Citation Nr: 21007993
Decision Date: 02/11/21	Archive Date: 02/11/21

DOCKET NO. 16-12 686
DATE: February 11, 2021

ORDER

The issue of entitlement to a total disability rating based on unemployability (TDIU) prior to October 13, 2007 on an extraschedular basis is dismissed.

FINDING OF FACT

In November 2020, prior to the promulgation of a Board of Veterans’ Appeals (Board) decision, the Veteran submitted a written statement expressing that he wished to withdraw from appellate consideration the issue of entitlement to a TDIU prior to October 13, 2007 on an extraschedular basis.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal as to the issue of entitlement to a TDIU prior to October 13, 2007 on an extraschedular basis have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55; Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677* (Aug. 31, 2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1970 to May 1974 and from December 1974 to September 1977.

This matter comes before the Board on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  Jurisdiction of the Veteran’s claims file currently resides with the New York, New York RO.

In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In March 2019, the Board remanded the issue of entitlement to a TDIU prior to April 8, 2014 for further development.  Specifically, the Board referred this issue pursuant to 38 C.F.R. § 4.18(b) to the Director, Compensation Service for initial consideration of whether a TDIU prior to April 8, 2014 was warranted on an extraschedular basis.

In September 2020, the Director provided the initial determination regarding extraschedular entitlement.  Later that month, a VA RO issued a rating decision granting entitlement to a TDIU on an extraschedular basis, effective October 13, 2007.   But, as this increase did not represent a total grant of the benefits sought on appeal as the underlying disability upon which TDIU was claimed—a back disability—was assigned an effective date of August 16, 2005, the Veteran’s claim for entitlement to a TDIU remained in appellate status.  See Harper v. Wilkie, 30 Vet. App. 356, 362 (2018).

Withdrawal

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.  Id.  In the present case, the Veteran submitted a statement in November 2020 indicating that (1) he was completely satisfied regarding the grant of a TDIU effective October 13, 2007, and (2) he wished to withdraw this issue from further appellate consideration.  The November 2020 statement contained his name, his claims file number, and a specific indication that he wished to withdraw his appealed issue of entitlement to a TDIU prior to October 13, 2007.  See 38 C.F.R. § 19.55(b)(1); Hembree v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 1677, at *12-13 (Aug. 31, 2020).  Thus, the Board concludes that the Veteran has withdrawn this issue and, hence, 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.

 

 

S.C. KREMBS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	N.S. Pettine, 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.