Citation Nr: 18158280 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-58 565A DATE: December 14, 2018 ORDER Entitlement to a compensable rating for allergic rhinitis is dismissed. REMANDED Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) prior to December 21, 2015, is remanded. FINDING OF FACT The Veteran submitted explicit, unambiguous, written intent to withdraw her appeal for entitlement to a compensable rating for allergic rhinitis. CONCLUSION OF LAW The criteria for withdrawal of the appeal for a compensable rating for allergic rhinitis have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1988 to October 1992. These matters come before the Board of Veterans’ Appeals (Board) on appeal of July 2014 (TDIU) and March 2015 (allergic rhinitis) rating decisions by the Department of Veterans Affairs (VA) Regional Offices (RO) in St. Paul, Minnesota and Roanoke, Virginia, respectively. During the pendency of this appeal, the RO granted entitlement to a TDIU effective December 21, 2015. This is considered a partial grant of the claim on appeal. In written correspondence received October 2, 2018, prior to the promulgation of a decision by the Board, the Veteran requested to withdraw her pending appeal for a compensable rating for allergic rhinitis and entitlement to a TDIU. However, in correspondence received October 3, 2018, the Veteran indicated that “[t]he VSO erred in writing [that] I was withdrawing my [TD]IU that I was awarded…I do not wish for this to interfere with my [TD]IU award…Do not withdraw [TD]IU.” Thereafter, a VA 27-0820, Report of General Information (dated October 9, 2018), notes that the Veteran called and stated that “she misunderstood the due process and that she does not have any discrepancy with the VA decision and does not with [sic] to continue processing to the BVA.” Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by her authorized representative. 38 C.F.R. § 20.204. Such a withdrawal must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the claimant. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). The Board finds that the Veteran’s request to withdraw her appeal for a compensable rating for allergic rhinitis meets the criteria of DeLisio. Thus, there remain no allegations of error of fact or law for appellate consideration with respect to this issue, and it is dismissed. REASONS FOR REMAND With resolution of doubt in the Veteran’s favor, the Board concludes that the record does not reflect that the Veteran has provided explicit and unambiguous intent to withdraw her appeal for entitlement to a TDIU. As such, the Board will consider the question of entitlement to a TDIU prior to December 21, 2015. The Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, which was received on December 19, 2012. Therefore, the period for consideration on appeal is from December 19, 2012 through December 20, 2015. 38 C.F.R. § 3.400 (o)(2). The Veteran is currently service-connected for migraine headaches rated at 50 percent from November 29, 2011; for hypothyroidism (previously rated as hyperthyroidism) as non-compensable prior to September 5, 2014, at 60 percent from September 5, 2014, and at 30 percent from April 1, 2017; and for allergic rhinitis rated as noncompensable from November 29, 2011. The Veteran’s combined schedular rating stands at 50 percent prior to September 5, 2014, 80 percent from September 5, 2014, and 70 percent from April 1, 2017. A TDIU may be awarded on an extraschedular basis under 38 C.F.R. § 4.16 (b), if it is determined that a Veteran is unemployable by reason of service-connected disability, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a). However, if it is determined that the Veteran is unemployable by reason of service-connected disability, but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), the Board cannot consider such entitlement in the first instance. Instead, the claim must be remanded so that it can be referred to VA’s Director, Compensation Service, for initial consideration. Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001). The Veteran was provided with a VA examination for her service-connected migraine headaches in October 2013. The examiner found, in part, that the Veteran is currently unable to do either sedentary or physical work. The Veteran did not meet the schedular criteria for a grant of TDIU prior to September 5, 2014. However, the evidence suggests that she may have been unable to secure or follow substantially gainful employment due to her service-connected disabilities prior to that date. Because the Board may not make such a determination in the first instance, the claim must be remanded for submission to the Director, Compensation Service, for extraschedular consideration of entitlement to a TDIU prior to December 21, 2015. See 38 C.F.R. § 4.16 (b); Bowling, 15 Vet. App. at 9-10. The Veteran receives VA treatment for her service-connected disabilities; therefore, all outstanding VA treatment records should be procured. This matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from August 2018 to the present. 2. Refer the claim to the Director, Compensation Service, for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis prior to December 21, 2015. Include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue, to include findings as to unemployability noted on a VA examination report in October 2013. See 38 C.F.R. § 4.16 (b). 3. Thereafter, review the expanded record and readjudicate the appeal. If the benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel