Citation Nr: 18152286 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 16-43 072 DATE: November 21, 2018 ORDER Entitlement to an additional temporary total rating due to hospital treatment in excess of 21 days for the service-connected posttraumatic stress disorder (PTSD), alcohol dependence and poly substance dependence under 38 C.F.R. 4.29 is denied. Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is dismissed. Whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for erectile dysfunction as secondary to the service-connected PTSD is dismissed. FINDINGS OF FACT 1. The Veteran’s claim for a temporary total disability rating due to hospitalization over 21 days was granted in a December 2016 rating decision for the period of July 5, 2016 to October 31, 2016; there is no further evidence of any additional hospitalization over 21 days due to his service-connected PTSD. 2. In an August 2016 VA Form 21-4128, the Veteran stated that he wished to “withdraw [his] appeal for PTSD and erectile dysfunction.” CONCLUSIONS OF LAW 1. The criteria for additional entitlement to a temporary total rating due to a hospitalization over 21 days for a service-connected condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.29. 2. The criteria for withdrawal of an appeal of the issues of entitlement to a rating in excess of 50 percent for PTSD and whether new and material evidence has been received to reopen the previously denied claim for entitlement to service connection for erectile dysfunction by the appellant have been met. 38 U.S.C. §§ 7105(b) and (d); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to October 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2011 and December 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The July 2011 rating decision denied entitlement to a rating in excess of 50 percent for PTSD and denied reopening the previously denied claim for entitlement to service connection for erectile dysfunction. The December 2016 rating decision assigned a temporary 100 rating effective July 5, 2016 through October 31, 2016. The Board notes that although the Veteran indicated in an August 2016 correspondence that he wished to “withdraw his representative,” he appeared to be in communication with his attorney thereafter. See August 2016 VA Form 9 and January 2017 Notice of Disagreement signed by Veteran accompanied by his attorney’s cover letters. In April 2018, the attorney also submitted a brief on the Veteran’s behalf. Therefore, the Board recognizes the attorney representative as the Veteran’s representative of record. 1. Entitlement to a temporary total rating due to hospital treatment in excess of 21 days for the service-connected posttraumatic stress disorder (PTSD), alcohol dependence and poly substance dependence under 38 C.F.R. 4.29 The Veteran contends, without specificity, that he is entitled to an additional period of a temporary total due to his hospitalization over 21 days for his service-connected PTSD. See January 2017 Notice of Disagreement. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Subject to the provisions of paragraphs (d), (e), and (f) of § 4.29, this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. 38 C.F.R. § 4.29 (a). In September 2016, the Veteran filed a claim for a temporary total due to hospitalization over 21 days due to his PTSD. The Veteran’s claim for a temporary total disability rating due to hospitalization over 21 days was granted in a December 2016 rating decision for the period of July 5, 2016 through October 31, 2016. VA treatment records indicate that the Veteran was admitted for in-patient services on July 5, 2016 and discharged on October 28, 2016. As noted above, the increased rating is effective the first day of continuous hospitalization (July 5, 2016) through the last day of the month of hospital discharge (October 31, 2016). Upon review of the Veteran’s medical records, there are no other times where the Veteran was hospitalized for over 21 days. The Veteran has not provided specific medical evidence demonstrating an extended or additional period of hospitalization due to PTSD to warrant any additional temporary total rating under 38 C.F.R. § 4.29. Thus, the appeal is denied. 2. Entitlement to a rating in excess of 50 percent for PTSD and the claim to reopen the previously denied claim for entitlement to service connection for erectile dysfunction In an August 2016 VA Form 21-4128 signed by the Veteran, the Veteran stated that he wished to “withdraw [his] appeal for PTSD and erectile dysfunction.” Parenthetically, the Board notes that the RO issued a Statement of the Case (SOC) in August 2016, after the Veteran filed his withdrawal correspondence. The Veteran subsequently filed a VA Form 9. The Board has considered the applicability of the United States Court of Appeals for Veterans’ Claims (Court) decision in Percy v. Shinseki, 23 Vet. App. 37 (2009)(VA may explicitly or implicitly waive the requirement of a substantive appeal by taking action indicating to a veteran that the appeal was still active). However, the Board finds that this case is distinguishable from Percy. In that regard, the appellant in Percy – unlike the Veteran in the instant case – did not file a clear and unambiguous notice of intent to withdraw the issues on appeal. A withdrawal of an appeal is deemed a withdrawal of the notice of disagreement and the substantive appeal. An adequate and timely notice of disagreement is a jurisdictional bar to appellate consideration, and such an issue may not be waived. Id. at 41. (Continued on the next page)   As the Veteran has asserted that he wanted to withdraw the issues on appeal, under 38 U.S.C. § 7105, the Board does not have jurisdiction over the issues which were withdrawn. Pursuant to 38 C.F.R. § 20.204, a Veteran can withdraw an appeal through written correspondence. As a matter of law, a withdrawal of an appeal is effective when received. See 38 C.F.R. § 20.204 (b)(3). The Veteran’s letter of withdrawal having been received August 9, 2016, effective that date there remained no allegations of errors of fact or law for appellate consideration with respect to these matters, and the Board did not have jurisdiction to review this claim; as such, it is dismissed. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville