Citation Nr: 21032229
Decision Date: 05/26/21	Archive Date: 05/26/21

DOCKET NO. 15-21 673
DATE: May 26, 2021

ORDER

The appeal seeking an initial disability rating in excess of 20 percent for service-connected degenerative joint disease, thoracic strain with radiculopathy, bilateral 7th and 8th thoracic nerve roots (claimed as disc bulging at T7/-T8/T9-T9) is dismissed.

FINDING OF FACT

On May 24, 2019 and again on April 1, 2021, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received notification from the Veteran indicating he wished to cancel his pending Board hearing and withdraw the appeal for an initial disability rating in excess of 20 percent for service-connected degenerative joint disease, thoracic strain with radiculopathy, bilateral 7th and 8th thoracic nerve roots (claimed as disc bulging at T7/-T8/T9-T9).

CONCLUSION OF LAW

The criteria for dismissal of the claim for an initial disability rating in excess of 20 percent for service-connected degenerative joint disease, thoracic strain with radiculopathy, bilateral 7th and 8th thoracic nerve roots (claimed as disc bulging at T7/-T8/T9-T9) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service in the Marine Corps from November 1980 to September 1992 and in the Army from July 2002 to January 2012.

Entitlement an initial disability rating in excess of 20 percent for service-connected degenerative joint disease, thoracic strain with radiculopathy, bilateral 7th and 8th thoracic nerve roots (claimed as disc bulging at T7/-T8/T9-T9)

Any appeal which fails to allege specific error of fact or law in the determination being appealed may be dismissed. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38C.F.R. §19.55. Withdrawal may be made by the appellant or by his or her authorized representative. 38C.F.R. §19.55.

On May 24, 2019, the Board received a signed statement from the Veteran indicating that he wished to withdraw his pending appeal for an initial disability rating in excess of 20 percent for service-connected degenerative joint disease, thoracic strain with radiculopathy, bilateral 7th and 8th thoracic nerve roots (claimed as disc bulging at T7/-T8/T9-T9.  Thereafter, on April 1, 2021, the Board received another signed statement from the Veteran indicating that he wished to cancel his June 18, 2021 hearing before the Board and again, asked to withdraw his pending appeal.

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These statements clearly and unambiguously indicate his intent to withdrawal the issue on appeal.  The Federal Circuit has not addressed the criteria as to a written request to withdraw a claim. See Acree v. O'Rourke, 891 F.3d 1009, 1013, n.2 (Fed. Cir. 2018).  However, the Board has no basis to question the validity of the withdrawal or the Veteran's understanding of the consequences of withdrawing the appeal. Cf. Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Thus, as there remains no allegation of error of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal of this issue and it is dismissed.

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Churchwell, 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.