Citation Nr: 20021759
Decision Date: 03/26/20	Archive Date: 03/26/20

DOCKET NO. 18-20 402
DATE: March 26, 2020

ORDER

Entitlement to restoration of a 30 percent rating for asthma (previously rated as dyspnea on exertion) is dismissed.

FINDING OF FACT

In a written statement received in October 2019, prior to the promulgation of a Board decision in this matter, the Veteran withdrew his appeal for reinstatement of a 30 percent rating for his asthma since this prior rating has been restored.

CONCLUSION OF LAW

The criteria are met for withdrawal of this appeal for restoration of the prior 30 percent rating for the asthma; the Board has no further jurisdiction concerning this claim. 38 U.S.C. §§ 7104, 7105(b)(2)(d)(5); 38 C.F.R. § 20.204.

 

REASONS AND BASES FOR FINDING AND CONCLUSION

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) – which reduced the disability rating for the Veteran’s asthma from 30 to 10 percent as of October 13, 2017. 

Withdrawal of this Appeal 

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. 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. § 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be by the appellant or by his or her authorized representative and must be in writing or on the record at a hearing. 38 C.F.R. § 20.204.

Here, as already alluded to, a November 2017 RO decision reduced the rating for the Veteran’s asthma from 30 to 10 percent as of October 13, 2017.  Another RO decision since issued in May 2018, however, during the pendency of this appeal, increased the rating for his asthma back to the prior 30 percent level – albeit as of February 27, 2018.

In a Statement in Support of Claim (on VA Form 21-4138) since received in October 2019, through his local VFW representative, the Veteran withdrew this appeal concerning the rating for his asthma – indicating he is content with the 30 percent for this service-connected disability that was reinstated effective February 27, 2018.  A Veteran may specify a particular rating that he is satisfied with.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).  Moreover, the Veteran’s co-located representative here in Washington, DC, also more recently affirmed in the February 2020 Informal Hearing Presentation (IHP) that the Veteran is content with restoration of this 30 percent rating; therefore, the representative summarily thanked the Board for its time and consideration in this appeal. 

 

The Veteran’s unequivocal withdrawal of the appeal in this matter was effective upon receipt of his October 2019 VA Form 21-4138. See 38 C.F.R. § 20.204(3). From that point there has been no appeal in this matter for the Board to consider. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this claim and it is summarily dismissed.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Hamm, 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.