Citation Nr: A21016804 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 201006-114418 DATE: October 15, 2021 ORDER The appeal as to the issue of a temporary total evaluation of 100 percent that has been assigned effective from January 22, 2020 because of hospitalization over 21 days, with a 50 percent evaluation reassigned from April 1, 2020 is dismissed. FINDING OF FACT In October 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wished to withdraw the appeal as to the above issue. CONCLUSION OF LAW The criteria for dismissal of the issue of a temporary total evaluation of 100 percent that has been assigned effective from January 22, 2020 because of hospitalization over 21 days, with a 50 percent evaluation reassigned from April 1, 2020 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 November 2001 to November 2002, from January 2003 to May 2003, from January 2005 to May 2006, and from June 2009 to May 2010. By way of background, a July 2017 rating decision denied a rating in excess of 50 percent for the Veteran's service-connected posttraumatic stress disorder (PTSD). The Veteran disagreed with that decision and in December 2019, filed a VA Form 9, substantive appeal, to perfect an appeal before the Board of Veterans' Appeals (Board) under the Legacy Appeals system for the issue of entitlement to a rating in excess of 50 percent for PTSD. While that Legacy appeal was pending, in March 2020, the Veteran filed a VA Form 21-526 EZ and requested a temporary total (100 percent) disability rating for his PTSD. The Veteran indicated that he had been hospitalized from January 22, 2020 until March 16, 2020, at a VA mental health residential rehabilitation treatment program. In the April 2020 rating decision, currently on appeal to the Board under the Appeals Modernization Act (AMA), a temporary total evaluation of 100 percent was granted because of the Veteran's hospitalization for a service-connected disability over 21 days. The temporary total evaluation was assigned effective from January 22, 2020 (the date of his hospitalization) to April 1, 2020, with the 50 percent rating for the Veteran's PTSD reassigned from that date. The Veteran was notified of this decision in May 2020. In October 2020, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) as to April 2020 rating decision and May 2020 notification letter and elected to have a hearing with a Veterans Law Judge. In accordance with this Board review option, a hearing was held before the undersigned Veterans Law Judge in October 2021. Withdrawn Issue 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. § 20.204. Withdrawal may be made by the Veteran or by his authorized representative. 38 C.F.R. § 20.204. At the October 2021 Board hearing, the Veteran, through his representative, withdrew the appeal as it pertains to the issue of a temporary total evaluation of 100 percent that was assigned effective from January 22, 2020 because of hospitalization over 21 days, with a 50 percent evaluation reassigned from April 1, 2020. Specifically, it was confirmed with the Veteran and his representative that they were not in disagreement with the award of a temporary total evaluation of 100 percent for the Veteran's PTSD based on hospitalization over 21 days. They also did not disagree with the effective dates that were assigned for the temporary total evaluation. Rather, the Veteran's disagreement was with the 50 percent rating that was reassigned from April 1, 2020, for his PTSD. As outlined above, the Veteran has perfected already an appeal for the issue of a rating in excess of 50 percent for PTSD under the Legacy Appeals system. [Indeed, a separate hearing was also conducted on the same day regarding that matter, and it will be the subject of a future Board decision.] As the issue of the temporary total disability rating that was awarded in the April 2020 rating decision is not in dispute, the disagreement with the rating assigned for the Veteran's service-connected PTSD, effective April 1, 2020, is duplicative under the AMA. Therefore, the Board agrees with the Veteran and his representative that this appeal is considered moot. (Continued on the next page) The withdrawal of the issue on appeal (and of the October 2020 Notice of Disagreement) was confirmed at the hearing. Accordingly, the Board does not have jurisdiction to review the appeal under the AMA and it is dismissed. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.