Citation Nr: 21002922 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 09-43 742 DATE: January 19, 2021 ORDER The claim of entitlement to higher disability ratings for osteoarthritis of right hip, to include on an extraschedular basis, is dismissed. The claim of entitlement to increased disability ratings for bilateral flat foot with plantar fasciitis, plantar spurs, and arthritis of first metatarsophalangeal joint, to include on an extraschedular basis, is dismissed. The claim of entitlement to a compensable disability rating for disability manifested by impairment of right thigh is dismissed. The claim of entitlement to a finding of total disability based on individual unemployability (TDIU) is dismissed. FINDING OF FACT In November 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran’s representative that a withdrawal of the appeal for higher disability ratings for osteoarthritis of right hip; for increased ratings for bilateral flat foot with plantar fasciitis, plantar spurs, and arthritis of first metatarsophalangeal joint; for a compensable rating for right thigh impairment; and for TDIU benefits is requested. CONCLUSION OF LAW The criteria for withdrawal of the claims of entitlement to higher disability ratings for osteoarthritis of right hip; for increased ratings for bilateral flat foot with plantar fasciitis, plantar spurs, and arthritis of first metatarsophalangeal joint; for a compensable rating for right thigh impairment; and for TDIU benefits, by the Veteran’s representative have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1981 to June 1987, and from January 1991 to May 1991. She timely appealed these matters from January 2009 and August 2009 rating decisions. In July 2011, the Veteran testified during a Travel Board hearing before a former Veterans Law Judge. In July 2012, the Board remanded the matters for additional development. In a May 2014 decision, the Board of Veterans’ Appeals (Board) denied higher ratings for osteoarthritis of right hip; denied increased ratings for bilateral flat foot with plantar fasciitis; and remanded the matter of entitlement to a TDIU. The Veteran appealed the May 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2014 Joint Motion for Remand, the parties moved to vacate the Board decision to the extent it denied higher ratings for osteoarthritis of right hip and denied increased ratings for bilateral flat foot with plantar fasciitis; and to remand each of the matters to the Board. The Court granted the motion. Thereafter, the appeal was returned to the Board. In February 2015, the Board remanded the matters for further development, consistent with the Joint Motion for Remand. In April 2017, a decision review officer granted service connection and assigned a 0 percent (noncompensable) rating for impairment of right thigh; and granted service connection for arthritis of first metatarsophalangeal joint, as part and parcel of, and incorporated into the rating for bilateral flat foot with plantar fasciitis and plantar spurs. Because higher evaluations are available for each disability throughout the period of the appeal, and the Veteran is presumed to seek the maximum available benefit, each of the matters remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board again remanded the matters in October 2017 and in January 2019. In July 2020, the RO assigned a maximum 50 percent rating for bilateral flat foot with plantar fasciitis, plantar spurs, and arthritis of first metatarsophalangeal joint—effective July 2, 2019. Because higher evaluations are available prior to July 2, 2019, the claim remains on appeal. Id. In September 2020, the Board duly notified the Veteran that the Board no longer employed the Veterans Law Judge that conducted the July 2011 Board hearing and that she had the right to another Board hearing. Subsequently, the Veteran cancelled a virtual tele-hearing scheduled for December 10, 2020. Dismissal The Board may dismiss any appeal which 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. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.205. In the present case, the Board was notified by correspondence from the Veteran’s representative in November 2020 that the Veteran seeks to withdraw the appeal for higher disability ratings for osteoarthritis of right hip; for increased ratings for bilateral flat foot with plantar fasciitis, plantar spurs, and arthritis of first metatarsophalangeal joint; for a compensable rating for right thigh impairment; and for TDIU benefits. The Board finds the request to be fully informed. There remain no allegations of errors of fact or law for appellate consideration as to each of those issues. Accordingly, the Board does not have jurisdiction to review the appeal for higher disability ratings for osteoarthritis of right hip; for increased ratings for bilateral flat foot with plantar fasciitis, plantar spurs, and arthritis of first metatarsophalangeal joint; for a compensable rating for right thigh impairment; and for TDIU benefits. Those claims are dismissed. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.