Citation Nr: 21014377 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 20-02 433 DATE: March 12, 2021 ORDER The appeal of the issue of entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea is dismissed. The appeal of the issue of entitlement to an effective date earlier than September 15, 2017, for the award of entitlement to service connection for obstructive sleep apnea is dismissed. The appeal of the issue of entitlement to a rating in excess of 20 percent for lumbosacral strain prior to June 5, 2019, and a rating in excess of 40 percent thereafter, is dismissed. The appeal of the issue of entitlement to a rating in excess of 50 percent for unspecified depressive disorder with unspecified anxiety disorder and alcohol use disorder prior to June 6, 2019, is dismissed. The appeal of the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 6, 2019, is dismissed. FINDINGS OF FACT 1. In December 2020 written correspondence, the appellant withdrew the pending appeal of the claim of entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea. 2. In December 2020 written correspondence, the appellant withdrew the pending appeal of the claim of entitlement to an effective date earlier than September 15, 2017, for the award of entitlement to service connection for obstructive sleep apnea. 3. In December 2020 written correspondence, the appellant withdrew the pending appeal of the claim of entitlement to a rating in excess of 20 percent for lumbosacral strain prior to June 5, 2019, and a rating in excess of 40 percent thereafter. 4. In December 2020 written correspondence, the appellant withdrew the pending appeal of the claim of entitlement to a rating in excess of 50 percent for unspecified depressive disorder with unspecified anxiety disorder and alcohol use disorder prior to June 6, 2019. 5. In December 2020 written correspondence, the appellant withdrew the pending appeal of the claim of entitlement to a TDIU prior to June 6, 2019. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the pending appeal of the claim of entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the pending appeal of the claim of entitlement to an effective date earlier than September 15, 2017, for the award of entitlement to service connection for obstructive sleep apnea have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the pending appeal of the claim of entitlement to a rating in excess of 20 percent for lumbosacral strain prior to June 5, 2019, and a rating in excess of 40 percent thereafter, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the pending appeal of the claim of entitlement to a rating in excess of 50 percent for unspecified depressive disorder with unspecified anxiety disorder and alcohol use disorder prior to June 6, 2019, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for withdrawal of the pending appeal of the claim of entitlement to a TDIU prior to June 6, 2019, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Army from February 2013 to July 7, 2016. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A June 2018 rating decision, in pertinent part, awarded entitlement to service connection for obstructive sleep apnea and assigned an initial 50 percent rating, effective September 15, 2017. The appellant filed a timely Notice of Disagreement (NOD) with respect to the initial rating and effective date assigned, received in November 2018. A Statement of the Case (SOC) was issued in November 2019. A timely substantive appeal was received in January 2020. A September 2018 rating decision, in pertinent part, denied entitlement to a rating in excess of 50 percent for unspecified depressive disorder with unspecified anxiety disorder and alcohol use disorder, a rating in excess of 20 percent for lumbosacral strain, and a TDIU. The appellant filed a timely Notice of Disagreement (NOD), received in October 2018. A February 2020 rating decision, in pertinent part, awarded entitlement to a TDIU effective September 15, 2017, awarded a 100 percent rating for unspecified depressive disorder with unspecified anxiety disorder and alcohol use disorder effective June 6, 2019, and awarded a 40 percent rating for lumbosacral strain effective June 5, 2019. Although higher ratings were granted, the issues remain in appellate status, as the maximum schedular ratings were not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); Hembree v. Wilkie, 33 Vet. App. 1 (2020). A Statement of the Case (SOC) was thus issued in February 2020. A timely substantive appeal was received in March 2020. The Board observes that the appellant is in receipt of special monthly compensation at the housebound rate based on meeting the statutory criteria of having a disability rated as 100 percent and additional disabilities independently ratable at 60 percent or more, effective June 6, 2019. Although the appellant is in receipt of a TDIU, effective September 15, 2017, based on the statements in the record by the appellant’s attorney regarding the scope of a TDIU, the Board has characterized the issue on appeal as entitlement to a TDIU prior to June 6, 2019. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009); Given the appellant’s assertions, the evidence of record, and the outcome below, no prejudice to the appellant has resulted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 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(a). Received on December 22, 2020, were statements from the appellant and his attorney in which it was requested that all his current appeals be withdrawn. Indeed, the appellant stated that he wished to withdraw the issues of “entitlement to an earlier effective date and increased rating for obstructive sleep apnea, to include entitlement to a [TDIU],” and the issues of “entitlement to increased ratings for increased ratings for depressive disorder and lumbosacral strain, to include entitlement to a [TDIU].” The appellant’s attorney stated that the appellant wished to withdraw “all issues pending in the February 5, 2020[,] Statement of the Case and the November 20, 2019[,] Statement of the Case.” The withdrawal was in writing, included the name of the appellant, the file number, and a clear statement that the appeals were withdrawn. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). Thus, the criteria for a withdrawal have been met and 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. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Behlen, 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.