Citation Nr: 1804467	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  13-00 627A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUE

Entitlement to an initial rating in excess of 10 percent prior to June 18, 2014, in excess of 20 percent from June 18, 2014 to April 26, 2017, and in excess of 40 percent thereafter for multilevel degenerative changes of the lumbar spine.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Williams, Counsel 


INTRODUCTION

The Veteran had active duty from May 1972 to June 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted service connection for multilevel degenerative changes of the lumbar spine with lumbar spasm and assigned a 10 percent rating effective June 1, 2009.  Jurisdiction was transferred to the RO in Philadelphia, Pennsylvania.  

The August 2010 rating decision also denied service connection for a cervical spine disability.  While the Veteran expressed disagreement for the denial of service connection for the cervical spine disability, he expressly stated in the January 2013 VA Form 9 that he was only appealing the issue for an increased rating for his lumbar spine disability.  As a result, the issue of entitlement to a service connection for a cervical spine disability is not currently before the Board for appellate review.  See 38 C.F.R. § 20.200 (2017).

In a subsequent July 2015 rating decision, the rating for the lumbar spine disability was increased from 10 percent to 20 percent effective from February 6, 2015.  In a June 2017 rating decision, the RO assigned a 20 percent rating for the Veteran's lumbar spine disability effective from June 18, 2014 and a 40 percent rating effective from April 27, 2017.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). 

The issue of entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) has been raised by the record in a November 2017 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017).



FINDING OF FACT

Prior to the promulgation of the Board's decision on appeal, the Veteran withdrew his appeal as to the issue of entitlement to an initial rating in excess of 10 percent prior to June 18, 2014, in excess of 20 percent from June 18, 2014 to April 26, 2017, and in excess of 40 percent thereafter for multilevel degenerative changes of the lumbar spine.


CONCLUSION OF LAW

The criteria for the withdrawal of the appeal with respect to the issue of entitlement to an initial rating in excess of 10 percent prior to June 18, 2014, in excess of 20 percent from June 18, 2014 to April 26, 2017, and in excess of 40 percent thereafter for multilevel degenerative changes of the lumbar spine have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Generally the Board's jurisdiction is predicated upon an appeal having been filed on an issue or issues in controversy.  38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101.  An appeal consists of a timely filed notice of disagreement (NOD) in writing, and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal.  38 U.S.C.A. § 7105, 38 C.F.R. § 21.200.

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(c).

In the present case, according to a November 2017 statement, the Veteran indicated that he was withdrawing all issues currently on appeal.  Accordingly, there no longer remains any allegation of fact or law for appellate consideration regarding the claim and, consequently, the Board does not have jurisdiction to review the claim.  It is, therefore, dismissed.


ORDER

The appeal as to the issue of entitlement to an initial rating in excess of 10 percent prior to June 18, 2014, in excess of 20 percent from June 18, 2014 to April 26, 2017, and in excess of 40 percent thereafter for multilevel degenerative changes of the lumbar spine is dismissed.




____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs