Citation Nr: 20005565
Decision Date: 01/23/20	Archive Date: 01/23/20

DOCKET NO. 13-13 972
DATE: January 23, 2020

ORDER

The appeal regarding entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to November 2, 2010, is dismissed.

FINDING OF FACT

On August 29, 2019, prior to the promulgation of a decision, the Board received notification from the Veteran’s attorney that the Veteran wished to withdraw from appeal the issue of entitlement to a TDIU for the period prior to November 2, 2010.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1966 to August 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In January 2017, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record.  

In June 2017, the Board remanded this appeal – specifically, the issues of entitlement to an increased rating for PTSD, and entitlement to a TDIU as part of the PTSD increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009).  In a March 2019 rating decision, the RO granted a total 100 percent schedular rating for PTSD, effective November 2, 2010, thereby rendering moot the issue of entitlement to a TDIU from that date.  See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period).  However, as the underlying PTSD increased rating claim upon which the TDIU was granted was received in November 2009, the issue of entitlement to a TDIU prior to November 2, 2010, remained on appeal and has now been returned to the Board.

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.205.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.205.  In Acree v. O’Rourke, the Federal Circuit Court of Appeals held that an effective claim 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 veteran. 891 F.3d 1009 (Fed. Cir. 2018).

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In the present case, the Veteran, through his attorney, has withdrawn the appeal for a TDIU for the period prior to November 2, 2010.  The Board finds that this communication reflects an explicit and unambiguous withdrawal of the Veteran’s claim and demonstrates a full understanding of the effect of such withdrawal, particularly given the Veteran’s representation by a private attorney.  As a result, 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.

 

 

S. C. Krembs

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Fagan

The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.