Citation Nr: 21041924
Decision Date: 07/10/21	Archive Date: 07/10/21

DOCKET NO. 17-00 822
DATE: July 10, 2021

ORDER

Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine is dismissed.

Entitlement to a disability rating in excess of 20 percent for radiculopathy, right leg is dismissed.

FINDINGS OF FACT

In a June 2020 Appeals Satisfaction Notice, prior to the promulgation of a decision in the appeal, the Veteran expressed satisfaction with the May 2020 rating decision and requested to withdraw all remaining issues contained in the supplemental statement of the case (SSOC).

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal by the Veteran with respect to the issue of entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

2. The criteria for withdrawal of an appeal by the Veteran with respect to the issue of entitlement to a disability rating in excess of 20 percent for radiculopathy, right leg have been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Army from June 2004 to October 2005.

This matter comes before the Board of Veterans' Appeals (Board), on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 

The Board previously considered this appeal in December 2018 and remanded these issues for further development.

During the pendency of the appeal, in a May 2020 rating decision, the AOJ increased the disability evaluation for degenerative disc disease of the lumbar spine to 40 percent and increased the disability evaluation for radiculopathy, right leg to 20 percent, both effective November 14, 2019. A Veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation and a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the issues of entitlement to an evaluation in excess of 40 percent for the degenerative disc disease of the lumbar spine and entitlement to an evaluation in excess of 20 percent for radiculopathy, right leg remains on appeal. In addition, in the May 2020 rating decision, the AOJ granted a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU), effective November 30, 2015.

Increased Rating

1. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine

2. Entitlement to a disability rating in excess of 20 percent for radiculopathy, right leg

In June 2020, the Veteran submitted an Appeals Satisfaction Notice. It was stated in the notice that, "I have received the recent correspondence regarding the decision to grant one or more of my issues on appeal. Based on the decision rendered, I am satisfied and wish to withdraw all remaining issues associated with this appeal. By signing and submitting this form, I am asking to withdraw all remaining issues contained in my recent SSOC and ask the RO of jurisdiction to discontinue further development actions associated with this appeal." See June 2020 Appeals Satisfaction Notice.

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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. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.

In the present case, the appellant, has withdrawn this appeal and, 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.

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Romero-Sanchez, Associate 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.