Citation Nr: 22010604
Decision Date: 02/24/22	Archive Date: 02/24/22

DOCKET NO. 16-28 215
DATE: February 24, 2022

ORDER

The appeal seeking an evaluation in excess of 40 percent for service-connected nocturnal epilepsy with grand and petit mal seizures (hereinafter, service-connected epilepsy) prior to September 3, 2021, has been withdrawn, and it is dismissed.

FINDING OF FACT

In January 2022, the Veteran submitted correspondence indicating that he no longer wished to pursue the benefits subject to the appealed issue before the Board of Veterans' Appeals (Board).

CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal by the Veteran for the issue of entitlement to an evaluation in excess of 40 percent for service-connected epilepsy prior to September 3, 2021, have been met.  38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204.  

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from June 2011 to January 2013.  

This matter comes to the Board from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ).  The Veteran expressed timely disagreement with this determination, and the present appeal ensued.  

The Veteran's appeal was previously before the Board in May 2021, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal.  After completion of a VA examination consequent to the Board's remand, the AOJ, among other actions, partially granted the Veteran's appealed issue in a November 2021 rating decision; the 40 percent evaluation assigned for service-connected epilepsy was increased to 100 percent, effective from September 3, 2021.  The AOJ's actions have truncated the issue on appeal; however, since such did not represent a full grant of the benefits sought, the remaining entitlement is properly before the Board, and the issue has been recharacterized to reflect the downstream impact of the AOJ's actions.  Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993).  

1. Entitlement to an evaluation in excess of 40 percent for service-connected epilepsy prior to September 3, 2021

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.  A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. § 20.202.  Withdrawal may be made by the Veteran or by his or her authorized representative.  38 C.F.R. § 20.204.

In this case, prior to the promulgation of a decision, the Veteran contacted the AOJ by telephone in January 2022 to assert that he no longer wanted to pursue the issue on appeal.  The Veteran's withdrawal was reduced to writing when the AOJ transcribed the telephonic conversation, and such has been associated with the Veteran's VA file.  Later that month, VA received the Veteran's Appeals Satisfaction Notice confirming that he wished to withdraw all remaining issues contained in the recently received Supplemental Statement of the Case.  

In light of above, the Veteran has withdrawn his substantive appeal of the issue presently before the Board. Thus, dismissal of the appealed issue is appropriate.  

 

 

L. STEPANICK

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Scott W. Dale, 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.