Citation Nr: 1339319	
Decision Date: 11/29/13    Archive Date: 12/13/13

DOCKET NO.  07-37 532	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent prior to May 28, 2009, and thereafter in excess of 40 percent, for degenerative joint disease and degenerative disc disease with herniated disc at L5-S1 (lumbar spine disability).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

J. Murray, Counsel 


INTRODUCTION

The Veteran had active service from March 1985 to October 2006. 

These matters come before the Board of Veteran's Appeals (Board) from a February 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative joint disease and degenerative disc disease with a herniated disc at L5-S1 and assigned a 10 percent disability evaluation. 

The Veteran testified at the RO before a Veterans Law Judge (VLJ) at a videoconference hearing in February 2008.  A transcript is of record.  In August 2012, the Board informed the Veteran that the VLJ who had conducted the February 2008 hearing had since retired from the Board, and that he had the option of requesting another hearing before a VLJ who would ultimately decide his appeal. See 38 C.F.R. § 20.707 (2013).  The Veteran did not respond. 

This claim was previously before the Board in May 2008 and in August 2011, at which time the Board remanded the matter to the RO (via the Appeals Management Center (AMC)) for additional development.  A review of the record reflects that there has been compliance with the Board's 2008 and 2011 remand directives, and no further action is required at this time.  See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

By the way of a June 2012 rating decision, the AMC increased the assigned evaluation for lumbar spine disability from 10 to 40 percent disabling, effective from May 28, 2009. 

The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence.


FINDINGS OF FACT

In an August 2012 written statement, the Veteran expressed his desire to withdraw from appellate review his claim for entitlement to increased evaluations for lumbar spine disability.


CONCLUSIONS OF LAW

The criteria for a withdrawal of the Veteran's substantive appeal on the issue of entitlement to increased evaluations for lumbar spine disability have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.200, 20.202, 20.204(b), (c) (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board notes the ability to 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 Veteran or by his authorized representative.  Id. 

The record reflects that, in an August 2012 written statement, the Veteran expressed his desire to withdraw the claim from appellate review.  The Board finds that this statement qualifies as a valid withdrawal of the issue.  See 38 C.F.R. § 20.204 (b).

In view of the Veteran's expressed desires, the Board concludes that further action with regard to this issue is not appropriate.  The Board does not have jurisdiction over the withdrawn claim.  As such, the issue is dismissed.



ORDER

The appeal, concerning entitlement to an evaluation in excess of 10 percent prior to May 28, 2009, and thereafter in excess of 40 percent, for lumbar spine disability, is dismissed.



____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs