Citation Nr: 1752013 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-17 347 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to an initial rating in excess of 20 percent for multilevel degenerative disk disease with disk herniation at L4-5 and spinal canal stenosis at L4-5 and L3-4 levels. 2. Entitlement to an increased rating in excess of 20 percent for lower right extremity radiculopathy. 3. Entitlement to an increased rating in excess of 20 percent for lower left extremity radiculopathy. 4. Entitlement to an earlier effective date prior to July 17, 2014 for the establishment of service connection for bilateral lower extremity radiculopathy. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD S. Freeman, Associate Counsel INTRODUCTION The Veteran had active service from August 1967 to March 1969 and from November 1990 to April 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, and a January 2015 rating decision by the VA Appeals Management Center. The Board remanded the matter of entitlement to an increased initial rating for the service-connected lumbar spine disability in June 2014 and once again in November 2016. In May 2014, the Veteran and his daughter testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. During the pendency of the Veteran's appeal, a claim for entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities was considered and denied by the RO in a July 2016 rating decision. To date, the Veteran has not appealed that denial. Furthermore, the Board finds that the issue of entitlement to a TDIU has not been raised by the record in connection with the Veteran's appeal for increased initial ratings for the service-connected lumbar spine disability and radiculopathy of the bilateral lower extremities since the July 2016 rating decision. Specifically, since the July 2016 rating decision, the Veteran has not contended, and the record do not show that those disabilities render him unable to secure or follow a substantially gainful occupation. Accordingly, the Board does not have jurisdiction over a TDIU claim and need not address such a claim further herein. FINDINGS OF FACT 1. In October 2017, prior to promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the claims of entitlement to increased ratings in excess of 20 percent for multilevel degenerative disk disease with disk herniation at L4-5 and spinal canal stenosis at L4-5 and L3-4 levels, lower right extremity radiculopathy, and lower left radiculopathy. 2 In October 2017, prior to promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw the claim of entitlement to an earlier effective date prior to July 17, 2014 for the establishment of service connection for bilateral lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to an increased rating for multilevel degenerative disk disease with disk herniation at L4-5 and spinal canal stenosis at L4-5 and L3-4 levels have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to an increased rating for a lower right extremity radiculopathy have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to an increased rating for a lower right extremity radiculopathy have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). 4. The criteria for withdrawal of an appeal by the appellant on the issue of entitlement to an earlier effective date prior to July 17, 2014 for the establishment of service connection for bilateral lower extremity radiculopathy have been met. 38 U.S.C.A. § 7105 (b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdraw 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. 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. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In October 2017 correspondence, the Veteran indicated that he wished to withdraw the claims of entitlement to increased rating in excess of 20 percent for multilevel degenerative disk disease with disk herniation at L4-5 and spinal canal stenosis at L4-5 and L3-4 levels, lower right extremity radiculopathy, lower left radiculopathy, and the claim for earlier effective date prior to July 17, 2014 for the establishment of service connection for bilateral lower extremity radiculopathy. Thus, there remain no allegations of errors of fact or law for appellate consideration on those four issues. Accordingly, the Board does not have jurisdiction to review the appeals on those issues, and the appeal as to those four issues is dismissed. ORDER The appeal concerning the issues of entitlement to a rating in excess of 20 percent for multilevel degenerative disk disease with disk herniation at L4-5 and spinal canal stenosis at L4-5 and L3-4 levels, lower right extremity radiculopathy, and lower left radiculopathy is dismissed. The appeal concerning the issue for entitlement to an earlier effective date prior to July 17, 2014 for the establishment of bilateral lower extremity radiculopathy is dismissed. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs