Citation Nr: A21020032 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200113-60283 DATE: December 15, 2021 ORDER The appeal as to entitlement to a total disability rating based on individual unemployability (TDIU) is dismissed. FINDING OF FACT In written, signed correspondence, dated in October 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, that a withdrawal of the appeal as to the issue of entitlement a TDIU, is requested. CONCLUSION OF LAW The criteria for withdrawal of the appeal as to entitlement to a TDIU have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1989 to April 1993. The rating decision on appeal was issued in November 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The November 2019 rating decision denied the claim for entitlement to a TDIU because the evidence submitted was not new and relevant. However, a determination, as to whether new and relevant evidence has been received, is not a requirement for a TDIU claim, even when the claim has been previously finally denied, and thus, the Board has characterized the issue as entitlement to a TDIU. In the January 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Hearing option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the requested hearing or within 90 days following the requested hearing. 38 C.F.R. § 20.302(a). In this regard, the Board acknowledges the Veteran requested a Board hearing, which has not been afforded to him. Additionally, in February 2021, the Veteran requested a copy of his claims file which has not yet been provided to him. However, no further action is required as to these issues, or any other due process deficiency, if such exists, given that this appeal is being dismissed as the Veteran has withdrawn the appeal. 38 C.F.R. § 20.302(a). As final preliminary matter, a March 2020 letter informed the Veteran that his appeal was being placed on the Board's Hearing docket and that he had 90 days from the date the Board received his Board Appeal (VA Form 10182) or until the Board issued a decision (whichever came first) to change his representative. In a statement received by VA in October 2021, Jan D. Dils, an attorney, withdrew as the Veteran's representative, and explained that due to the Veteran's request to withdraw his appeal, continuation of representation was impossible. Thus, good cause has been demonstrated for the withdrawal of representation. 38 C.F.R. § 20.6(a)(2). To date, the Veteran has not appointed another representative. As such, the Board will recognize the Veteran as unrepresented. 1. The appeal as to entitlement to a TDIU 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. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.205. The withdrawal must contain the name of the Veteran, the VA file number, and a statement that the appeal is withdrawn. In written, signed correspondence, which included the VA file number, and was dated in October 2021, the Veteran requested "that all appeals pending before the Board of Veterans' Appeals be withdrawn immediately." In October 2021, at the time of the Veteran's statement, besides the appeal herein, the Veteran also had an appeal pending before the Board as to the issue of entitlement to service connection for migraine headaches, under docket 200721-98514. He also has a pending appeal as to the propriety of a reduction of the rating for his right hip degenerative arthritis, from 30 percent to noncompensable (zero percent), effective September 6, 2017, under docket 20-24 694. Further, in a November 2021 Report of General Information, the Veteran more specifically stated he would like to cancel all appeals pending with VA, specifically docket 20-24 694 (reduction of right hip degenerative arthritis), docket 200721-98514 (service connection for migraine headaches), and docket 200113-60283 (the appeal herein for entitlement to a TDIU). The appeal for entitlement to service connection for migraine headaches, under docket 200721-98514 was dismissed by the Board in December 2021, and the appeal as to the propriety of a reduction of the rating for right hip degenerative arthritis, under docket 20-24 694, will be addressed by the Board in a separate decision, if otherwise in order. As a result, there remain no allegations of error of fact or law for appellate consideration with regard to the issue of entitlement to a TDIU, under docket 200113-60283, which is the appeal herein. Accordingly, it is therefore dismissed. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.