15-18 907

• Court: Board of Veterans' Appeals
• Decided: August 9, 2018
• Docket: 15-18 907
• Status: Unpublished

Opinion

Citation Nr: 1829786 Decision Date: 08/09/18 Archive Date: 08/17/18

DOCKET NO. 15-18 907 ) DATE ) )

On appeal from the decision of the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1. Entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome and gastroesophageal reflux disease.

2. Entitlement to an initial rating in excess of 30 percent for migraine headaches.

3. Entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to March 23, 2015, and in excess of 20 percent since that date.

4. Entitlement to an initial rating in excess of 10 percent for left knee patellar tendonitis.

5. Entitlement to an initial rating in excess of 10 percent for right knee patellar tendonitis.

6. Entitlement to an initial rating in excess of 10 percent for left ankle sprain and osteoarthritis.

7. Entitlement to an initial compensable rating for right ankle sprain and ostearthritis prior to March 19, 2015, and in excess of 10 percent since that date.

8. Entitlement to an initial rating in excess of 10 percent for left shoulder strain.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

J. Smith, Counsel

INTRODUCTION

The Veteran served on active duty from August 2007 to February 2014 in the United States Army.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

In a March 2015 rating decision, the RO granted a higher, 20 percent rating for the lumbar spine disability, effective March 23, 2015, and a higher, 10 percent rating for the right ankle disability effective, March 19, 2015. As these were not full grants of the benefits sought on appeal, and the Veteran did not indicate that he agreed with the increased ratings, his claims remained on appeal. See AB v. Brown, 6 Vet. App. 35 (1993).

In April 2018, the Veteran testified before the undersigned during a hearing at the RO. A transcript of the hearing is included in the electronic claims file.

FINDING OF FACT

In April 2018, after certification of the claims to the Board and prior to the promulgation of a decision in the appeal, the Veteran requested that his entire appeal be withdrawn.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific errors of fact or law in the determination being appealed. 38 U.S.C.A. § 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.

During the April 2018 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal in its entirety. The undersigned clarified with the Veteran that he desired a withdrawal of all issues, and the Veteran affirmed a withdrawal of the entire appeal. See Hearing Transcript at page 2. The Veteran fully understood the consequences of his withdrawal, as shown by his discussion with the undersigned that he has already been awarded a total disability rating with a 2014 effective date. Given this, he did not wish to pursue additional claims for higher ratings. He had a veterans service organization (VSO) representative present at the hearing, and both the representative and the Veteran participated in the proceeding. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018).

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.

ORDER

The appeal of entitlement to an initial rating in excess of 30 percent for irritable bowel syndrome and gastroesophageal reflux disease is dismissed.

The appeal of entitlement to an initial rating in excess of 30 percent for migraine headaches is dismissed.

The appeal of entitlement to an initial rating in excess of 10 percent for a lumbar spine disability prior to March 23, 2015, and in excess of 20 percent since that date, is dismissed.

The appeal of entitlement to an initial rating in excess of 10 percent for left knee patellar tendonitis is dismissed.

The appeal of entitlement to an initial rating in excess of 10 percent for right knee patellar tendonitis is dismissed.

The appeal of entitlement to an initial rating in excess of 10 percent for left ankle sprain and osteoarthritis is dismissed.

The appeal of entitlement to an initial compensable rating for right ankle sprain and ostearthritis prior to March 19, 2015, and in excess of 10 percent since that date, is dismissed.

The appeal of entitlement to an initial rating in excess of 10 percent for left shoulder strain is dismissed.

M. TENNER Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs