Citation Nr: 1802635 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-04 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected lumbar degenerative disc disease (DDD) and DJD prior to December 7, 2013, and in excess of 20 percent thereafter. 2. Entitlement to a rating in excess of 20 percent for service-connected cervical spine injury with DDD, left radicular pain, and neuropathy of the left upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to October 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which-in pertinent part, continued ratings of 20 percent and 10 percent for the cervical and lumbar spine disabilities respectively; denied service connection for a right knee disorder, and denied a reopening of the left foot claim. The Veteran perfected an appeal of those determinations. In a February 2014 rating decision, an RO decision review officer granted an increased rating for the lumbar spine DDD/DJD from 10 to 20 percent; and, granted service connection for associated lumbar spine radiculopathy, LLE, with an initial rating of 10 percent, both effective December 7, 2013. (02/03/2014 Rating Decision-Narrative) The Veteran continued his appeal. (02/26/2014 Correspondence) See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is presumed to be seeking the highest possible rating unless he expressly indicates otherwise). The Veteran appeared at a Board hearing via video conference in February 2015 before a Veterans Law Judge (VLJ) who is no longer at the Board. The Board informed the Veteran of this fact in a June 2017 letter, and inquired if he desired another hearing. See 38 C.F.R. § 20.707 (2017). The letter also informed the Veteran that if no response was received within 30 days of the date of the letter, he would be deemed to have waived another hearing. (07/07/2017 Hearing Request) To date no response has been received. Hence, the Veteran is deemed to have waived another hearing. A transcript of the February 2015 hearing testimony is in the claims file. In a decision dated in August 2015, the Board reopened the left foot claim and remanded it to the AOJ for additional development on the merits. The Board also remanded the other claims. While the case was on remand, in a July 2016 rating decision, the Appeals Management Center (AMC), Washington, DC, granted service connection for the left foot hallux valgus and right knee DJD and assigned an initial ratings of 10 percent each, both effective January 22, 2009; increased the LLE initial rating from 10 to 20 percent; and, granted a separated rating of 30 percent for cervical spine-associated LUE radiculopathy, both effective July 6, 2016. (07/23/2016 Rating Decision-Narrative) In light of the grants of service connection for the left foot and right knee disorders, and the Veteran's subsequent actions set forth below, the issues of service connection are no longer before the Board. FINDINGS OF FACT 1. A July 2016 rating decision granted service connection for the left foot hallux valgus and right knee DJD and assigned an initial ratings of 10 percent each, both effective January 22, 2009; increased the LLE initial rating from 10 to 20 percent; and, granted a separated rating of 30 percent for cervical spine-associated LUE radiculopathy, both effective July 6, 2016. 2. In an October 2016 communication, it was expressed that the Veteran was satisfied with the benefits and increases granted and did not want to pursue his appeal any further. CONCLUSION OF LAW The criteria for dismissal of an appeal have been met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 (2012). 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 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. Discussion The Board has set forth the actions of the AOJ in the July 2016 rating decision. After receipt of notice of that decision, in an October 2016 communication via his representative, the Veteran informed VA that he was satisfied with the actions in that rating decision, and that he did not wish to pursue the appeal further. (10/20/2016 VA Form 21-4138, p. 3; see also 07/07/2017 Third Party Correspondence (confirming the withdrawal)) A veteran may indicate he is content with a certain rating, even if less than the maximum possible rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In light of the Veteran's action, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to further review the appeal and will dismiss it. (CONTINUED ON THE NEXT PAGE) ORDER The appeal of the issue of entitlement to a rating in excess of 10 percent for service-connected lumbar DDD/DJD prior to December 7, 2013, and in excess of 20 percent thereafter is dismissed. The appeal of the issue of entitlement to a rating in excess of 20 percent for service-connected cervical spine injury with DDD, left radicular pain, and neuropathy of the LUE, is dismissed. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs