Citation Nr: 1804301 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 08-21 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to ratings for a low back disability in excess of 20 percent from August 18, 2005, and in excess of 40 percent from June 15, 2011. 2. Entitlement to a rating in excess of 10 percent for dermatophytosis of both feet. 3. Entitlement to a compensable rating for onychomycosis (nail fungus). REPRESENTATION Veteran represented by: Joseph R. Moore, Attorney ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas. Issues on Appeal A May 2007 rating decision denied a compensable rating for a low back disability and a rating in excess of 10 percent for dermatophytosis. A December 2007 rating decision increased the rating for the low back disability to 20 percent, effective March 18, 2006. In May 2011, the Board remanded the issues of increased ratings for dermatophytosis and a low back disability for further development. Thereafter, an August 2012 rating decision increased the rating for the low back disability to 40 percent, effective June 15, 2011. In an April 2013 decision, the Board, in pertinent part, granted an earlier effective date of August 18, 2005, for the 20 percent rating for the low back disability; denied a rating in excess of 20 percent prior to June 15, 2011; and denied a rating in excess of 40 percent from that date. The Board also denied a rating in excess of 10 percent for dermatophytosis of the feet. The Veteran appealed the unfavorable portions of the Board's April 2013 decision to the Court resulting in an April 2014 Joint Motion for Partial Remand (JMR) by the parties. A May 2014 Court Order remanded the matters for compliance with instructions in the JMR. In August 2014, the Board remanded the issues for further development. While the case was in remand status, the Veteran perfected an appeal of a December 2012 rating decision by the Appeals Management Center (AMC), which granted entitlement to service connection for onychomycosis and assigned a noncompensable rating. See January 2014 Notice of Disagreement; April 2016 Statement of the Case; June 2016 Substantive Appeal. In January 2017, the Board remanded the issue of increased ratings for a low back disability for further development. The Board also stayed action on the issues of increased ratings for dermatophytosis of the feet and onychomycosis pending resolution in the matter of Johnson v. McDonald, 27 Vet. App. 497 (2016). In July 2017, the Federal Circuit issued an opinion in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), reversing the decision of the U.S. Court of Appeals for Veterans Claims (Court). As such, the stay on affected appeals was lifted, and these issues are now ready for adjudication by the Board. Issues No Longer on Appeal In April 2013, the Board remanded the issue of entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), for additional development. In August 2014, the Board remanded the matter of entitlement to a total disability rating based on individual unemployability (TDIU) for further development. Thereafter, a February 2016 rating decision granted entitlement to service connection for depressive disorder and entitlement to a TDIU, both effective June 20, 2011. In November 2016, the Veteran filed a notice of disagreement with the effective date assigned for the grant of service connection for depressive disorder and for the grant of a TDIU. Specifically, the Veteran asserted that the effective date for both should be August 18, 2006. Thereafter, in a January 2018 rating decision, the RO granted an earlier effective date of August 18, 2006 for the grant of service connection for depressive disorder and the grant of a TDIU. As this action constitutes a full grant of the benefits sought on appeal, those issues are no longer on appeal. FINDINGS OF FACT 1. In November 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issue of entitlement to ratings for a low back disability in excess of 20 percent from August 18, 2005, and in excess of 40 percent from June 15, 2011. 2. In November 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issue of entitlement to a rating in excess of 10 percent for dermatophytosis of both feet. 3. In November 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issue of entitlement to a compensable rating for onychomycosis (nail fungus). CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to ratings for a low back disability in excess of 20 percent from August 18, 2005, and in excess of 40 percent from June 15, 2011, by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of the appeal of the issue of entitlement to a rating in excess of 10 percent for dermatophytosis of both feet by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 3. The criteria for withdrawal of the appeal of the issue of entitlement to a compensable rating for onychomycosis (nail fungus) by the Veteran 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 CONCLUSIONS 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. 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 the present case, the Veteran withdrew the issues currently on appeal. Specifically, in a November 2017 letter, the Veteran's representative informed the Board of the Veteran's desire to withdraw his appeal as to the issues of increased ratings for a low back disability, dermatophytosis of both feet, and onychomycosis. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. ORDER The issue of entitlement to ratings for a low back disability in excess of 20 percent from August 18, 2005, and in excess of 40 percent from June 15, 2011, is dismissed. The issue of entitlement to a rating in excess of 10 percent for dermatophytosis of both feet is dismissed. The issue of entitlement to a compensable rating for onychomycosis (nail fungus) is dismissed. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs