Citation Nr: 21073626
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 14-28 208
DATE: December 10, 2021

ORDER

The appeal for an initial disability rating in excess of 20 percent for degenerative joint disease (DJD) of the thoracic spine with lumbosacral strain prior to May 24, 2017, and in excess of 40 percent therefrom, is dismissed.

The appeal for a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to January 18, 2017, is dismissed.

 

FINDINGS OF FACT

In October 2021, prior to the promulgation of a Board decision, the Veteran withdrew the appeal.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal as to the issue of an initial disability rating in excess of 20 percent for DJD of the thoracic spine with lumbosacral strain prior to May 24, 2017, and in excess of 40 percent therefrom, have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for withdrawal of the appeal as to the issue of TDIU prior to January 18, 2017, have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1996 to October 2000.

The case is on appeal from a June 2012 rating decision.

In April 2017, the Veteran testified at a Board hearing.

In a June 2018 decision, the Board remanded the case.

While the case was in remand status, in a May 2019 rating decision, the RO increased the lumbar spine condition to 40 percent from May 24, 2017.  As this did not resolve the appeal, the claim for a higher rating, as reflected on the title page, remains in appellate status.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  

Also, in a May 2019 rating decision, the RO granted a TDIU effective from January 18, 2017.  This did not resolve the appeal because the Veteran's VA Form 21-8940 claimed TDIU from July 2014.  See Harper v. Wilkie, 30 Vet. App. 356, 359 (2018).  

1. An initial disability rating in excess of 20 percent for DJD of the thoracic spine with lumbosacral strain prior to May 24, 2017, and in excess of 40 percent therefrom.

2. A TDIU prior to January 18, 2017.

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.  An appeal may be withdrawn by the Veteran or representative on the record at a hearing, or in writing at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.

In October 2021, the Veteran submitted a statement requesting to withdraw the appeal as "it appears the reason for [the] appeal no longer exists."

The Board finds that the Veteran's withdrawal of the appeal is "explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant."  DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).  His statement demonstrates his belief that he is satisfied with the outcome of the issues and does not wish to proceed with the appeal.  

Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to this appeal.  Accordingly, the appeal is dismissed.

 

 

RYAN T. KESSEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Bosely, 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.