Citation Nr: 21015219 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 14-13 081 DATE: March 17, 2021 ORDER Entitlement to a higher initial disability rating in excess of 10 percent from June 13, 2013 to November 9, 2016, in excess of 20 percent from November 10, 2016 to September 14, 2020, and in excess of 40 percent from September 15, 2020, for service connected thoracolumbar strain with degenerative disc disease and osteoarthritis (lumbar spine disability), having been withdrawn by the Veteran, is dismissed. Entitlement to a higher initial disability rating in excess of 20 percent for service connected right knee strain, having been withdrawn by the Veteran, is dismissed. Entitlement to a higher initial disability rating in excess of 10 percent for service connected left knee strain, having been withdrawn by the Veteran, is dismissed. Entitlement to a higher initial disability rating in excess of 10 percent for service connected instability of the left knee, having been withdrawn by the Veteran, is dismissed. FINDING OF FACT On October 22, 2020, prior to the promulgation of a decision in the instant appeal, the Board of Veterans’ Appeals (Board) was informed, in writing by the Veteran, that the initial lumbar spine and bilateral knee rating issues were no longer being pursued on appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of a higher initial disability rating in excess of 10 percent from June 13, 2013 to November 9, 2016, in excess of 20 percent from November 10, 2016 to September 14, 2020, and in excess of 40 percent from September 15, 2020, for the service connected lumbar spine disability have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the issue of a higher initial disability rating in excess of 20 percent for service connected right knee strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the issue of a higher initial disability rating in excess of 10 percent for service connected left knee strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the issue of a higher initial disability rating in excess of 10 percent for service connected instability of the left knee have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1982 to February 1990. This matter was previously before the Board in January 2019, at which time the Board issued a decision, which, in pertinent part, denied a higher initial rating in excess of 10 percent for the lumbar spine disability for the period from June 13, 2013 to November 10, 2016, denied a higher initial rating in excess of 20 percent for the lumbar spine disability for the period from November 10, 2016 forward, granted a higher initial 20 percent rating, but no higher, for the right knee disability, denied a higher initial rating in excess of 10 percent for the left knee disability, and granted a separate 10 percent rating, but no higher, for instability of the left knee. The Veteran appealed the Board’s January 2019 decision to the United States Court of Appeals for Veterans Claims (Court). The Board’s January 2019 decision was remanded pursuant to a September 2019 Joint Motion for Partial Remand (JMPR). In the September 2019 JMPR, the parties agreed that a November 2016 VA examination report was not adequate for rating purposes because the VA examiner did not adequately explain why additional range of motion lost in the lumbar spine and knees due to repetitive use over time and during episodes of flare ups could not be quantified. Additionally, the November 2016 VA examiner did not record both active and passive range of motion testing. Subsequently, in a May 2020 decision, the Board remanded the issues on appeal for additional development complaint with the September 2019 JMPR. While on remand, the Agency of Original Jurisdiction (AOJ) issued a rating decision granting a higher staged rating for the lumbar spine disability and increased ratings for the service-connected bilateral lower extremity radiculopathy. 1. Initial Disability Rating for Lumbar Spine Disability 2. Initial Disability Rating for Right Knee Strain 3. Initial Disability Rating for Left Knee Strain 4. Initial Disability Rating for Instability of the Left Knee 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 as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 19.55. As discussed above, in September 2020 the AOJ issued a rating decision granting a higher staged disability rating for the service-connected lumbar spine disability. Subsequently, in October 2020, prior to the promulgation of a decision in the instant appeal, the Board was informed, in writing by the Veteran, that the initial lumbar spine and bilateral knee rating issues were no longer being pursued on appeal. Specifically, per an Appeals Satisfaction Notice, the Veteran indicated that she was satisfied with the September 2020 rating decision and was no longer pursuing the remaining issues on appeal. Further, in a February 2021 Motion to Dismiss Appeal, the Veteran’s representative confirmed that Veteran wished to discontinue this appeal. (Continued on the next page)   As the Veteran has withdrawn the appeal regarding the issues of a higher initial disability rating in excess of 10 percent from June 13, 2013 to November 9, 2016, in excess of 20 percent from November 10, 2016 to September 14, 2020, and in excess of 40 percent from September 15, 2020, for the service connected lumbar spine disability, a higher initial disability rating in excess of 20 percent for service connected right knee strain, a higher initial disability rating in excess of 20 percent for service connected left knee strain, and a higher initial disability rating in excess of 20 percent for service connected instability of the left knee, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Blowers, 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.