Citation Nr: 20047167 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 16-25 443 DATE: July 14, 2020 ISSUES 1. Entitlement to an increased rating for bladder dysfunction, currently evaluated as 20 percent disabling from August 24, 2012 and 40 percent disabling from June 15, 2015. 2. Entitlement to an increased rating for lumbosacral spine disease, currently evaluated as 40 percent disabling. 3. Entitlement to an increased rating for status post left elbow surgery, currently evaluated as 10 percent disabling. 4. Entitlement to an increased rating for right lower extremity radiculopathy, currently evaluated as 10 percent disabling. 5. Entitlement to an increased rating for left elbow surgical scar, currently evaluated as zero percent disabling. 6. Entitlement to a total disability based on individual unemployability (TDIU). ORDER The appeal on the issue of entitlement to an increased rating for bladder dysfunction, currently evaluated as 20 percent disabling from August 24, 2012 and 40 percent disabling from June 15, 2015 is dismissed. The appeal on the issue of entitlement to an increased rating for lumbosacral spine disease, currently evaluated as 40 percent disabling is dismissed. The appeal on the issue of entitlement to an increased rating for status post left elbow surgery, currently evaluated as 10 percent disabling is dismissed. The appeal on the issue of entitlement to an increased rating for right lower extremity radiculopathy, currently evaluated as 10 percent disabling is dismissed. The appeal on the issue of entitlement to an increased rating for left elbow surgical scar, currently evaluated as zero percent disabling is dismissed. The appeal on the issue of entitlement to a total disability based on individual unemployability (TDIU) is dismissed. FINDINGS OF FACT 1. In a May 9, 2019 VA 21-4138 Statement in Support of Claim, the Veteran informed the Board that he wished to withdraw his appeal related to entitlement to an increased rating for bladder dysfunction, currently evaluated as 20 percent disabling from August 24, 2012 and 40 percent disabling from June 15, 2015. 2. In a May 9, 2019 VA 21-4138 Statement in Support of Claim, the Veteran informed the Board that he wished to withdraw his appeal related to entitlement to an increased rating for lumbosacral spine disease, currently evaluated as 40 percent disabling. 3. In a May 9, 2019 VA 21-4138 Statement in Support of Claim, the Veteran informed the Board that he wished to withdraw his appeal related to entitlement to an increased rating for status post left elbow surgery, currently evaluated as 10 percent disabling. 4. In a May 9, 2019 VA 21-4138 Statement in Support of Claim, the Veteran informed the Board that he wished to withdraw his appeal related to entitlement to an increased rating for right lower extremity radiculopathy, currently evaluated as 10 percent disabling. 5. In a May 9, 2019 VA 21-4138 Statement in Support of Claim, the Veteran informed the Board that he wished to withdraw his appeal related to entitlement to an increased rating for left elbow surgical scar, currently evaluated as zero percent disabling. 6. In a May 9, 2019 VA 21-4138 Statement in Support of Claim, the Veteran informed the Board that he wished to withdraw his appeal related to entitlement to a total disability based on individual unemployability (TDIU). CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an increased rating for bladder dysfunction, currently evaluated as 20 percent disabling from August 24, 2012 and 40 percent disabling from June 15, 2015 by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 2. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an increased rating for lumbosacral spine disease, currently evaluated as 40 percent disabling by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 3. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an increased rating for status post left elbow surgery, currently evaluated as 10 percent disabling by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 4. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an increased rating for right lower extremity radiculopathy, currently evaluated as 10 percent disabling by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 5. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an increased rating for left elbow surgical scar, currently evaluated as zero percent disabling by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. 6. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to a total disability based on individual unemployability (TDIU) by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to July 1989. This matter is before the Board of Veterans Appeals (Board) on appeal from a July 2013 Rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. Jurisdiction is held by the RO in Seattle, WA. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). Importantly, in a May 9, 2019 VA 21-4138 Statement in Support of Claim, the Veteran withdrew his appeals currently before the Board. This cancelled his hearing scheduled for that same day. The Veteran has not specifically requested a rescheduling of the cancelled hearing. The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). Withdrawn Appeals 1. Entitlement to an increased rating for bladder dysfunction, currently evaluated as 20 percent disabling from August 24, 2012 and 40 percent disabling from June 15, 2015 2. Entitlement to an increased rating for lumbosacral spine disease, currently evaluated as 40 percent disabling 3. Entitlement to an increased rating for status post left elbow surgery, currently evaluated as 10 percent disabling 4. Entitlement to an increased rating for right lower extremity radiculopathy, currently evaluated as 10 percent disabling 5. Entitlement to an increased rating for left elbow surgical scar, currently evaluated as zero percent disabling 6. Entitlement to a total disability based on individual unemployability (TDIU) The Board incorporates its discussion from the sections above by reference. Only an appellant, or an appellant’s authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 20.204 (a). Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204 (b)(1). The Board of Veterans’ Appeals may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (d)(5). By way of background, an April 1, 2019 BVA letter is of record informing the Veteran of a May 9, 2020 at the Seattle RO before a VLJ. That same day, the Veteran submitted a May 9, 2019 VA 21-4138 Statement in Support of Claim. The Veteran informed the Board that he wished to withdraw his appeals currently before the Board, with a scheduled hearing that same day. The Veteran wrote, “I am wishing to withdraw all 6 issues on appeal at the BVA please and thank you.” The Veteran signed the document, and dated it May 9, 2019. This withdrawal extinguished his hearing request, as confirmed by VA administrative labeling of the case. The document references the six issues on appeal before the Board. Accordingly, the Board does not have jurisdiction to review these issues on appeal, and they are dismissed. The Board observes that the Veteran simultaneously filed a new May 9, 2019 VA 21-0966 Intent to File for new claims. The following day, a VA 27-0820 Report of General Information received on May 10, 2019 shows that the Veteran was scheduled for a May 9 hearing and would attend it, however this was received by VA the day after the cancelled hearing. This Report was based upon a documented phone call conversation, and is possibly missing the word “not” in the sentence. “Today the veteran confirmed that he would be attending his scheduled hearing.” Later, the October 15, 2019 Informal Hearing Presentation (IHP) lists the issues on appeal and is vague. Under the argument heading, it shows, “Appellant has requested a hearing before the Board. We will provide oral arguments with applicable VA laws and regulations at the scheduled hearing.” However, this does not reflect a review of the claims file as the hearing request had been cancelled months prior, in writing, along with withdrawal of the appeals. Additionally, as advised by the Board’s administrative staff, no other request to reschedule the cancelled hearing has been received. It was cancelled in May 2019. Therefore, these issues on appeal are dismissed. (Continued on the next page.) Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The benefit of the doubt rule is not for application. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Bodi, 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.