Citation Nr: 1640239 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 12-22 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to a rating in excess of 60 percent prior to May 13, 2015, for degenerative disc disease and disc herniation and surgery at L5-S1, with mild residual transient left leg radiculopathy. 2. Entitlement to a rating in excess of 40 percent from May 13, 2015, for degenerative disc disease and disc herniation and surgery at L5-S1, to include whether the replacement of the 60 percent rating for the Veteran's lumbosacral spine disability with a 40 percent rating, (with separate 40 percent ratings for right and left lower extremity radiculopathy), was proper. 3. Entitlement to a rating in excess of 40 percent for left lower extremity radiculopathy. 4. Entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 28, 2009. REPRESENTATION Veteran represented by: New Hampshire State Office of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in Manchester, New Hampshire. The Veteran provided testimony at a hearing before a Decision Review Officer in July 2012, and at a video conference hearing before a Veterans Law Judge of the Board (VLJ) in March 2013. Transcripts of the hearings are of record. The VLJ who held the March 2013 hearing is no longer employed by the Board. The Veteran did not respond to an August 2016 clarification letter as to whether he wanted a hearing before another VLJ. As such, the Board assumes that the Veteran does not want another Board hearing; therefore, the Board may proceed with adjudication of the issues on appeal. In January 2015, the Board dismissed the Veteran's claim for service connection for fibromyalgia. This Board decision also remanded the Veteran's claim for an increased rating for a lumbosacral spine/radiculopathy disability and his claim for a total disability rating based on individual unemployability (TDIU). A June 2015 rating decision granted the Veteran TDIU, effective April 8, 2011 and indicated to the Veteran that this was a complete grant of the benefit sought on appeal. However, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) (per curiam), TDIU is part of the increased rating claim which remains before the Board. In that rating decision, the RO also assigned separate 40 percent disability ratings for lumbar radiculopathy of the left lower extremity and the right lower extremity, effective May 13, 2015. The RO informed the Veteran in the rating decision that the decision pertaining to the radiculopathy of each lower extremity was ancillary to and inextricably intertwined with the lumbar spine issue on appeal. He was also informed that "[n]o further action is required." Accordingly, those matters are also before the Board on appeal. In October 2015, the Board again remanded the Veteran's case. In a March 2016 rating decision, the RO granted entitlement to TDIU effective June 28, 2009. FINDING OF FACT In May 2016, prior to the promulgation of a decision by the Board, the Veteran submitted correspondence stating that he wished to withdraw from appellate review his claims of entitlement to increased ratings for degenerative disc disease and disc herniation and surgery at L5-S1, left lower extremity and right lower extremity radiculopathy, and entitlement to a TDIU prior to June 28, 2009. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to a rating in excess of 60 percent prior to May 13, 2015, for degenerative disc disease and disc herniation and surgery at L5-S1, with mild residual transient left leg radiculopathy have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. The criteria for withdrawal of the claim of entitlement to a rating in excess of 40 percent from May 13, 2015, for degenerative disc disease and disc herniation and surgery at L5-S1, to include whether the replacement of the 60 percent rating for the Veteran's lumbosacral spine disability with a 40 percent rating, (with separate 40 percent ratings for right and left lower extremity radiculopathy), was proper have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 3. The criteria for withdrawal of the claim of entitlement to a rating in excess of 40 percent for left lower extremity radiculopathy have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 4. The criteria for withdrawal of the claim of entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 5. The criteria for withdrawal of the claim of entitlement to a TDIU prior to June 28, 2009 have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS A substantive appeal may be withdrawn in writing, by the Veteran or his authorized representative, at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. In May 2016, prior to the Board promulgating a decision, the Veteran submitted correspondence stating that he wished to stop all current appeals as he was satisfied with the March 2016 rating decision, and that he did not feel that any further appeals were necessary. Therefore, the Board finds that the May 2016 correspondence satisfies the requirements for withdrawal of a substantive appeal as to the issues of entitlement to increased ratings for degenerative disc disease and disc herniation and surgery at L5-S1, left lower extremity and right lower extremity radiculopathy, and entitlement to a TDIU prior to June 28, 2009. 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(d)(5) (West 2014); 38 C.F.R. § 20.202 (2015). As the pertinent criteria for withdrawal of the issues of entitlement to increased ratings for degenerative disc disease and disc herniation and surgery at L5-S1, left lower extremity and right lower extremity radiculopathy, and entitlement to a TDIU prior to June 28, 2009 have been satisfied, there remain no allegations of errors of fact or law for appellate consideration with respect to those issues. The Board consequently does not have jurisdiction to review them, and they are dismissed. ORDER The appeal as to the issue of entitlement to a rating in excess of 60 percent prior to May 13, 2015, for degenerative disc disease and disc herniation and surgery at L5-S1, with mild residual transient left leg radiculopathy is dismissed. The appeal as to the issue of entitlement to a rating in excess of 40 percent from May 13, 2015, for degenerative disc disease and disc herniation and surgery at L5-S1, to include whether the replacement of the 60 percent rating for the Veteran's lumbosacral spine disability with a 40 percent rating, (with separate 40 percent ratings for right and left lower extremity radiculopathy), was proper is dismissed. The appeal as to the issue of entitlement to a rating in excess of 40 percent for left lower extremity radiculopathy is dismissed. The appeal as to the issue of entitlement to a rating in excess of 40 percent for right lower extremity radiculopathy is dismissed. The appeal as to the issue of entitlement to a TDIU prior to June 28, 2009 is dismissed. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs