Citation Nr: 21010069
Decision Date: 02/24/21	Archive Date: 02/24/21

DOCKET NO. 20-15 350
DATE: February 24, 2021

ORDER

The issue as to the calculation of past-due benefits owed to the Veteran from a September 2017 Board decision, effectuated by a June 2018 rating decision, granting service connection for major depressive disorder with PTSD at a 70 percent rating effective May 15, 2009, is dismissed.

FINDING OF FACT

On December 22, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his attorney, that a withdrawal of this appeal is requested.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served active duty from February 1983 to January 1989. 

This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 Summary of the Case (administrative decision) of a Department of Veterans Affairs (VA) Regional Office (RO).

The issue of entitlement to attorney’s fees for past due benefits was previously remanded in January 2021 in a separate decision. As such, this decision solely concerns the question of the calculation of past due benefits.  

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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. 38 C.F.R. § 19.55.  

Here, a September 2017 Board decision granted service connection for depressive disorder. A June 2018 rating decision implemented the award, granting service connection for major depressive disorder with PTSD with an evaluation of 70 percent rating effective May 15, 2009. A January 2019 administrative decision notified the Veteran of the total amount of past-due benefits owed to him. 

Shortly thereafter, the Veteran’s attorney filed a Notice of Disagreement (NOD), asserting the amount of past due benefits owed to the Veteran was improperly calculated. Subsequently, additional claims, unrelated to the appeal at issue, were granted in the Veteran’s favor, to include a TDIU with an effective date of July 22, 2008. See Rating Decision (July 2020).The appellant, through his attorney, withdrew this appeal in December 2020 correspondence. 

It is noted that the withdrawal of the appeal was completed by written and signed correspondence from the attorney, dated in December 2020, which included the Veteran’s name and the claim number. The attorney stated that he, and the Veteran, wished to withdraw the appeal of the January 2019 administrative decision as to whether the Veteran was correctly paid based on the June 2018 rating decision. The communication was clear and unambiguous as to the withdrawal of the appeal.

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.

 

 

CHRISTOPHER A. WENDELL

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Pendleton, 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.