Citation Nr: 20007480 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 13-35 627 DATE: January 30, 2020 ORDER Entitlement to an initial disability rating higher than 30 percent for degenerative arthritis of the cervical spine, intervertebral disc syndrome, strain of muscle, fascia and tendon at neck level, and osteoarthritis is dismissed. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDING OF FACT In December 2019, prior to the promulgation of a decision in the appeal, the Veteran’s attorney submitted a statement on the Veteran’s behalf withdrawing the Veteran’s claims for entitlement to an initial disability rating higher than 30 percent for degenerative arthritis of the cervical spine, intervertebral disc syndrome, strain of muscle, fascia and tendon at neck level, and osteoarthritis, and entitlement to a TDIU. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met with regard to the issues of entitlement to an initial disability rating higher than 30 percent for degenerative arthritis of the cervical spine, intervertebral disc syndrome, strain of muscle, fascia and tendon at neck level, and osteoarthritis, and entitlement to a TDIU. 38 U.S.C. §§ 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.204, 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1996 to July 2001. These matters come before the Board of Veterans Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for cervical sprain with degenerative changes (claimed as nerve damage to the neck) with an evaluation of 30 percent, effective April 5, 2012. The Veteran perfected his appeal in May 2014. In October 2016, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In an October 2017 decision, the Board considered the issue of entitlement to a TDIU as part and parcel of the claim for a higher initial disability rating for cervical sprain with degenerative changes. Rice v. Shinseki, 22 Vet. App. 447 (2009). In that decision, the Board remanded the claims of entitlement to a TDIU and a higher initial disability rating for cervical sprain with degenerative changes for further development. In December 2019, the Veteran’s attorney submitted a letter on behalf of the Veteran pursuant to his request to withdraw any claims currently pending. The only matter on appeal before the Board in December 2019 were claims for entitlement to an initial disability rating higher than 30 percent for degenerative arthritis of the cervical spine, intervertebral disc syndrome, strain of muscle, fascia and tendon at neck level, and osteoarthritis, and entitlement to a TDIU. An appeal may be withdrawn by an appellant or by his representative 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. Except when made on the record at a hearing, appeal withdrawals must be in writing. An appeal withdrawal is effective when received by the RO prior to the appeal being transferred to the Board or when received by the Board before it issues a final decision. 38 C.F.R. § 20.204(b). Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c). The Federal Circuit has not addressed the criteria as to a written request to withdraw a claim. Acree v. O’Rourke, 891 F.3d 1009, 1013, n. 2 (Fed. Cir. 2018) (“Resolution of Acree’s appeal turns on the requirements necessary for an effective oral withdrawal of a claim at a Board hearing. We express no view on the criteria that must be satisfied when a veteran submits a written request to withdraw a claim”). The Court has held that “withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.” Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In December 2019, the Veteran’s attorney submitted a letter on behalf of the Veteran pursuant to his request to withdraw any claims currently pending. The only pending appeal before the Board at that time were claims for entitlement to an initial disability rating higher than 30 percent for degenerative arthritis of the cervical spine, intervertebral disc syndrome, strain of muscle, fascia and tendon at neck level, and osteoarthritis, and entitlement to a TDIU. This specificity reflects an understanding of the consequences of withdrawal, in addition to being explicit and unambiguous. (Continued on the next page)   As the Veteran has validly withdrawn his appeal before the Board for entitlement to an initial disability rating higher than 30 percent for degenerative arthritis of the cervical spine, intervertebral disc syndrome, strain of muscle, fascia and tendon at neck level, and osteoarthritis, and entitlement to a TDIU, there is effectively no longer any remaining allegations of error of fact or law for appellate consideration. 38 U.S.C. § 7105 (d)(5). Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, Associate 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.