Citation Nr: 21030208 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-08 759 DATE: May 18, 2021 ORDER The appeal of the issue of entitlement to service connection for hypertension is dismissed. The appeal of the issue of entitlement to a rating in excess of 20 percent prior to September 19, 2020, and in excess of 40 percent thereafter, for lumbosacral strain with degenerative arthritis ("low back disability") is dismissed. The appeal of the issue of entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is dismissed. The appeal of the issue of entitlement to a rating in excess of 10 percent prior to March 22, 2017, and in excess of 20 percent thereafter, for right lower extremity radiculopathy is dismissed. The appeal of the issue of entitlement to a total disability rating based on individual unemployability (TDIU), prior to March 22, 2017, is dismissed. FINDING OF FACT In May 2021, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issues of entitlement to service connection for hypertension, entitlement to increased ratings for a low back disability and left and right lower extremity radiculopathy, and entitlement to a TDIU prior to March 22, 2017. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal of the issue of entitlement to service connection for hypertension by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2019). 2. The criteria for withdrawal of the appeal of the issue of entitlement to a rating in excess of 20 percent prior to September 19, 2020, and in excess of 40 percent thereafter, for a low back disability by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2019). 3. The criteria for withdrawal of the appeal of the issue of entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2019). 4. The criteria for withdrawal of the appeal of the issue of entitlement to a rating in excess of 10 percent prior to March 22, 2017, and in excess of 20 percent thereafter, for right lower extremity radiculopathy by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2019). 5. The criteria for withdrawal of the appeal of the issue of entitlement to a TDIU, prior to March 22, 2017, by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from October 1972 to October 1976. This matter is on appeal from a May 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for hypertension and granted entitlement to service connection for a low back disability (20 percent), left lower extremity radiculopathy (20 percent), and right lower extremity radiculopathy (10 percent). The Veteran timely perfected an appeal of the issue of entitlement to service connection for hypertension. See November 2016 Notice of Disagreement; January 2017 Statement of the Case; February 2017 VA Form 9. The Veteran did not submit an explicit notice of disagreement with the ratings assigned for his low back disability and bilateral lower extremity radiculopathy in the May 2016 rating decision. However, in March 2017, the Veteran filed a VA Form 21-8940 seeking entitlement to a TDIU due, in part, to his low back disability and bilateral lower extremity radiculopathy. In connection with that claim, the RO obtained updated VA examinations regarding the Veteran's low back and radiculopathy disabilities. See April 2017 VA Examination Reports. In a June 2017 rating decision, the RO continued the ratings for the Veteran's low back disability and bilateral lower extremity radiculopathy and denied entitlement to a TDIU. The Veteran timely perfected an appeal as to the ratings assigned for his low back disability and associated bilateral radiculopathy, as well as the denial of entitlement to a TDIU. See July 2017 Notice of Disagreement; December 2017 Statement of the Case; February 2018 VA Form 9. In Buie v. Shinseki, 24 Vet. App. 242 (2010), the Court held that even in increased ratings claims, when VA receives a submission of new and material evidence within one year of a rating decision addressing the condition, 38 C.F.R. § 3.156 (b) requires any subsequent decision to relate back to the original claim. Id. at 251-52; see also Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that 38 C.F.R. § 3.156 (b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim). In this case, although the Veteran did not express disagreement with the ratings assigned for his low back disability and associated bilateral radiculopathy in the May 2016 rating decision, new and material evidence regarding the claimed disabilities was received within the appeal period after the initial, May 2016 rating decision, and thus, that rating decision did not become final. See 38 U.S.C. §§ 7105 (2012); 38 C.F.R. §§ 3.156 (b), 20.201 (2019). Therefore, despite the RO's prior characterization of those issues as arising from a June 2017 rating decision, the Board finds that the issues of increased ratings for the Veteran's low back disability and associated bilateral radiculopathy are properly characterized as appeals of the initial ratings assigned in the May 2016 rating decision, and the issues have been recharacterized accordingly. In December 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In April 2020, the Board, in pertinent part, remanded the issue listed above, as well as the issues of entitlement to service connection for a left hip condition, a right hip condition, a gastrointestinal disorder, a left knee condition, and a right knee condition, for further development. Thereafter, in two January 2021 rating decisions, the RO (1) increased the rating for the Veteran's low back disability to 40 percent, effective from September 19, 2020; (2) increased the rating for the Veteran's right lower extremity radiculopathy to 20 percent, effective from March 22, 2017; (3) granted entitlement to service connection for a left hip condition, a right hip condition, a gastrointestinal disorder, a left knee condition, and a right knee condition; and (4) granted entitlement to a TDIU from March 22, 2017. Therefore, the issues of entitlement to service connection for a left hip condition, a right hip condition, a gastrointestinal disorder, a left knee condition, and a right knee condition are no longer on appeal. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). However, because the grants of increased ratings for the Veteran's low back disability and right lower extremity radiculopathy did not represent a total grant of benefits sought on appeal, the issues of entitlement to a rating in excess of 20 percent prior to September 19, 2020, and in excess of 40 percent thereafter, for a low back disability and entitlement to a rating in excess of 10 percent prior to March 22, 2017, and in excess of 20 percent thereafter, for right lower extremity radiculopathy, remain before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The Board also notes that the Veteran's TDIU claim has been pending as part and parcel of his claim of increased ratings for his low back disability and associated bilateral radiculopathy because the Veteran has consistently asserted that he is unemployable due, in part, to symptoms of those disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the issue of entitlement to a TDIU prior to March 22, 2017 clearly remains on appeal and is within the jurisdiction of the Board. Withdrawn Appeal 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. A withdrawal may be made by the appellant or his or her authorized representative. Id. In this case, in a May 2021 statement, the Veteran, through his representative, requested to withdraw all claims remaining on appeal. See May 2021 Third Party Correspondence. This withdrawal was in writing, clearly identified the issues being withdrawn, and clearly identified the Veteran by name and by his VA claim number. Thus, it meets all the elements for a valid withdrawal. 38 C.F.R. § 19.55. Hence, 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. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, 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.