Citation Nr: 21029515
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 15-23 380
DATE: May 13, 2021

ORDER

The appeal seeking entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease with intervertebral disc syndrome (IVDS) is dismissed.

FINDING OF FACT

In December 2020 written correspondence, prior to the promulgation of a Board decision in the appeal in the matter, the Veteran expressed his intent to withdraw his appeal seeking a rating in excess of 40 percent for lumbar spine degenerative disc disease with IVDS; there is no question of fact or law in the matter remaining for the Board to consider.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal are met with respect to the claim seeking entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease with IVDS; the Board has no further jurisdiction in this matter.  38U.S.C. §§7104, 7105; 38C.F.R. §19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is a Veteran who served on active duty from October 1968 to January 1972.  This case is before the Board of Veterans' Appeals (Board) on appeal of April 2013 (regarding the lumbar spine) and June 2015 (regarding entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU)) Department of Veterans Affairs (VA) rating decisions.  Personal hearings were held before a DRO at the Regional Office (RO) in February 2017 and before the undersigned in February 2019 (videoconference hearing).  In May 2019, the Board remanded this matter for further evidentiary development.  In August 2020, the RO increased the evaluation of the Veteran's lumbar degenerative disc disease to 40 percent disabling, effective January 1, 2013, the date he was reduced, and in November 2020, the RO granted in full the TDIU claim (such that it is no longer in appellate status).

Dismissal

The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary.  38 U.S.C. § 7104; 38C.F.R. §20.104.  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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or an authorized representative, and must be in writing or on the record at a hearing.  38 C.F.R. § 19.55.

In December 2020, the Veteran submitted an Appeals Satisfaction Notice and asked to withdraw all remaining issues associated with the appeal in his most recent supplemental statement of the case (SOC).  A withdrawal of an appeal is effective when received.  38 C.F.R. § 20.204(b)(3).  Accordingly, despite the March 2021 Appellate Brief (which apparently overlooked the withdrawal, from the time of the receipt of the withdrawal), the claim for an increased rating for lumbar spine degenerative disc disease with IVDS had no longer been on appeal.

The Board finds that the Veteran's statement expressing his intent to withdraw the claim is explicit and unambiguous.  Hembree v. Wilkie, No. 18-3856 (Vet. App. August 31, 2020).  The withdrawal was clear and unambiguous on its face as to intent.  There remain no allegations of error of fact or law for appellate consideration regarding this matter.  Accordingly, the Board does not have jurisdiction to consider an appeal in the matter, and the appeal in the matter must be dismissed.

 

 

GEORGE R. SENYK

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Griffith

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.