Citation Nr: 21065147 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 12-01 036 DATE: October 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDING OF FACT On July 13, 2021, prior to the promulgation of a decision in the appeal, the Board of Veterans' Appeals (Board) received statements from the Veteran reflecting that he was not appealing the issue of entitlement to a TDIU. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to a TDIU by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Navy from July 2001 to November 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision. The November 2009 rating decision included the agency of original jurisdiction's (AOJ's) denial of the Veteran's increased rating claim for his right knee disability. The Veteran subsequently perfected his appeal of this issue to the Board. In decisions dated in January 2015, February 2017, December 2017, and August 2019, the Board remanded the Veteran's increased rating claim for his right knee disability to the AOJ for additional development and adjudication. The Board then adjudicated this claim in a January 2021 decision. In the same decision, the Board assumed jurisdiction over the issue of entitlement to a TDIU as part and parcel of the Veteran's increased rating claim for his right knee disability under Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board then remanded the issue to the AOJ. In a May 2021 decision, the Board remanded the issue once more to the AOJ. The case has since been returned to the Board for appellate review. 1. Entitlement to a TDIU. 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. In the May 2021 remand, the Board noted that the prior January 2021 remand directed the AOJ to provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to complete. The Board observed that while the AOJ did provide the Veteran with the application, he did not submit it. The Board found that the Veteran should be provided with another opportunity on remand to submit the application and directed the AOJ to request that the Veteran complete a VA Form 21-8940. Following the Board's remand, the AOJ sent the Veteran a May 2021 letter that requested for the Veteran to complete and return a VA Form 21-8940. In July 2021, the Veteran submitted the requested VA Form 21-8940 that he electronically signed in July 2021. Under the section of the form that asked the Veteran to identify the service-connected disability that prevented him from securing or following any substantially gainful occupation, the Veteran responded "[n]one." Under the remarks section of the form, the Veteran reported that he is currently enrolled in a master's degree program seeking a Master of Science in occupational safety management. The Veteran further stated that he considered himself gainfully self-employed and expected to graduate in the summer of 2022. The Veteran stated that he was filing the form "out of protest" as well as to avoid another remand. The Veteran added that he did not wish to have his potential earnings limited by a TDIU award. The Veteran stated that he was completing the form as the Board felt it was necessary and had requested that he do so. The Board acknowledges that in the subsequent October 2021 Informal Hearing Presentation, the Veteran's representative reported that the Veteran maintained that he was entitled to a TDIU award and had not abandoned his claim for a TDIU. However, it appears that the representative was unaware of the Veteran's statement from the July 2021 VA Form 21-8940 as the representative mistakenly stated that the Department of Veterans Affairs (VA) had not received a VA Form 21-8940 as of the date of the October 2021 Informal Hearing Presentation; and the representative only stated that the Veteran had not abandoned his claim after noting that the Veteran did not respond to the AOJ's request for a VA Form 21-8940. Notably, despite this misunderstanding, the representative also stated that there was no current evidence to show that the Veteran's service-connected disabilities kept him from sustaining gainful employment. In light of the Veteran's statements in the July 2021 VA Form 21-8940 reflecting that was not interested in continuing his appeal of the issue of entitlement to a TDIU, the Board finds that there is no remaining case or controversy as to this issue on appeal. Given that there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.