Citation Nr: 20004740 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 18-49 150 DATE: January 21, 2020 ORDER The appeal as to the issue of entitlement to a rating in excess of 40 percent for lumbar spine disability is dismissed. The appeal as to the issue of entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve is dismissed. The appeal as to the issue of entitlement to an initial compensable rating for residuals of lumbar spine scar is dismissed. The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy of the femoral nerve is dismissed. The appeal as to the issue of entitlement to an effective date earlier than February 7, 2006 for the award of service connection for a lumbar spine disability is dismissed. The appeal as to the issue of entitlement to an effective date earlier than November 17, 2006 for the award of service connection for left lower extremity radiculopathy of the sciatic nerve is dismissed. The appeal as to the issue of entitlement to an effective date earlier than April 27, 2017 for the award of service connection for left lower extremity radiculopathy of the femoral nerve is dismissed. The appeal as to the issue of entitlement to an effective date earlier than April 27, 2017 for the award of service connection for residuals of lumbar spine scar is dismissed. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an August 28, 2019 statement, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the appeal as to the issue of entitlement to a rating in excess of 40 percent for lumbar spine disability. 2. In an August 28, 2019 statement, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the appeal as to the issue of entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve. 3. In an August 28, 2019 statement, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the appeal as to the issue of entitlement to a rating in excess of an initial compensable rating for residuals of lumbar spine scar. 4. In an August 28, 2019 statement, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the appeal as to the issue of entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy of the femoral nerve. 5. In an August 28, 2019 statement, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the appeal as to the issue of entitlement to an effective date earlier than February 7, 2006 for the award of service connection for a lumbar spine disability. 6. In an August 28, 2019 statement, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the appeal as to the issue of entitlement to an effective date earlier than November 17, 2006 for the award of service connection for left lower extremity radiculopathy of the sciatic nerve. 7. In an August 28, 2019 statement, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the appeal as to the issue of entitlement to an effective date earlier than April 27, 2017 for the award of service connection for left lower extremity radiculopathy of the femoral nerve. 8. In an August 28, 2019 statement, the Veteran’s attorney explicitly, unambiguously, and with a full understanding of the consequences of such action, withdrew the appeal as to the issue of entitlement to an effective date earlier than April 27, 2017 for the award of service connection for residuals of lumbar spine scar. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal regarding entitlement to a rating in excess of 40 percent for lumbar spine disability are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O’Rourke, 891 F.3d (Fed. Cir. 2018). 2. The criteria for withdrawal of an appeal regarding entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O’Rourke, 891 F.3d (Fed. Cir. 2018). 3. The criteria for withdrawal of an appeal regarding entitlement to an initial compensable rating for residuals of lumbar spine scar are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O’Rourke, 891 F.3d (Fed. Cir. 2018). 4. The criteria for withdrawal of an appeal regarding entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy of the femoral nerve are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O’Rourke, 891 F.3d (Fed. Cir. 2018). 5. The criteria for withdrawal of an appeal regarding entitlement to an effective date earlier than February 7, 2006 for the award of service connection for a lumbar spine disability are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O’Rourke, 891 F.3d (Fed. Cir. 2018). 6. The criteria for withdrawal of an appeal regarding entitlement to an effective date earlier than November 17, 2006 for the award of service connection for left lower extremity radiculopathy of the sciatic nerve are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O’Rourke, 891 F.3d (Fed. Cir. 2018). 7. The criteria for withdrawal of an appeal regarding entitlement to an effective date earlier than April 27, 2017 for the award of service connection for left lower extremity radiculopathy of the femoral nerve are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O’Rourke, 891 F.3d (Fed. Cir. 2018). 8. The criteria for withdrawal of an appeal regarding entitlement to an effective date earlier than April 27, 2017 for the award of service connection for residuals of lumbar spine scar are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204; Acree v. O’Rourke, 891 F.3d (Fed. Cir. 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1990 to August 2005 and from November 2005 to February 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s claim for TDIU was previously before the Board in July 2011 as part of the Veteran’s (then) underlying claim for an increased rating for a lumbar spine disability when it was remanded for additional development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In an April 2013 decision, the Board, in part, denied entitlement to service connection for a cervical spine disability, left upper extremity numbness and tingling, a temporary total rating due to convalescence for the cervical spine, and TDIU. The Veteran appealed the Board’s April 2013 decision as to these issues to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2014 Court Memorandum Decision, the Court vacated the Board’s April 2013 decision as to these issues and remanded the matters to the Board for further action. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009). These matters were again remanded by the Board in an April 2016 decision. Thereafter, an August 2018 rating decision granted service connection for a cervical spine disability with a temporary total rating due to convalescence for the cervical spine and service connection for left upper extremity numbness and tingling. The Veteran appealed but did not perfect the appeal of August 2018 rating decision, and thus these matters will not be addressed further. Lastly, the Board notes that the Veteran was previously represented by Attorney Ralph J. Bratch during the course of this appeal. See VA Form 21-22, Appointment of Individual as Claimant’s Representative received September 12, 2018. In a August 2019 letter, after certification of the Veteran’s appeal to the Board, Mr. Bratch attempted to withdraw his services as the Veteran’s representative. A copy of this letter was also sent to the Veteran. The Board notes that the decision to withdraw from representation after certification of an appeal is not a unilateral choice to be exercised at the discretion of the representative. Once an appeal has been certified to the Board, a representative may not withdraw without showing good cause through a written motion. 38 C.F.R. § 20.608. Here, the attorney submitted a withdrawal after certification of the appeal to the Board and did not provide good cause reasons for doing so. Mr. Bratch has not made an appropriate motion to withdraw representation, as prescribed by 38 C.F.R. § 20.608, and the Veteran has not appointed a new representative. Thus, the attorney remains the appointed representative for the purposes of deciding this appeal. Increased Rating 1. The appeal as to the issue of entitlement to a rating in excess of 40 percent for lumbar spine disability. 2. The appeal as to the issue of entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve. 3. The appeal as to the issue of entitlement to an initial compensable rating for residuals of lumbar spine scar. 4. The appeal as to the issue of entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy of the femoral nerve. 5. The appeal as to the issue of entitlement to an effective date earlier than February 7, 2006 for the award of service connection for a lumbar spine disability. 6. The appeal as to the issue of entitlement to an effective date earlier than November 17, 2006 for the award of service connection for left lower extremity radiculopathy of the sciatic nerve. 7. The appeal as to the issue of entitlement to an effective date earlier than April 27, 2017 for the award of service connection for left lower extremity radiculopathy of the femoral nerve. 8. The appeal as to the issue of entitlement to an effective date earlier than April 27, 2017 for the award of service connection for residuals of a scar of the lumbar spine. The Board may dismiss any appeal that fails to allege a 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 issue involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204(a). Withdrawal may be made by the appellant or by his or her authorized representative on the record during a hearing before the Board or in writing. 38 C.F.R. § 20.204(b). Here, the Veteran’s attorney during the appeal withdrew the issues of entitlement to increased ratings for the lumbar spine, left lower extremity radiculopathy of the sciatic and femoral nerve, residuals of a lumbar spine scar, and entitlement to earlier effective dates for the award of service connection for the lumbar spine, radiculopathy of the sciatic and femoral nerve, and residuals of a lumbar spine scar in an August 2019 statement. The Veteran’s attorney clearly identified the withdrawn issues. Thus, the Board finds the Veteran has explicitly, unambiguously, and with a full understanding of the consequences withdrawn these issues. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). As there is no remaining allegation of error of fact or law for appellate consideration regarding these issues, the Board does not have jurisdiction to review them, and they are dismissed. REASONS FOR REMAND 9. Entitlement to TDIU is remanded. Any outstanding VA treatment records should be secured on remand. In addition, the Board notes that in an August 2018 letter, the RO requested information from the Veteran to adjudicate his claim, including a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information). There has been no response to the August 2018 RO letter. To date, there is no VA Form 21-8940 associated with the claims file, and it is unclear when the Veteran was most recently gainfully employed, although it appears it may have been 2011. See February 2011 Travel Board hearing (Veteran testified he was not currently working, but previously worked as a financial analyst as a government contractor). As the period on appeal is lengthy, and to have adequate and complete information, the RO should again request a VA Form 21-8940 and any other necessary information to properly adjudicate his claim for TDIU. The matters are REMANDED for the following action: 1. Send the Veteran an Application for Increased Compensation Based on Unemployability, VA Form 21-8940, and notice of how to substantiate a claim for TDIU. 2. Obtain any outstanding VA treatment records. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Marley, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.