Citation Nr: 1307342	
Decision Date: 03/04/13    Archive Date: 03/11/13

DOCKET NO. 02-19 856	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), including on an extraschedular basis. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.M. Rutkin, Associate Counsel






INTRODUCTION

The Veteran served on active duty from May 1959 to May 1960. 

This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in August 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

The Veteran was scheduled for a personal hearing with a Decision Review Officer (DRO) at the RO in May 2005, but he failed to report for the hearing without explanation. Consequently, the request for a personal hearing is considered to have been withdrawn. See 38 C.F.R. § 20.704(d) (West 2002) . 

The case was previously before the Board in January 2007, September 2009, July 2010, and August 2012, both from the RO and from the United States Court of Appeals for Veterans Claims (Court). 


FINDING OF FACT

The Veteran expressed his wish to withdraw this appeal in letters bearing his name and claim number which were received by VA in September 2012, and he also submitted a February 2013 motion to withdraw this appeal which also bears his name and claim number. 


CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2012).




REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran submitted a September 2012 letter bearing his name and claim number which notes restoration of the 40 percent rating for varicose veins of the right leg-
as granted in the Board's August 2012 decision-and states "Lets [sic] just drop the TDIU part." The letter states a little further down, "[J]ust don't pursue the TDIU." He submitted another letter in September 2012, also bearing his name and claim number, which again expresses his wish for VA to "drop the TDIU part." In February 2013, he submitted a formal motion to withdraw this appeal which includes his name and claim number.

VA regulation provides for the withdrawal of an appeal to the Board by the submission of a written request to that effect at any time before the Board issues a final decision on the matter in question. See 38 C.F.R. § 20.204(b) (2012). After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board. 38 C.F.R. § 20.204(b). Appeal withdrawals must be in writing and must include the name of the Veteran, the applicable claim number, and a statement that the appeal is withdrawn. Id. 

As of February 2013, the date that the Board received the claims file, including the above letters and motion to withdraw, the Board had not yet issued a final decision on this case. The September 2012 letters and motion to withdraw are in writing, include the Veteran's claim number, and clearly express his desire to withdraw the current appeal. Therefore, the Veteran's withdrawal of the appeal is valid. See id. 

When pending appeals are withdrawn, there is no longer an allegation of error of fact or law with respect to the determinations that had been previously appealed. Consequently, in such an instance, dismissal of the pending appeal is appropriate. See 38 U.S.C.A. § 7105(d) (West 2002).

Accordingly, further action by the Board on the claim at issue is not appropriate and the Veteran's appeal should be dismissed. Id.  


ORDER

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), including on an extraschedular basis, is dismissed. 




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs