Citation Nr: 1643479	
Decision Date: 11/15/16    Archive Date: 12/01/16

DOCKET NO.  09-00 262	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Since March 21, 2012, entitlement to a disability rating higher than 40 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD)
of the lumbar spine.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. B. Mays, Counsel





INTRODUCTION

The Veteran served on active duty from December 1985 to January 2007. 

This appeal comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that granted service connection for DDD and DJD of the lumbar spine, and assigned an initial noncompensable disability rating, effective from February 1, 2007. 

In a subsequent February 2009 rating decision, the Veteran's service-connected lumbar spine disability rating was increased to 10 percent, effective from February 1, 2007.  Thereafter, in May 2012, the RO again increased the Veteran's lumbar spine disability to 40 percent, effective March 21, 2012. 

In November 2013, the Board denied an initial disability rating in excess of 10 percent prior to March 21, 2012, for lumbar spine disability, and remanded for further development the issue of entitlement to a disability rating in excess of 40 percent for the lumbar spine disability thereafter.  In February 2016, the Board again remanded the issue for further development.

FINDING OF FACT

In October 2016, prior to promulgation of a decision in the appeal, the Veteran withdrew his appeal seeking a rating higher than 40 percent for his service-connected lumbar spine disability.

CONCLUSION OF LAW

The criteria are met for withdrawal of a substantive appeal by the Veteran seeking a rating higher than 40 percent for his service-connected lumbar spine disability.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

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.  A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

The Veteran in this case perfected an appeal from an April 2007 rating decision which, as relevant here, granted service connection for a lumbar spine disability.  As noted in the introduction, he is currently in receipt of a 40 percent rating from March 21, 2012, for his lumbar spine disability, and the issue of whether he is entitled to higher rating is the sole issue remaining in appellate status.    

However, prior to the promulgation of a decision in this appeal, the Veteran indicated that he wished to withdraw his claim seeking a rating higher than 40 percent for his lumbar spine disability.  In this regard, when choosing to forgo a scheduled May 2016 VA spine examination, he told VA personnel that he was withdrawing his claim.  His desire to withdraw this claim was later confirmed by his representative via telephone conversation, and this conversation between the Veteran and his representative was reduced to writing in October 2016 correspondence and sent to the Board.  Once the Board received the Veteran's representative's statement withdrawing the claim, there remained no allegations of error of fact or law for appellate consideration.  The Board does not have jurisdiction to review the withdrawn issue and it is therefore dismissed.  38 U.S.C.A. § 7105 (d) (5) (West 2014).
ORDER

The appeal seeking a disability rating higher than 40 percent for lumbar spine disability since March 21, 2012, is dismissed.

____________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs