Citation Nr: 21073460
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 18-50 774
DATE: December 8, 2021

ORDER

Entitlement to an increased rating higher than 20 percent for arthritic spurring T8, T9, T10 to include lumbar spine prior to August 3, 2018, and in excess of 40 percent thereafter, is dismissed.

FINDING OF FACT

In October 2021, prior to promulgation of a decision in the appeal, the Veteran notified VA that he wished to withdraw his appeal.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from November 1984 to June 1985, and from December 1990 to May 1991.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In that decision, the RO denied an increased rating for the Veteran's spine disability, then rated 20 percent.  In September 2018, the RO increased the rating to 40 percent, effective August 3, 2018, creating a staged rating as indicated on the title page.

The Board notes that in connection with his appeal, the Veteran requested and was scheduled for a videoconference hearing before a Veterans Law Judge, to be held in November 2021.  Prior to the hearing, however, the Veteran through his attorney cancelled his hearing request as discussed below.

Withdrawal of Appeal

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  An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55 (a).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 appellant or by his or her authorized representative. Id.

In an October 2021 statement in support of claim (VA Form 21-4138), the Veteran through his attorney indicated that he "withdraws his request for hearing and the VA Form 9 that was filed back in 2019 for an increased rating for his lumbar spine condition above 20%."  This statement reflects a desire to withdraw the appeal with respect to the issue of an increased rating higher than 20 percent for arthritic spurring T8, T9, T10 to include lumbar spine prior to August 3, 2018, and in excess of 40 percent thereafter.  This statement constitutes a valid withdrawal of the Veteran's appeal as it complied with the requirement of the applicable regulation by including the name of the Veteran, the applicable VA file number, and a statement that the appeal was withdrawn.  See Hembree v. Wilkie, 33 Vet. App. 1, 8 (2020) (written withdrawals need only comply with 38 C.F.R. § 20.204 (b), now 38 C.F.R. § 19.55(b) as applicable to legacy claims).

Based on the above, there is no specific determination with which the claimant disagrees as to the claim on appeal, and dismissal of the appeal is therefore warranted.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Walker, 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.