Citation Nr: 20043399 Decision Date: 06/26/20 Archive Date: 06/26/20 DOCKET NO. 06-18 499 DATE: June 26, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability, prior to September 26, 2003, is dismissed. FINDING OF FACT In April 2018, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal the issue of entitlement to a TDIU due to service-connected disability, prior to September 26, 2003. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran are met. 38 U.S.C. § 7105 (d); 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1979 to April 1982. This matter initially came before the Board of Veterans’ Appeals (Board) from a December 2002 rating decision, in which the agency of original jurisdiction (AOJ) denied entitlement to a rating in excess of 40 percent for chronic lumbosacral strain. The Veteran testified before a Veterans Law Judge (VLJ) at a February 2009 hearing and a transcript of the hearing is associated with his claims file. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. In October 2017, the Board sent the Veteran a letter which informed him that the VLJ who conducted the February 2009 hearing was no longer employed at the Board, asked him to indicate whether he wanted to attend a new hearing, and indicated that a failure to respond within 30 days would result in an assumption that another hearing was not desired. The Veteran responded in November 2017 that he did not want another Board hearing and that he wished for the Board to consider his case based on the evidence of record. The Board will therefore proceed to consider his appeal. In February 2018, the Board expanded the appeal to include the inferred issue of entitlement to a TDIU, prior to September 26, 2003, as part and parcel of the increased rating matters that were then on appeal. See Harper v. Wilkie, 30 Vet. App. 345 (2018); Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board remanded the TDIU issue for further development. Entitlement to a TDIU due to service-connected disability, prior to September 26, 2003 The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205.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 Veteran or by his or her authorized representative in writing or on the record at a hearing on appeal. Id. In the present case, the Veteran’s representative submitted a signed statement from the Veteran in April 2018 in which he indicated that he wished to withdraw his appeal with respect to the issue of entitlement to a TDIU. This statement constitutes a valid withdrawal of the appeal, with respect to this issue. See Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011) (“withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant”). The United States Court of Appeals for the Federal Circuit has not addressed the criteria as to a written request to withdraw a claim. See Acree v. O’Rourke, 891 F.3d 1009, fn. 2 (Fed. Cir. 2018) (“Resolution of Acree’s appeal turns on the requirements necessary for an effective oral withdrawal of a claim at a Board hearing. We express no view on the criteria that must be satisfied when a veteran submits a written request to withdraw a claim”). As the Veteran has withdrawn the appeal as to this issue, there remains no specific determination with which the claimant disagrees. Accordingly, the Board does not have jurisdiction to review the issue on appeal, and the appeal is dismissed. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, Counsel 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.