of entitlement to an initial rating in excess of 10 percent for through October 27, 2011, and in excess of 20 percent beginning October 28, 2011, for right lower extremity radiculopathy and neurogenic claudication is dismissed. The appeal of entitlement to an initial rating in excess of 10 percent for through October 27, 2011, and in excess of 20 percent beginning October 28, 2011, for left lower extremity radiculopathy and neurogenic claudication is dismissed. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs