Citation Nr: 1642058 Decision Date: 11/01/16 Archive Date: 11/18/16 DOCKET NO. 03-04 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for muscle spasm and weakness, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tracie N. Wesner, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from January 1982 to February 1982 and in the United States Army from June 1988 to June 1992, with service in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2000 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the pendency of the appeal, jurisdiction of this matter was transferred to the RO in Providence, Rhode Island. The Veteran presented sworn testimony at a hearing before one of the undersigned Veterans Law Judges (VLJ) in July 2003. A transcript of that hearing is of record. In March 2004 and July 2006, the Board remanded the claim to the RO for further development. In August 2008, the Board denied the claim of entitlement to service connection for muscle spasms and weakness. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In September 2009, the Court entered a Joint Motion for Remand vacating the Board's denial of this issue. The Board remanded the Veteran's claim for further development in September 2010 and April 2012. In May 2016, the Veteran gave testimony at a second hearing before another of the undersigned VLJs. A transcript of this hearing is of record. At the May 2016 hearing, the Veteran waived his right to testify before a third Veterans Law Judge pursuant to Arneson v. Shinseki, 24 Vet. App. 379 (2011) (a veteran must be provided the opportunity to testify before all members of a Board panel deciding the case). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to an earlier effective date for the grant of service connection for irritable bowel syndrome (IBS), entitlement to an initial rating in excess of 10 percent for IBS, entitlement to special monthly compensation pursuant to 38 U.S.C.A. § 1114(s) and entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to October 1, 2005 are addressed in a separate decision under a separate docket number. FINDING OF FACT In a June 2014 written statement signed by the Veteran and received by VA prior to the issuance of a decision in the appeal, the Veteran knowingly and intentionally withdrew his appellate claim of entitlement to service connection for muscle spasm and weakness, to include on the basis of undiagnosed illness. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met regarding his appellate claim of entitlement to service connection for muscle spasm and weakness, to include on the basis of undiagnosed illness. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The issue for determination in this matter is whether the Veteran withdrew his appeal with regard to the claim of entitlement to service connection for muscle spasm and weakness, to include on the basis of undiagnosed illness. As noted above, the Veteran's claim was last remanded by the Board in April 2012 for further development. After that development had been completed, the RO issued a Supplemental Statement of the Case (SSOC) in May 2014, continuing the denial of service connection for muscle spasm and weakness, to include on the basis of undiagnosed illness. The reason provided for the continued denial of the Veteran's claim was that the evidence shows that the muscle spasm and weakness he experiences is not a separate and distinct disability from his service-connected chronic fatigue syndrome (CFS). The RO noted that the symptoms of muscle spasm and weakness have been considered as part of the Veteran's 100 percent rating for CFS. On June 16, 2014, VA received a written, signed statement from the Veteran withdrawing his appeal with regard to the claim of entitlement service connection for muscle spasm and weakness, to include on the basis of undiagnosed illness. See June 2014 Statement in Support of Claim. The June 2014 written statement specifically states: "I am withdrawing appeal for undiagnosed muscle condition due to pyramiding [with] chronic fatigue syndrome." Correspondence from the Veteran's representative also received in June 2014 confirms the Veteran's intention to withdraw his "appeal for muscle condition." Additionally, the June 2014 Pre-Certification Review (in lieu of VA Form 646) provided by the Veteran's representative does not include the issue of entitlement to service connection for muscle spasm and weakness among the issues identified as being on appeal. The RO closed the appeal with regard to this claim, noting that it had been withdrawn, and the evidence of record shows that the claim was not re-certified to the Board. See June 2014 Certification of Appeal. Moreover, the Veteran did not submit any additional evidence or argument in connection with the claim of entitlement to service connection for muscle spasm and weakness until the May 2016 hearing before the Board, when he identified the issue as one that is currently on appeal and offered additional testimony on the matter. See May 2016 Hr'g Tr. at 2, 5-7. Legal Analysis Despite what transpired at the May 2016 Board hearing with regard to the appellate claim of entitlement to service connection for muscle spasm and weakness, the Board finds that this appellate issue was withdrawn by the Veteran effective June 16, 2014, the date his written statement withdrawing the claim was received by VA. An appeal may be withdrawn by an appellant or his or her authorized representative 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. The regulation provides that except for appeals withdrawn on the record at a hearing, appeal withdrawals must (1) be in writing, and include (2) the name of the veteran, claimant or appellant, (2) the applicable VA file number, and (3) a statement that the appeal is withdrawn. 38 C.F.R. § 20.204(b)(1). Where an appeal involves multiple issues, the withdrawal must also specifically state that the appeal is withdrawn in its entirety, or list the issues withdrawn from the appeal. Id. Until the appeal is transferred to the Board and/or the Veteran is notified of the transfer, appeal withdrawals should be filed with the agency of original jurisdiction (AOJ) and is effective when received by the AOJ. 38 C.F.R. § 20.204(b)(2)-(3). "Withdrawal of an appeal is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Warren v. McDonald, ___ Vet. App. ____ (No. 15-0641, Sept. 14, 2016) (citing DeLisio v. Shinseki, 25 Vet.App. 45, 57 (2011) (additional citations omitted)). In this case, the handwritten statement received by the RO on June 16, 2014, contained all information required by 38 C.F.R. § 20.204(b)(1) to constitute a proper withdrawal of the appellate claim of entitlement to service connection for muscle spasm and weakness, to include on the basis of undiagnosed illness. The Veteran's statement was in writing and included his name, file number and a clear statement identifying the specific appellate issue he was withdrawing. The written statement was also properly submitted to RO/AOJ because the appeal had not been transferred to the Board. Additionally, the Board finds that the facts and circumstances show that the Veteran's withdrawal of his appeal with regard to the issue of entitlement to service connection for muscle spasm and weakness, to include on the basis of undiagnosed illness, was "explicit, unambiguous, and done with a full understanding of the consequences of such action." The June 2014 written statement, on its face, expressed the Veteran's clear and unequivocal intention to withdraw his appeal regarding this claim. He specifically identified the claim being withdrawn as the "appeal for undiagnosed muscle condition," and provided that the reason for the withdrawal was "due to pyramiding [with] chronic fatigue syndrome." This reasoning mirrors the reasoning provided by the RO in the May 2014 SSOC as to why the denial of his claim was continued. See May 2014 SSOC. Correspondence from the Veteran's representative received the same day confirms the Veteran's intention to withdraw his "appeal for muscle condition." The Pre-Certification Review provided by the Veteran's representative and received by the RO on June 18, 2014 did not include the issue of entitlement to service connection for muscle spasm and weakness among the issues identified as being on appeal. Moreover, the Veteran did not submit any additional evidence or argument as to the issue of entitlement to service connection for muscle spasm and weakness for approximately two years, even though he submitted additional evidence with regard to other claims during this time frame. Finally, the Board notes that in July 2009, the Veteran withdrew several issues that were on appeal at that time. See April 2012 Board Decision. These issues were dismissed by the Board in an April 2012 decision, and there is no evidence in the record indicating that the Veteran did not understand the consequences of withdrawing an appeal. Given that the Veteran clearly identified the appellate issue that he wished to withdraw from consideration for the same reason provided by the RO for the continued denial of the claim, took no action to pursue this appellate claim for almost two years and was aware of the consequences of his withdrawal of this appellate claim in light of his past appellate experience, the Board finds that the withdrawal of the Veteran's appeal with regard to the issue of entitlement to service connection for muscle spasm and weakness was explicit, unambiguous and done with a full understanding of the consequences of such action. Consequently, the withdrawal of the appellate claim became effective June 16, 2014, the date the withdrawal was received by the RO/AOJ. 38 C.F.R. § 20.204(b)(3). As the Veteran withdrew his claim of entitlement to service connection for muscle spasm and weakness in June 2014, the Board does not have jurisdiction to review this appellate claim, and it is dismissed. ORDER The appellate claim of entitlement to service connection for muscle spasm and weakness, to include on the basis of undiagnosed illness, is dismissed. CHERYL L. MASON DAVID L. WIGHT Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs