Citation Nr: 21024331
Decision Date: 04/22/21	Archive Date: 04/22/21

DOCKET NO. 13-01 572
DATE: April 22, 2021

ORDER

The appeal regarding the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 3, 2019 is dismissed. 

FINDING OF FACT

In a February 2021 Appeals Satisfaction Notice, the Veteran expressed satisfaction with February 2021 rating decision which implemented the January 2021 Board decision and, in so doing, requested to withdraw the remaining issue of entitlement to a TDIU rating prior to May 3, 2019.

CONCLUSION OF LAW

The criteria for withdrawal of the appeal regarding the issue of entitlement to a (TDIU) prior to May 3, 2019 have been met.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.205.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from May 1978 to March 2000. This current appeal arose from November 2008 and June 2020 rating decisions. Although the Veteran filed a formal application for TDIU in June 2020, the Board assumed jurisdiction of the claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  

In January 2016, the Veteran was afforded a hearing before a Veterans Law Judge (VLJ). A transcript of the hearing is associated with the file. In the January 2021 decision, the Board granted entitlement to a TDIU rating from May 3, 2019 and remanded the issue of entitlement to a TDIU rating prior to May 3, 2019 in order for the AOJ to refer the case to the Director of Compensation Service for extraschedular consideration.

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. Except for appeals withdrawn on the record at the time of a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.205. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. Id. Withdrawal may be made by the appellant or by his or her authorized representative. Id.

In a February 2021 Appeals Satisfaction Notice, the Veteran stated that he had received the recent decision granting most of the issues on appeal and that he is satisfied with that determination. Significantly, he specifically expressed his desire to withdraw all the remaining issues contained in the recently received Supplemental Statement of the Case (SSOC). See February 2021 Correspondence (Appeals Satisfaction Notice). The only issue remaining on appeal was that of entitlement to a TDIU rating prior to May 3, 2019. See February 2021 SSOC.

The Board acknowledges that the VLJ who conducted the January 2016 Board hearing has since retired. Normally, a notification letter would be sent informing the Veteran of the unavailability of the VLJ and of an opportunity to request another hearing before another VLJ. In this matter, the Veteran has requested withdrawal of the issue remaining on appeal. Therefore, such a notice (regarding the opportunity for an additional hearing before a current VLJ) is not required.

Accordingly, the Board finds that the Veteran has knowingly withdrew the issue remaining on appeal and that, therefore, the Board no longer has jurisdiction to review this issue. There remains no allegation of errors of fact or law for appellate consideration. The issue remaining on appeal is dismissed. 

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Middleton, Associate 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.