Citation Nr: 1808772	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  12-00 369	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to a disability rating in excess of 10 percent for a service-connected cervical spine disability, prior to March 24, 2010, and in excess of 20 percent from July 1, 2010, forward. 

2.  Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 16, 2012.


REPRESENTATION

Veteran represented by:	Michael J. Mooney, attorney


ATTORNEY FOR THE BOARD

S. Reed, Associate Counsel






INTRODUCTION

The Veteran served on active duty from October 1984 to October 1988 and March 1990 to January 1995.  

This case comes before the Board of Veterans' Appeals (the Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

In April 2009, the Veteran filed for an increased rating for his cervical spine disability, that was rated at 10 percent.  The February 2010 rating decision denied the Veteran's claim.  A subsequent December 2010 rating decision granted a temporary total rating due to surgical treatment necessitating convalescence from March 24, 2010 through June 30, 2010, and assigned a 20 percent rating from July 1, 2010, forward.  The Veteran has continued his appeal of this issue.  

The Veteran had also appealed the effective date of an increased rating assigned for radiculopathy of the left upper extremity.  The Veteran had been awarded a 10 percent disability effective March 31, 2010, but asserted the rating should extend back to his April 23, 2009, date of claim.  In August 2017, a rating decision assigned a 20 percent rating from April 23, 2009.  That rating decision constituted a complete grant of the issue of entitlement to an earlier effective date, and the issue is no longer on appeal. 

The Veteran raised the issue of entitlement to a TDIU in the record.  Although the issue was separately adjudicated in an October 2017 rating decision, a claim for entitlement to TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim.  Rice v. Shinseki, 22 Vet. App. 447.  The October 2017 only granted TDIU from November 16, 2012 forward.  Thus, the unadjudicated period, that is prior to November 16, 2012, remains on appeal.

In a January 2018 letter, the Veteran's attorney indicated that the Veteran wished to withdraw all issues pending before the Board. 


FINDINGS OF FACT

During the pendency of the Veteran's appeal, he requested, through his attorney, that he wished to withdraw all issues pending on appeal before the Board.  This request was in writing. 


CONCLUSION OF LAW

1.  The criteria for withdrawal of the claim for entitlement to a disability rating in excess of 10 percent for a service-connected cervical spine disability, prior to March 24, 2010, have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

2.  The criteria for withdrawal of the claim for entitlement to a disability rating in excess of 20 percent from July 1, 2010, forward, have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

3.  The criteria for withdrawal of the claim for entitlement to a TDIU for the period prior to November 16, 2012, have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2014).  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 (2015).  Withdrawal may be made by the Veteran or by his or her authorized representative.  Id. 

In a January 2018 letter, the Veteran's attorney stated that the Veteran wished to withdraw his appeal of all issues on appeal to the Board.  See Hearing Transcript, pg. 4.  Therefore, there remain no allegations of errors of fact or law for appellate consideration.  The Board does not have jurisdiction to review this case, and it is, therefore, dismissed


ORDER

The claim for entitlement to a disability rating in excess of 10 percent for a service-connected cervical spine disability, prior to March 24, 2010, and in excess of 20 percent from July 1, 2010, forward, is dismissed. 

The claim for entitlement to TDIU due to service-connected disabilities prior to November 16, 2012, is dismissed. 


____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs