Citation Nr: 21032860
Decision Date: 05/28/21	Archive Date: 05/28/21

DOCKET NO. 16-30 763
DATE: May 28, 2021

ORDER

The appeal with respect to entitlement to a rating in excess of 10 percent for lumbar spine degenerative joint disease with intervertebral disc syndrome (IVDS) is dismissed.

The appeal with respect to entitlement to a total disability rating based upon individual unemployability (TDIU) is dismissed.

FINDING OF FACT

By correspondence received in January 2020, prior to the promulgation of an appellate decision, the Veteran indicated that he wished to withdraw the present appeal.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from May 1972 to November 1979, and from April 1980 to May 1996.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.

A statement of the case was issued in May 2016, which included the issue of entitlement to service connection for high cholesterol.  However, in his June 2016 VA Form 9, the Veteran explicitly stated that he was only appealing the issue of an increased rating for lumbar spine degenerative joint disease.

The claim for a TDIU was added to the appeal by the agency of original jurisdiction pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  See January 2017 Supplemental Statement of the Case.

1. Entitlement to a rating in excess of 10 percent for lumbar spine degenerative joint disease with IVDS.

2. Entitlement to a TDIU.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  See 38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in an appeal.  38 C.F.R. § 19.55.  Only an appellant, or an appellant's authorized representative, may withdraw an appeal.  Id. 

By correspondence received in January 2020, prior to the promulgation of an appellate decision, the Veteran indicated that he wished to withdraw the present appeal as to the issues of entitlement to an increased rating for lumbar degenerative joint disease, as well as entitlement to a TDIU.  The correspondence indicated that he wished to withdraw the appeal in its entirety and included his name and VA file number.  This withdrawal was effective immediately upon receipt by VA.  38 C.F.R. § 19.55.  Given the above circumstances, the Board finds that the Veteran's withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action.  See Hembree v. Wilkie, 33 Vet. App. 1 (2020) (holding that written withdrawals need only comply with 38 C.F.R. § 20.204(b), re-designated as 38 C.F.R. § 19.55(a)).

As the Veteran has withdrawn his appeal, there remain no allegations of error of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and the appeal must be dismissed.

 

 

S. Sorathia 

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R. Kettler, 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.