Citation Nr: 1753078 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 09-36 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased rating for post-operative neuritis of the sural nerve of the left foot (left foot disability), currently rated as 10 percent disabling prior to May 9, 2017, and as 30 percent disabling from that date. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Spitzer, Associate Counsel INTRODUCTION The Veteran had active service from June 1972 to April 1973. He was awarded the National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a May 2005 decision, the Board denied the Veteran's claim of entitlement to an evaluation in excess of 10 percent for postoperative neuritis of the sural nerve of the left foot. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2006 Joint Motion for Remand (JMR) filed by VA and the Veteran's attorney (the parties), the Court was asked to vacate and remand the Board's May 2005 decision. In an October 2006 Court Order the JMR was granted. Thereafter, in a January 2007 decision, the Board again denied the Veteran's claim. The Veteran did not appeal the Board's January 2007 decision to the Court. A subsequent statement received from the Veteran in July 2007 was accepted as a request to reopen his claim of entitlement to a rating higher than 10 percent for postoperative neuritis of the sural nerve of the left foot, which was denied by the RO in the rating decision on appeal. In a December 2011 decision, the Board again denied the Veteran's claim. The Veteran appealed the Board's decision to the Court. In an October 2012 JMR filed by the parties, the Court was asked to vacate and remand the Board's December 2011 decision. By a November 2012 Court Order the JMR was granted. In June 2013, the Board remanded the case for further development. In June 2016 the Board remanded the case to schedule the Veteran for a videoconference hearing before a Veterans Law Judge (VLJ). In October 2016 the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of the hearing is of record. The Board again remanded the case in February 2017. In light of the Veteran's desire to withdraw his appeal, no discussion of the RO's compliance with the prior remand directives is required. A June 2017 rating decision granted a 30 percent rating for the left foot disability effective from May 9, 2017. The Board notes that following the June 2017 rating decision, the Veteran submitted a notice of disagreement in August 2017 stating that he desired an effective date of June 1, 1987 for the grant of service connection. However, such a claim of entitlement to an earlier effective date is not available under VA law. In this case, the January 2007 Board decision rendered an April 2000 rating decision, which granted service connection for the left foot disability and assigned an effective date in November 1991, to be final. Once a rating determination that establishes an effective date becomes final, the only way that a decision may be revised is if it contains clear and unmistakable error. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). Any other result would vitiate the rule of finality. Id. In other words, there can be no "freestanding" claim of entitlement to an earlier effective date. Id. While the Board sympathizes with the Veteran's assertions, as they do not present a legal basis for which relief may be granted, no further action is required. FINDING OF FACT In July 2017, prior to the promulgation of a decision by the Board, the Veteran submitted correspondence stating that he wished to withdraw from appellate review his claim of entitlement to an increased rating for the service-connected left foot disability. CONCLUSION OF LAW The criteria for withdrawal of the claim of entitlement to an increased rating for the left foot disability have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION 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 July 2017, prior to the Board promulgating a decision, the Veteran submitted correspondence stating that he wanted no more appeals and was happy with VA's decision. He subsequently submitted an appeals satisfaction notice stating that he was satisfied and wished to withdraw all remaining issues associated with this appeal. Therefore, the Board finds that the July 2017 correspondence satisfies the criteria for withdrawal of a substantive appeal as to the issue of entitlement to an increased rating for the left foot disability. 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. § 7105(d)(5) (2012); 38 C.F.R. § 20.202 (2017). As the pertinent criteria for withdrawal of the issue of entitlement to an increased rating for the left foot disability have been satisfied, there remain no allegations of errors of fact or law for appellate consideration with respect to that issue. The Board consequently does not have jurisdiction to review it, and it is dismissed. ORDER The appeal as to the issue of entitlement to an increased rating for post-operative neuritis of the sural nerve of the left foot, currently rated as 10 percent disabling prior to May 9, 2017, and as 30 percent disabling from that date, is dismissed. ____________________________________________ S. C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs