Citation Nr: 1310705	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  10-11 538	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD), to include the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected PTSD.  


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

Elizabeth Jalley, Counsel


INTRODUCTION

The Veteran served on active duty from June 2004 to August 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

The May 2009 rating decision granted entitlement to service connection for PTSD and assigned a 30 percent disability rating, effective August 29, 2008.  The Veteran filed a notice of disagreement in July 2009, a statement of the case was issued in February 2010, and a substantive appeal was received in March 2010.

In June 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A transcript of this hearing was prepared and associated with the claims file.

In March 2012, the Board remanded this case for additional development.  While on remand, the Veteran's PTSD disability rating was increased to 70 percent, effective August 29, 2008.  The case was returned to the Board for further adjudication.

As indicated above, the claim on appeal includes the issue of entitlement to a TDIU due to the Veteran's service-connected PTSD.  This determination is based on a holding by the United States Court of Appeals for Veterans Claims (Court) that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if a disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453 (2009).  Because the Veteran's increased rating claim involved the contention that he is only able to work part-time because of his PTSD, the TDIU issue is considered to have been raised as a part of the increased rating claim.  


FINDING OF FACT

In February 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he was satisfied with the increased rating that was awarded for his PTSD and that he wished to withdrawn any remaining issues that had been remanded. 


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran, or his authorized representative, 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.  In the present case, the Veteran has withdrawn this appeal via a February 2013 "Appeals Satisfaction Notice," after being informed that the disability rating for his service-connected PTSD had been increased from 30 percent to 70 percent, effective from August 29, 2008, to include the issue of entitlement to a TDIU due to the service-connected PTSD.  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 is dismissed.




____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs