Citation Nr: 19133307
Decision Date: 04/30/19	Archive Date: 04/29/19

DOCKET NO. 14-15 788
DATE:	April 30, 2019

ORDER

Entitlement to an effective date prior to May 15, 2004, for the award of a total disability rating based upon individual unemployability (TDIU rating) is dismissed.

FINDING OF FACT

In March 2019, prior to the promulgation of a decision in the appeal, the Veteran indicated that he agreed with the Regional Office’s decision on the issue of entitlement to an effective date prior to May 15, 2004, for the award of a TDIU rating.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal of the issue of entitlement to an effective date prior to May 15, 2004, for the award of a TDIU rating have been met.  38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2018).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from December 1978 to January 1987, from October 1990 to July 1991, and from March 2003 to May 2004.

In March 2016, August 2017, and February 2018, the Board remanded the issue of entitlement to an effective date prior to May 15, 2004, for development and a formal adjudication by Department of Veterans Affairs (VA) Regional Office (RO).

In March 2019, the RO issued a supplemental statement of the case addressing the issue of entitlement to an effective date prior to May 15, 2004, for the award of a TDIU rating.  Later that same month, the Veteran submitted a statement indicating that he agreed with the RO’s decision.

The Veteran’s March 2019 statement also indicated that he wanted the Board to proceed upon the March 2017 Order issued by the United States Court of Appeals for Veterans Claims (Court), which vacated the portion of the Board’s March 2016 decision concerning the proper disability evaluation to be assigned to his service-connected low back disability.  

Importantly, the Board wishes to stress to the Veteran that the Board has previously acted upon this order.  In an August 2017 decision, the Board determined that the prior rating reduction for the Veteran’s low back disability was not proper, and granted an increased evaluation of 40 percent for the Veteran’s low back disability.  

1. Entitlement to an effective date prior to May 15, 2004, for the award of a TDIU rating.

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 (2012).  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204 (2018).  Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.  In March 2019, prior to the promulgation of a decision in the appeal, the Veteran submitted a statement indicating that he agreed with the RO’s decision on the issue of entitlement to an effective date prior to May 15, 2004, for the award of a TDIU rating.  Hence, there remains no allegation of error of fact or law for appellate consideration of this issue.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.



 

Evan M. Deichert

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	W. Yates, Counsel