Citation Nr: 23044576
Decision Date: 08/10/23	Archive Date: 08/10/23

DOCKET NO. 20-20 765
DATE: August 10, 2023

ORDER

Entitlement to a higher rating for muscle group IV, shoulder and girdle muscle injury, residuals of gunshot wound to right upper chest, is dismissed.

FINDING OF FACT

At the March 2023 Board Hearing, the Veteran requested to withdraw the issue of entitlement to an increased rating for muscle injury.

CONCLUSION OF LAW

The criteria for dismissal of entitlement to a higher rating for muscle group IV, shoulder and girdle muscles injury, residuals of gunshot wound to right upper chest, have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205 (2022).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from June 1968 to January 1970.

This matter is before the Board on appeal from an October 2018 rating decision issued by a Regional Office of the Department of Veterans Affairs (VA).?

The Veteran testified before the undersigned Veterans Law Judge at a February 2022 Board Hearing.

In a November 2022 Decision, the Board denied entitlement to an increased evaluation for muscle group IV shoulder and girdle muscle injury.  The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC).   Veteran and the Office of the General Counsel for VA (collectively referred to as "the Parties") resolved that appeal by way of a June 2023 Joint Motion for Partial Remand (JMPR).  The Parties agreed that the Board needed to readjudicate this issue and address the Veteran's entitlement to a VA examination.  The issue was vacated and remanded to the Board.

1. Entitlement to a higher rating for muscle group IV, shoulder and girdle muscle injury, residuals of gunshot wound to right upper chest, is dismissed.

By way of background, the Board denied entitlement to an increased evaluation for muscle group IV shoulder and girdle muscle injury in a November 2022 decision.  The Veteran appealed this issue to CAVC.  In a June 2023 decision, CAVC vacated the denial, and the issue was remanded.  Just prior to this decision, during a March 2023 hearing for separate issues pending in the AMA system, the Veteran requested to withdraw the issue of entitlement to an increased rating for muscle injury disability affecting muscle group IV.  It was discussed that the issue was adjudicated in the November 2022 Board decision, in the Legacy appeal system.  The legal consequences of withdrawing the issue from appeal were explained.  See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).  The Veteran's representative reiterated the request to withdraw the issue from appeal, and that the withdrawal was explained and discussed with the Veteran.  The withdrawal was accepted, and the issue was dismissed in a subsequent July 2023 opinion along with the issues pending in the AMA system.

The Board notes that the above-captioned issue was still active in the legacy appellate system following the JMR.  The dismissal in the July 2023 Board decision was for the AMA appellate stream as to the same increased rating claim (from a supplemental claim application).  Although confusing, it is clear that the Veteran wished to no longer pursue his appeal a higher rating for muscle group IV-whether under the legacy appellate system or the AMA appellate system. Therefore, the appeal is dismissed.   

 

H.M. WALKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	AK

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.