Citation Nr: 1803103 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 04-00 163A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to March 14, 2003, for the grant of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). REPRESENTATION Veteran represented by: Joseph Moore, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted the Veteran's claim of entitlement to service connection for post-traumatic stress disorder (PTSD) and assigned a 30 percent disability rating, effective from October 17, 2002. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in September 2004. A transcript of this hearing was prepared and associated with the claims file. In December 2004, the case was remanded to the RO for additional development. Subsequently, in a December 2005 rating decision, the RO increased the disability rating for the Veteran's PTSD from 30 percent to 50 percent, effective November 14, 2005. In a March 2007 decision, the Board denied the Veteran's claim of entitlement to an initial disability rating for PTSD in excess of 30 percent from October 17, 2002 to November 13, 2005, and in excess of 50 percent from November 14, 2005. The Veteran subsequently submitted a Notice of Appeal to the United States Court of Appeals for Veterans Claims (Court), indicating his disagreement with the denial of his increased rating claims for PTSD. The Court issued an October 2007 Joint Motion for Remand (JMR), setting aside the March 2007 Board decision, and remanding these matters for compliance consistent with the joint motion. In a January 2008 decision, the Board denied an initial disability rating in excess of 30 percent for PTSD from October 17, 2002 to November 13, 2005, and granted an initial disability rating for PTSD of 70 percent, but no higher, effective November 14, 2005. The Veteran submitted a Notice of Appeal to the Court indicating his disagreement with the Board's denial of an initial disability rating in excess of 30 percent for PTSD from October 17, 2002 to November 13, 2005. The Court issued a June 2008 JMR setting aside the January 2008 Board decision, in part, and remanding the issue of an initial disability rating in excess of 30 percent for PTSD from October 17, 2002 to November 13, 2005 for readjudication. In a February 2008 rating decision, the RO implemented the January 2008 Board decision by assigning a 70 percent disability rating for PTSD, effective November 14, 2005. In a May 2008 rating decision, the RO granted a TDIU rating based on the Veteran's service-connected PTSD, effective November 14, 2005. In a February 2009 decision, the Board denied the Veteran's claim of an initial disability rating in excess of 30 percent for PTSD from October 17, 2002 to November 13, 2005. The Veteran submitted a Notice of Appeal to the Court indicating his disagreement with the denial of an increased rating for PTSD. The Court issued an April 2011 Memorandum Decision setting aside the February 2009 Board decision, and remanding the issue of an initial disability rating in excess of 30 percent for PTSD from October 17, 2002 to November 13, 2005, as well as the issue of entitlement to a temporary total disability rating pursuant to 38 C.F.R. § 4.29, to the Board. As stated in the April 2012 Board decision, a review of the record indicated that the issue of entitlement to a TDIU due to the Veteran's service-connected PTSD prior to November 14, 2005, was reasonably raised by the record and specifically raised by the Veteran. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board denied the Veteran's claim of an initial disability rating in excess of 30 percent for PTSD from October 17, 2002 to March 13, 2003; granted an initial disability rating of 70 percent, but no higher, for PTSD from March 14, 2003; and granted an earlier effect date of March 14, 2003 for the assignment of a TDIU rating. Further, in compliance with the April 2011 Memorandum Decision, the issue of entitlement to a temporary total disability rating pursuant to 38 C.F.R. § 4.29 was determined to be on appeal and was remanded for further development. The Veteran subsequently submitted a Notice of Appeal to the Court, indicating his disagreement with the effective date assigned for the TDIU rating. The Court issued an August 2013 Memorandum Decision setting aside the April 2012 Board decision, in part, and remanding the issue of entitlement to an effective date prior to March 14, 2003, for the grant a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). In September 2014, the Board remanded the issues of entitlement to an effective date prior to March 14, 2003, for the grant of a TDIU on an extraschedular basis and entitlement to a temporary total disability rating to the AOJ for additional development. Thereafter, in a December 2016 rating decision, the RO granted entitlement to a temporary total disability rating from November 18, 2002, to December 31, 2002, due to hospitalization over 21 days. See 38 C.F.R. § 4.29. This constitutes a full grant of the issue of entitlement to a temporary total rating due to hospitalization as this is the maximum allowable time under the regulation. Id. Accordingly, that issue is no longer on appeal. FINDING OF FACT In December 2017, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal of the issue of entitlement to an effective date prior to March 14, 2003, for the grant of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). CONCLUSION OF LAW The criteria for withdrawal of the appeal of the issue of entitlement to an effective date prior to March 14, 2003, for the grant of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) by the Veteran have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017). 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. § 7105. 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. 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 withdrew the issue currently on appeal. Specifically, in a December 2017 letter, the Veteran's representative informed the Board of the Veteran's desire to withdraw his appeal. 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 issue of entitlement to an effective date prior to March 14, 2003, for the grant of a total disability rating based on individual unemployability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is dismissed. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs