Citation Nr: 21062972 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 15-29 147 DATE: October 12, 2021 ORDER Entitlement to an evaluation in excess of 20 percent for degenerative arthritis, intervertebral disc syndrome, facet arthropathy, and a lumbosacral strain (lumbar spine disability) from September 1, 2012 to June 9, 2021, and in excess of 40 percent from June 9, 2021 on is dismissed. FINDING OF FACT In September 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal was requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant were met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.205, 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Navy from November 1990 to November 1991. This matter is before the Board of Veterans' Appeals (the Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. In March 2019, the Board granted the Veteran temporary total disability based on the need for convalescence following his lumbar fusion surgery on March 1, 2012 through August 31, 2012. The Veteran's claim for a rating in excess of 20 percent for his lumbar spine disability was denied. He subsequently appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (the Court). In an April 2020 order, the Court granted the parties' Joint Motion for Partial Remand (JMPR), vacating the Board's March 2019 decision regarding the denial of a rating in excess of 20 percent for his lumbar spine disability, and remanded the appeal to the Board for readjudication consistent with the JMPR. The Court determined that the Board erred in failing to provide a new examination when the record showed reports of increased pain since his last VA examination in April 2017. Additionally, the Board failed to address whether separate ratings were warranted for his intervertebral disc syndrome (IVDS) and radicular pain in the bilateral lower extremities. In October 2020, the Board remanded the Veteran's claim for additional development of the record including a new VA examination to assess the current severity of his service-connected lumbar spine disability. An August 2021 rating decision provided a partial grant of the benefit sought on appeal. The Veteran was assigned a 20 percent evaluation for his lumbar spine disability effective September 1, 2012 to June 9, 2021 and a 40 percent evaluation from June 9, 2021 on. He was also granted service connection for his left lower extremity radiculopathy, which was found 10 percent disabling effective June 9, 2021 as well as service connection for an anterior trunk scar, which was noncompensable effect March 1, 2012. As this increase did not constitute a full grant of the benefit sought for the entire appeal period, the Veteran's claim for a higher evaluation remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). 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. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. The RO issued a supplemental statement of the case (SSOC) regarding the increased rating claim for the Veteran's lumbar spine disability in August 2021. In September 2021, the Veteran submitted an Appeals Satisfaction Notice requesting to withdraw all issues contained in the SSOC. The Veteran's representative also submitted an appellate brief in September 2021 reiterating the Veteran's request to withdraw all the issues contained in the SSOC and a prompt dismissal action in accordance with his expressed wish. The Appeal Satisfaction Notice is very clear as to the consequence of signing and returning it. The Board, therefore, finds the Veteran was fully aware the one issue contained in the August 2021 SSOC, entitlement to an increased rating for the lumbar spine disability, would be withdrawn, meaning he would no longer purse that issue. Accordingly, the Board finds the September 2021 Appeals Satisfaction Notice is a valid withdraw of the issue on appeal and there remain no allegations of errors of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review the appeal and it is dismissed. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.