Citation Nr: 21065728 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-49 327 DATE: October 27, 2021 ORDER The appeal as to the issue of whether the Veteran's 100 percent PTSD with TBI rating is permanent and total for purposes of 38 C.F.R. §§ 3.327(b)(2)(iii), 3.344, to include the issue of entitlement to an increased evaluation above 100 percent for posttraumatic stress disorder (PTSD) with traumatic brain injury (TBI), is dismissed. FINDING OF FACT On October 7, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of this appeal is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the appellant, through his authorized representative, 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 with the United States Army from September 2002 to February 2003 and from June 2006 to June 2009. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which granted an increased disability rating of 100 percent for the evaluation of residuals of TBI with PTSD, effective from May 24, 2016, the date of the Veteran's increased rating claim. The Veteran's notice of disagreement (NOD) was received in March 2017. In his NOD, he asserted that his PTSD rated as 100 percent should be deemed permanent and total. The RO issued the statement of the case (SOC) in September 2017, and, inexplicably characterized the issue on appeal as, "Entitlement to an increased evaluation above 100 percent for PTSD with TBI." Also, in September 2017 correspondence, the RO notified the Veteran that his claim for a finding of permanent and total disability must be filed on the correct claim form. The Veteran's VA Form 9, substantive appeal was received in September 2017. The Veteran again indicated that he wished to have his 100 percent rating for PTSD with TBI deemed permanent and total. He also requested to appear for a live videoconference hearing at a local VA office before a member of the Board. In an August 2019 rating decision issued during the pendency of the appeal, the RO continued the 100 percent rating for the service-connected PTSD. In addition, the RO determined that the evidence did not show a likelihood of improvement in the future, and as such, the 100 percent rating was continued permanent. Although the Veteran's permanent and total claim had been granted by the RO, the issue certified to the Board on appeal included entitlement to a disability rating in excess of 100 percent for the service-connected PTSD with TBI because of the RO's characterization of the claim on the September 2017 SOC. As such, the Veteran was subsequently scheduled for a Board hearing in March 31, 2020 based on his VA Form 9 election; however, that hearing was postponed due to the COVID-19 pandemic. It was rescheduled to July 20, 2020 and although the Veteran was notified of the date, time, and location by mail, he failed to appear to the hearing. Notably, in April 2020, a report of general information indicated that the Veteran was requesting to withdraw his appeal and did not want to proceed. Thus, the hearing is considered withdrawn. See 38 C.F.R. § 20.704(e). 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. "[W]ithdrawal 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." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In the present case, the Veteran, through his authorized representative, has withdrawn this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration. In an April 2020 report of general information, the Veteran reported that he is requesting to withdraw his appeal. He reported that he was at 100 percent and did not want to proceed with his appeal. In an April 2020 statement in support of the claim submitted by the Veteran's representative, they reported that the Veteran is requesting to withdraw his pending appeal due to the Veteran's disability being at 100 percent. In the October 2020 informal hearing presentation, the Veteran's representative reported that he was satisfied with his 100 percent disability rating for PTSD with TBI. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.