Citation Nr: 1719075	
Decision Date: 05/31/17    Archive Date: 06/06/17

DOCKET NO.  13-16 801	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for low back strain with degenerative disc disease prior to June 17, 2016, and to a rating in excess of 20 percent from June 17, 2016, forward.


REPRESENTATION

Veteran represented by:	Jan Dils, Attorney at Law


ATTORNEY FOR THE BOARD

S. M. Stedman, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 2005 to August 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California.  The RO in Cleveland, Ohio currently has jurisdiction of the claim.

In an August 2016 rating decision, the RO, in pertinent part, granted the Veteran's claim for service connection for asthma, thereby constituting a full grant of the benefits sought, therefore that issue is no longer on appeal.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997).


FINDING OF FACT

On October 6, 2016, prior to the promulgation of a decision in the appeal, the Veteran withdrew her appeal.


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been met for the claim of entitlement to an increased disability rating for low back strain with degenerative disc disease.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

On October 6, 2016, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran's representative expressing the Veteran's desire to withdraw her appeal.  See October 6, 2016 Correspondence.

VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits.  See 38 C.F.R. § 20.204 (2016).  After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board.  Id.  Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran's claim number, and a statement that the appeal is withdrawn.  Id.  

The Veteran's notification containing her request to withdraw her claim is in writing, and it contains her name and claim number.  See October 6, 2016 Correspondence.  The Board has not yet issued a decision concerning the issue on appeal, thus the criteria are met for withdrawal of the claim.

When pending appeals are withdrawn, there are no longer allegations of factual or legal error with respect to the issues that had been previously appealed.  In such an instance, dismissal of the pending appeal is appropriate.  See 38 U.S.C.A. § 7105(d) (West 2014).  Accordingly, further action by the Board on the issues is not appropriate and the appeal should be dismissed.  Id.


ORDER

The claim of entitlement to a disability rating in excess of 10 percent for low back strain with degenerative disc disease prior to June 17, 2016, and to a rating in excess of 20 percent from June 17, 2016, forward, is dismissed.



____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs


