Citation Nr: 21064516
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 17-50 253
DATE: October 20, 2021

ORDER

Entitlement to a rating in excess of 20 percent for degenerative facet joint disease, lumbosacral spine and L5-S1 is dismissed.

FINDING OF FACT

In an October 2021 Statement in Support of Claim (VA Form 21-4138), submitted prior to the promulgation of a decision in the appeal, the Veteran's authorized representative withdrew the Veteran's appeal that was pending before the Board, which was an appeal for increased ratings for the Veteran's service-connected degenerative facet joint disease, lumbosacral spine and L5-S1.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant's authorized representative have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active service in the United States Air Force from September 1967 to September 1991. This matter comes to the Board on appeal from an August 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which increased the rating of the service-connected degenerative facet joint disease, lumbosacral spine and L5-S1 from 10 percent to 20 percent, effective January 26, 2016.

Dismissal of Appeal

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.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.  38 C.F.R. § 19.55.

Appeal withdrawals must include the name of the claimant, the applicable claim number, and a statement that the appeal is being withdrawn.  38 C.F.R. § 19.55.  If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.

The present appeal stems from an August 2016 rating decision that increased the rating of the service-connected degenerative facet joint disease, lumbosacral spine and L5-S1 from 10 percent to 20 percent, effective January 26, 2016.  After being provided a Statement of the Case on the issue in August 2017, the Veteran perfected his appeal in September 2017. He asked for a personal hearing on that issue, which was ultimately scheduled for October 19, 2021.   

In an October 2021 Statement in Support of Claim, the Veteran's authorized representative requested to withdraw Veteran's appeal which was scheduled for a Board hearing on October 19, 2021. The statement included the Veteran's name, the Veteran's Social Security Number, and clearly expressed a desire to withdraw the appeal on the Veteran's behalf.  A review of the record shows no other issues being in appellate status.

In light of the October 2021 Statement in Support of Claim from the Veteran's authorized representative, there remain no allegations of errors of fact or law for appellate consideration regarding the issue enumerated immediately above. The Board finds that the authorized representative's request to withdraw the Veteran's appeal on this issue was explicit, unambiguous, and done with full understanding of the consequences. The Veteran's authorized representative knew he was withdrawing the Veteran's appeal on the Veteran's behalf. The received Statement in Support of Claim is in full-keeping with the applicable regulations. 

Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. See 38 C.F.R. § 19.55(c).

 

 

MICHAEL A. HERMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Fairlie, 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.