Citation Nr: 21040525
Decision Date: 07/05/21	Archive Date: 07/05/21

DOCKET NO. 17-01 560
DATE: July 5, 2021

ORDER

The claim of entitlement to an initial rating in excess of 10 percent for lumbar back strain with muscle spasms is dismissed.

FINDING OF FACT

In March 2021, prior to the promulgation of a decision, the Veteran withdrew his appeal pertaining to the issue of entitlement to an initial rating in excess of 10 percent for lumbar back strain with muscle spasms. 

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met with respect to the issue of entitlement to an initial rating in excess of 10 percent for lumbar back strain with muscle spasms. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1977 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2016, the Veteran timely appealed such rating decision to the Board and requested a hearing before a Veterans Law Judge. However, as will be discussed below, he withdrew his appeal prior to the scheduled hearing. The Board notes that in the December 2016 VA Form 9, the Veteran specifically limited his appeal to the issue of entitlement to an initial rating in excess of 10 percent for lumbar back strain with muscle spasms. Accordingly, the issues of entitlement to service connection for right and left knee arthritis, as well as hypertensive vascular disease, were not appealed to the Board, and the Board has no jurisdiction over such matters. 

Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See e.g., 38 C.F.R. § 20.104. In essence, a "case or controversy" involving a pending adverse determination to which the appellant has taken exception no longer exists. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994). Further, 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. In addition, for withdrawals not made on the record at a Board hearing, such must be in writing and include the file number and a statement that the appeal is withdrawn. Hembree v. Wilkie, 33 Vet. App. 1 (2020). 

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In March 2021, prior to the promulgation of a decision, the Veteran withdrew his appeal pertaining to the issue of entitlement to an initial rating in excess of 10 percent for lumbar back strain with muscle spasms. In this regard, such statement was in writing, included the correct file number, and explicitly identified the issue to be withdrawn. 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.

 

 

TIFFANY HANSON

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Breckenridge

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.