Citation Nr: 1301067	
Decision Date: 01/10/13    Archive Date: 01/16/13

DOCKET NO.  07-35 524	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

B. Berry, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1980 to February 1982.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in September 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Board remanded this matter in January 2010 and July 2011 for further development.  After completing the requested actions to the extent possible, the RO continued the denial of the claim as reflected in the August 2012 supplemental statement of the case and returned this matter to the Board for further appellate consideration.

The issue of entitlement to an increased rating for chronic lumbar muscular strain has been raised by the record in a November 2011 statement by the Veteran, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDING OF FACT

Prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran requesting a withdrawal of the appeal for the issue of entitlement to a TDIU.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran regarding the issue of entitlement to a TDIU have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).





REASONS AND BASES FOR FINDING AND CONCLUSION

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C.A. § 7105 (West 2002).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

The Veteran indicated in statements dated in November 2011 and May 2012 that he is not seeking unemployability, but that he would like a higher disability rating for his back.  He also asserted in a September 2012 written statement that this was his third attempt to let VA know that he is not seeking 100 percent unemployability and that he is asking for a compensable disability rating for his service-connected back disability.  The Board interprets these statements by the Veteran as a request to withdraw the issue of entitlement to a TDIU.  Hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the noted issue and the appeal is dismissed insofar as this issue is concerned.


ORDER

The appeal is dismissed as to the issue of entitlement to a TDIU.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs