Citation Nr: 1754701 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 11-16 557 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, left lower extremity. 2. Entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, right lower extremity. 3. Entitlement to an initial evaluation in excess of 10 percent prior to September 24, 2009; in excess of 20 percent from September 24, 2009 through March 4, 2013; and in excess of 40 percent thereafter for lumbosacral strain with degenerative disc disease (DDD) (low back disability), to include whether referral for extraschedular consideration is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R.M.K., Counsel INTRODUCTION The Veteran served on active duty from June 1997 to June 2001. This case comes on appeal before the Board of Veterans' Appeals (Board) from a November 2007 decision of the Appeals Management Center in Washington, D.C., which in pertinent part granted service connection for a low back disability. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge in February 2012; the hearing transcript is of record. This case is also on appeal before the Board from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota, that granted service connection for right and left lower extremity sciatic radiculopathy and assigned separate 10 percent ratings from August 17, 2010. Jurisdiction over this appeal is with the RO in Sioux Falls, South Dakota. In a subsequent August 2017 rating decision, the separate evaluations of right and left lower extremity sciatic radiculopathy was increased to 20 percent effective August 16, 2010. In this rating decision, entitlement to individual unemployability due to service-connected disability (TDIU) was also granted effective July 25, 2012. Given that the disposition in this decision was a complete grant of the benefit sought, the issue of TDIU is not before the Board. FINDINGS OF FACT 1. In September 2017 correspondence, as well as prior to the promulgation of a decision in the present appeal, the Veteran withdrew his Substantive Appeal with respect to the issue of entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, left lower extremity. 2. In September 2017 correspondence, as well as prior to the promulgation of a decision in the present appeal, the Veteran withdrew his Substantive Appeal with respect to the issue of entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, right lower extremity. 3. In September 2017 correspondence, as well as prior to the promulgation of a decision in the present appeal, the Veteran withdrew his Substantive Appeal with respect to an initial evaluation in excess of 10 percent prior to September 24, 2009; in excess of 20 percent from September 24, 2009 through March 4, 2013; and in excess of 40 percent thereafter for a low back disability, to include whether referral for extraschedular consideration is warranted. CONCLUSIONS OF LAW 1. With respect to the issue of entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, left lower extremity, the criteria for withdrawal of the Veteran's Substantive Appeal have been met. 38 U.S.C.A. § 7105 (b) (2), (d) (5) (West 2014); 38 C.F.R. § 20.204 (2017). 2. With respect to the issue of entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, right lower extremity, the criteria for withdrawal of the Veteran's Substantive Appeal have been met. 38 U.S.C.A. § 7105 (b) (2), (d) (5) (West 2014); 38 C.F.R. § 20.204 (2017). 3. With respect to the issue of entitlement to an initial evaluation in excess of 10 percent prior to September 24, 2009; in excess of 20 percent from September 24, 2009 through March 4, 2013; and in excess of 40 percent thereafter for a low back disability, to include whether referral for extraschedular consideration is warranted, the criteria for withdrawal of the Veteran's Substantive Appeal 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 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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (2016). Withdrawal may be made by the appellant or by his or her authorized representative. Id. As reflected in September 2017 correspondence, the appellant withdrew his appeal with respect to the claims of entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, left lower extremity; entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, right lower extremity; and entitlement to an initial evaluation in excess of 10 percent prior to September 24, 2009; in excess of 20 percent from September 24, 2009 through March 4, 2013; and in excess of 40 percent thereafter for a low back disability, to include whether referral for extraschedular consideration is warranted. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to these issues. Accordingly, the Board does not have jurisdiction to review the appeal with respect to thereto and the appeal thereof is therefore dismissed. ORDER The appeal is dismissed with respect to the claim of entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, left lower extremity. The appeal is dismissed with respect to the claim of entitlement to an initial evaluation in excess of 10 percent prior to August 16, 2010, and in excess of 20 percent thereafter for sciatica, right lower extremity. The appeal is dismissed with respect to the claim of entitlement to an initial evaluation in excess of 10 percent prior to September 24, 2009; in excess of 20 percent from September 24, 2009 through March 4, 2013; and in excess of 40 percent thereafter for a low back disability, to include whether referral for extraschedular consideration is warranted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs