Citation Nr: 21064888
Decision Date: 10/21/21	Archive Date: 10/21/21

DOCKET NO. 18-47 494
DATE: October 21, 2021

ORDER

Entitlement to a rating in excess of 50 percent for major depressive disorder prior to September 26, 2019, and in excess of 70 percent thereafter is dismissed.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to May 30, 2020 is dismissed.

FINDING OF FACT

In September 2021, prior to the promulgation of a decision in the appeal, the Veteran withdrew his claims for entitlement to a rating in excess of 50 percent for major depressive disorder prior to September 26, 2019, and in excess of 70 percent thereafter, and entitlement to TDIU prior to May 30, 2020.

CONCLUSION OF LAW

The criteria for withdrawal of the appeal of the issues of entitlement to a rating in excess of 50 percent for major depressive disorder prior to September 26, 2019, and in excess of 70 percent thereafter, and entitlement to TDIU prior to May 30, 2020 have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1975 to February 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, inter alia, continued the 50 percent rating for the Veteran's service-connected major depressive disorder and denied entitlement to TDIU.

While the appeal was pending, in a January 2020 rating decision, the RO increased the rating for the Veteran's service-connected major depressive disorder to 70 percent, effective September 26, 2019.  Subsequently, in a January 2021 rating decision, the RO granted entitlement to TDIU, effective May 30, 2020.

1. Entitlement to a rating in excess of 50 percent for major depressive disorder prior to September 26, 2019, and in excess of 70 percent thereafter is dismissed.

2. Entitlement to TDIU due to service-connected disability prior to May 30, 2020 is dismissed.

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 19.55(a).

In connection with his appeal, the Veteran requested a Board hearing.  In a letter dated August 31, 2021, the Veteran was notified of the time and date of the hearing, which was scheduled to be held on October 19, 2021.  

In September 2021, the Veteran advised VA that he wished to withdraw both his October 2021 Board hearing as well as the remainder of his appeal, given the actions by the RO in granting an increased rating and TDIU.  See September 23, 2021 Report of General Information.  

As such, the Board finds the criteria for withdrawal of the appeal have been met.  The writing component is satisfied by the AOJ memorialization of the phone conversation via a Report of General Information prepared contemporaneous in time with the phone call.  See Hanson v. Brown, 9 Vet. App. 29 (1996) (accepting a Report of Contact as satisfying withdrawal criteria).  As noted, this report of contact contained all necessary information identified in 38 C.F.R. § 19.55.  Thus, the criteria for a withdrawal have been met and 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.

 

 

K. Conner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Ruddy, Associate 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.