Citation Nr: 1320040	
Decision Date: 06/21/13    Archive Date: 07/02/13

DOCKET NO.  09-47 726	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

Entitlement to a total disability rating due to individual unemployability (TDIU) prior to April 22, 2010.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J.R. Bryant, Counsel



INTRODUCTION

The Veteran served on active duty from August 1982 to July 2008.  

This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO).

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system.  


FINDING OF FACT

In a November 2010 statement, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to TDIU.  He also submitted a May 2013 motion to withdraw this appeal which also bears his name and claim number. 


CONCLUSION OF LAW

The criteria for withdrawal of the Substantive Appeal in the claim for TDIU prior to April 22, 2010 have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.101, 20.202, 20.204 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision.  38 C.F.R. § 20.204.  When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists.  In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate.  38 U.S.C.A. § 7105(d); 38 C.F.R. §§ 20.101, 20.202.

In October 2009, the Veteran filed a substantive appeal of the RO's March 2009 denial of TDIU prior to April 22, 2010.  In a written statement submitted in November 2010, he requested withdrawal of his appeal.  In May 2013, he submitted a formal motion to withdraw this appeal which includes his name and claim number.  In view of his expressed desire, further action with regard to this issue is not appropriate. 

Accordingly, the Board does not have jurisdiction to review the claim of entitlement to TDIU.  This claim must, therefore, be dismissed, without prejudice.  38 U.S.C.A. § 7105(b)(2), (d)(5); 38 C.F.R. §§ 20.202, 20.204(b),(c).


ORDER

The appeal as to the issue of entitlement to TDIU prior to April 22, 2010 is dismissed.



		
F. JUDGE FLOWERS
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs