Citation Nr: 21063203
Decision Date: 10/13/21	Archive Date: 10/13/21

DOCKET NO. 17-27 092
DATE: October 13, 2021

ORDER

Entitlement to an increased rating higher than 10 percent for service-connected systemic lupus erythematosus (SLE) is dismissed.

FINDING OF FACT

In a January 2021 letter, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the claim for a rating higher than 10 percent for service-connected SLE.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met with regard to the claim for an increased rating higher than 10 percent for service-connected SLE.  38 U.S.C. § 7105 (d); 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1968 to September 1971 and from February 2003 to September 2003, to include service in the Republic of Vietnam.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased rating claim for an evaluation in excess of 10 percent for his service-connected SLE.  The Veteran filed a timely notice of disagreement (NOD) in December 2015, appealing the denial and seeking a 60 percent rating.  The Veteran was issued an April 2017 Statement of the Case (SOC) and, in May 2017, the Veteran filed a timely substantive appeal (via VA Form 9) to the Board.  Subsequent March 2018 and June 2020 rating decisions again continued the Veteran's 10 percent rating.

Dismissal

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees.  38 U.S.C. § 7105 (d).  An appeal may be withdrawn as to any or all issues involved in the appeal.  38 C.F.R. § 19.55 (a).  Withdrawal may be made by the Veteran or by his or her authorized representative in writing.  38 C.F.R. § 19.55 (b).

The Veteran was seeking entitlement to a rating in excess of 10 percent for his service connected SLE.  As noted above, he submitted a substantive appeal to the Board in May 2017.  In January 2021, however, the Veteran submitted a written withdrawal to the claim indicating a desire to "drop" his appeal on lupus.  He subsequently submitted a May 2021 letter requesting to withdraw all pending appeals.  Lastly, in an August 2021 motion to dismiss, the Veteran's representative confirmed the Veteran's desire to withdraw all pending appeals, that he is satisfied with recent actions by the VA, and that they were moving for the Board to dismiss the claim.  

The January 2021 and May 2021 withdrawal letters and August 2021 representative motion to dismiss included the Veteran's full name, his VA claims file number, the specific claim he wished to withdraw, and a written statement noting his expressed intent to withdraw the claim, thereby satisfying the requirements of a valid withdrawal.  See Hembree v. Wilkie, 33 Vet. App. 1, 8 (2020). (written withdrawals need only comply with 38 C.F.R. § 20.204 (b), renumbered as 38 C.F.R. § 19.55 (b)).

As the Veteran has validly withdrawn his appeal before the Board of an increased rating higher than 10 percent for service-connected SLE, there is no longer any specific determination with which the claimant disagrees.  38 U.S.C. § 7105 (d).  Accordingly, the Board does not have jurisdiction to review the appeal as to this claim and it is dismissed.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	JR Cummings, 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.