Citation Nr: 21065212
Decision Date: 10/25/21	Archive Date: 10/25/21

DOCKET NO. 17-38 289
DATE: October 25, 2021

ORDER

The appeal seeking a rating in excess of 20 percent for a lumbar spine disorder is dismissed.

The appeal seeking a rating in excess of 30 percent for a cervical spine disorder is dismissed.

The appeal seeking a rating in excess of 10 percent for right upper extremity radiculopathy is dismissed.

FINDING OF FACT

In April 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran's then representative indicating that the Veteran wished to withdraw the issues on appeal. 

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal as to the matter of entitlement to a rating in excess of 20 percent for a lumbar spine disorder have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104.

2. The criteria for dismissal of the appeal as to the matter of entitlement to a rating in excess of 30 percent for a cervical spine disorder have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104.

3. The criteria for dismissal of the appeal as to the matter of entitlement to a rating in excess of 10 percent for right upper extremity radiculopathy have been met. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty in the U.S. Air Force from June 1971 to October 1991.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 

Entitlement to increased ratings for a lumbar spine disorder, cervical spine disorder, and right upper extremity radiculopathy. 

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the veteran or by his authorized representative and must be in writing (except for appeals withdrawn on the record at a hearing). 38 C.F.R. § 20.204.

In correspondence received in April 2020, the Veteran's then representative indicated that the Veteran was rated at 100 percent and was satisfied with this outcome. Additionally, the representative indicated the Veteran's intent to withdraw all pending appeals and claims. [In correspondence received also on that same day, the representative requested to withdraw as the Veteran's representative.  This was acknowledged by VA in May 2020.]  The Veteran's then representative's statement clearly and unambiguously indicated the Veteran's intent to withdraw the issues on appeal. The Federal Circuit has not addressed the criteria as to a written request to withdraw a claim. See Acree v. O'Rourke, 891 F.3d 1009, 1013, n. 2 (Fed. Cir. 2018). Likewise, the Board has no basis to question the validity of the withdrawal or the Veteran's understanding of the consequences of withdrawing the appeal. Cf. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, as there remains no allegation of error of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal of these issues and they are dismissed.

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Talton, John H.

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.