Citation Nr: A21020613
Decision Date: 12/29/21	Archive Date: 12/29/21

DOCKET NO. 201013-112477
DATE: December 29, 2021

ORDER

The appeal of the issue of entitlement to a rating in excess of 30 percent for status postoperative Brostrum procedures of the right ankle with Achilles tendon sprain and arthritis is dismissed as a matter of law.

FINDINGS OF FACT

1. Following a Higher Level Review (HLR) Request, in December 2020 the Agency of Original Jurisdiction (AOJ) furnished a rating decision which included the above-listed issue; this issue was already pending direct review at the Board of Veterans Appeals (Board) and concurrent election is prohibited.

2. On November 8, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal is requested.

CONCLUSION OF LAW

The criteria for dismissal of the appeal of the issue of entitlement to a rating in excess of 30 percent for status postoperative Brostrum procedures of the right ankle with Achilles tendon sprain and arthritis are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.2500(b), 20.204.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had active duty service from October 2002 to April 2004.

The issue of an increased rating for the status postoperative Bostrum procedures right ankle has a lengthy procedural history initiated by a claim received on August 6, 2019 and kept pending through a series of rating decisions and requests for review. In pertinent part, an October 2, 2020 rating decision denied an increased rating in excess of 30 percent for the right ankle disability.

On October 13, 2020, VA received a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), in which the Veteran elected the Direct Review option for the October 2, 2020 rating decision's denial of an increased rating for the right ankle disability.

On October 21, 2020, the Veteran also submitted a VA Form 20-0996, Decision Review Request: HLR, and requested review of the same October 2020 rating decision determination. 

In December 2020, the AOJ issued a HLR decision granting an increase to 40 percent for the right ankle disability for the entire appeal period.

Concurrent election of two review options (here, HLR and Board) is prohibited. 38 C.F.R. § 3.2500(b). However, as the AOJ adjudicated the HLR as to the issue on appeal, there remains no specific determination for the Board to consider. Accordingly, the issue is dismissed as a matter of law.

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Moreover, even if there had been no concurrent election, in correspondence received November 8, 2021, prior to the promulgation of a decision in the appeal, the Veteran informed the Board that he wished to withdraw this appeal. 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. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. § 20.204. Thus, there are two grounds for dismissal of this appeal.

 

 

LAURA E. COLLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Minock

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.