Citation Nr: 21027082
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 10-49 551
DATE: May 4, 2021

ORDER

The issue of an initial rating in excess of 20 percent prior to August 23, 2011, for degenerative joint disease and degenerative disc disease of the cervical spine (cervical spine disability) is dismissed.

The issue of an initial rating in excess of 10 percent prior to August 23, 2011, for degenerative disc disease of the lumbar spine with spondylolisthesis and lumbar strain (low back disability) is dismissed. 

FINDING OF FACT

In a December 2020 appeals satisfaction notice, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issues of an initial rating in excess of 20 percent prior to August 23, 2011, for the cervical spine disability and an initial rating in excess of 10 percent prior to August 23, 2011, for the low back disability.

CONCLUSIONS OF LAW

1.  The criteria for a withdrawal of an appeal of the issue of an initial rating in excess of 20 percent prior to August 23, 2011, for the cervical spine disability have been met.  38 C.F.R. § 19.55.

2.  The criteria for a withdrawal of an appeal of the issue of an initial rating in excess of 10 percent prior to August 23, 2011, for the low back disability have been met.  38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from June 1970 to June 1973 and October 1982 to January 2000.  	

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

In February 2017, the Board increased the ratings for the cervical spine disability and the low back disability to a 10 and a 20 percent, respectively, effective August 23, 2011, and denied higher ratings prior to August 23, 2011. 

The Veteran appealed the February 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court).

In May 2018, the Court issued a Memorandum Decision vacating the February 2017 Board decision and remanding the issues of an initial rating in excess of 20 percent prior to August 23, 2011, for the cervical spine disability and an initial rating in excess of 10 percent prior to August 23, 2011, for the low back disability to the Board for further proceedings consistent with the Memorandum Decision.

In November 2018 and October 2020, the Board remanded the appeal for additional development.    

Withdrawal

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.  Id.  

As noted above, the Board's October 2020 remand directed additional development.  Pursuant to that remand, the Board notes that in a December 2020 rating decision, the Veteran was awarded service connection for right lower extremity radiculopathy with a 10 percent disability rating, effective November 10, 2020.  Following notification of this rating decision, the Veteran submitted an appeals satisfaction notice in December 2020 indicating that he was satisfied and wish to withdraw all remaining issues associated with his appeal.  The appeals satisfaction notice states that "[b]y signing and submitting this form, I am asking to withdraw all remaining issue(s) contained in my recent Statement of the Case (SOC)/Supplemental Statement of the Case (SSOC)."

In this case, prior to December 2020, the last SSOC was issued in June 2020 which contained the issues of an initial rating in excess of 20 percent prior to August 23, 2011, for the cervical spine disability and an initial rating in excess of 10 percent prior to August 23, 2011, for the low back disability.  The Board finds that the Veteran's December 2020 correspondence meets the requirements to withdraw his appeal per 38 C.F.R. § 19.55.

Therefore, 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.

 

 

Tiffany Dawson

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Castillo, 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.