Citation Nr: 21006174
Decision Date: 02/03/21	Archive Date: 02/03/21

DOCKET NO. 16-40 976
DATE: February 3, 2021

ORDER

Entitlement to a rating in excess of 30 percent disabling for service-connected left knee osteoarthritis prior to November 16, 2020, and in excess of 40 percent disabling thereafter, is dismissed.

FINDING OF FACT

In a November 2020 statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issue of entitlement to a rating in excess of 30 percent disabling for service-connected left knee osteoarthritis prior to November 16, 2020, and in excess of 40 percent disabling thereafter; there are no further allegations of factual or legal error remaining in these matters for appellate consideration.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal for increased ratings for service-connected left knee osteoarthritis, by the Veteran have been met; the Board has no further jurisdiction in this matter.  38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from August 1990 to March 1992. 

In November 2018 and August 2020, the Board remanded the claim on appeal for further development and adjudication.  The Board finds that there was substantial compliance with its November 2018 and August 2020 remand directives regarding the claim.  A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268 (1998).  Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required.  See D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999).

Entitlement to a rating in excess of 30 percent disabling for service-connected left knee osteoarthritis prior to November 16, 2020, and in excess of 40 percent disabling thereafter, is dismissed.

The Board has jurisdiction where there is a question of fact or law in any matter which under 38 U.S.C. § 511 (a) is subject to a decision by the Secretary.  38 U.S.C. § 7104.  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  An appeal may be withdrawn by the appellant or by his authorized representative at any time before the Board promulgates a decision in the matter.  38 C.F.R. § 20.204.  A withdrawal of an appeal is effective when received.  38 C.F.R. § 20.204 (b)(3).

In a November 2020 correspondence, the Veteran indicated that he wished to withdraw his claim for increased ratings for his service-connected left knee osteoarthritis.  Under the circumstances, the Board finds that it is quite clear that there is no longer any allegation of factual or legal error remaining for appellate consideration with respect to the appeal seeking higher ratings for the Veteran’s service-connected left knee condition.  As such, the Board no longer has any jurisdiction in the matter, and it must be dismissed.

 

 

L. M. BARNARD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. Unger, 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.