11-00 535 ( 2017 )

Citation Nr: 1722219
Decision Date: 06/15/17 Archive Date: 06/29/17
DOCKET NO. 11-00 535 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to an initial rating in excess of 10 percent for a cervical spine strain.
2. Entitlement to an initial compensable rating for migraine headaches.
REPRESENTATION
Veteran represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
T. Carter, Counsel
INTRODUCTION
The Veteran served on active duty in the United States Air Force from July 1985 to September 2008.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. During the course of the appeal, the claims file was transferred to the RO in Cleveland, Ohio.
In September 2013, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) who has since retired. The Veteran was notified by letter in February 2017 that the VLJ who conducted the September 2013 hearing is no longer employed by the Board and thus was offered the opportunity to have another hearing before a member of the Board. In April 2017, the Veteran responded with notification that he did not wish to appear at an additional hearing.
In April 2014, the Board remand issues for higher initial ratings for left groin strain, sinusitis, cervical spine strain, and migraine headaches for additional evidentiary development. These issues were readjudicated in a July 2015 supplemental statement of the case (SSOC). In a September 2016 VA Form 9, the Veteran noted he read the SSOC and is only appealing the issues for cervical spine and migraines. VA has taken no further action with regard to left groin strain and sinusitis which might indicate waiver of the perfection requirement. See Evans v. Shinseki, 25 Vet. App. 7 (2011). As a result, the remaining issues listed on the title page were readjudicated in a November 2016 SSOC and have been returned to the Board for appellate review.
FINDING OF FACT
In an April 2017 VA Form 21-4138, prior to the promulgation of a decision in the appeal, the Veteran indicated a desire for withdrawal of the issues on appeal for higher initial ratings for cervical spine strain and migraine headaches.
CONCLUSION OF LAW
The criteria for withdrawal of an appeal by the Veteran for the issues of entitlement to an initial rating in excess of 10 percent for a cervical spine strain and an initial compensable rating for migraine headaches have been met. 38 U.S.C.A. § 7105(d)(5) (West 2014); 38 C.F.R. § 20.204 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
Under 38 U.S.C.A. § 7105(d)(5), 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 at any time before the Board promulgates a decision and must be in writing except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 20.204. Prior to the promulgation of a decision in the appeal, the Veteran indicated his desire for withdrawal of the issues on appeal for higher initial ratings for cervical spine strain and migraine headaches. As he has withdrawn his appeal, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on these issues, and they are dismissed.
ORDER
The appeal is dismissed.
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D. Martz Ames
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs