Citation Nr: 21027474 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-15 393 DATE: May 5, 2021 ORDER Entitlement to an increased disability rating for posttraumatic stress disorder (PTSD) with substance abuse in remission in excess of 30 percent prior to January 12, 2021, and in excess of 50 percent on and after January 12, 2021 is dismissed. FINDING OF FACT On March 31, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal is requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met with respect to the issue of entitlement to an increased disability rating for PTSD with substance abuse in remission in excess of 30 percent prior to January 12, 2021, and in excess of 50 percent on and after January 12, 2021. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from January 1968 to December 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision. The Board notes that the October 2017 rating decision denied the Veteran's increased rating claim for his psychiatric disability. In the November 2017 notice of disagreement, the Veteran indicated that he wanted to appeal the evaluation of the psychiatric disability as well as the effective date of the award. In this regard, the Board notes that entitlement to service connection for the psychiatric disability was initially granted by a January 2012 rating decision, and the Veteran did not appeal the initially assigned effective date. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (holding that once a decision assigning an effective date has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed decision). As such, the Veteran was only able to appeal the evaluation of his psychiatric disability with the November 2017 notice of disagreement. In an April 2020 decision, the Board remanded the Veteran's increased rating claim for his psychiatric disability to the agency of original jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. In addition to the Veteran's increased rating claim for his psychiatric disability, the Board remanded his claim for a total disability rating based on individual unemployability (TDIU). The Board notes that during the pendency of the remand, the AOJ issued a January 2021 rating decision that awarded an increased rating of 50 percent for the Veteran's service-connected PTSD with substance abuse in remission effective from January 12, 2021. The decision also granted entitlement to a TDIU effective from August 1, 2016. The Board acknowledges that if a grant of TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period remains in appellate status. Harper v. Wilkie, 30 Vet. App. 356 (2018); see also Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Board notes that the Veteran filed the increased rating claim for his psychiatric disability on August 22, 2017, and the appeal period began on August 22, 2016. 38 C.F.R. § 3.400(o)(2). As such, the RO's award of TDIU, effective August 1, 2016, was made effective for the entirety of the period of the increased rating claim currently before the Board. Under these circumstances, the Board does not find that the issue of entitlement to a TDIU prior to August 1, 2016 is currently on appeal before the Board. The Board notes that the April 2020 decision also remanded the issues of entitlement to an increased rating for residuals of prostate cancer status post radicular prostatectomy; entitlement to an earlier effective date for an increased rating for residuals of prostate cancer; entitlement to service connection for hypertension; entitlement to service connection for glaucoma of the right eye, including as secondary to service-connected disability; and entitlement to service connection for sleep apnea. While the issues were in remand status and before the development requested in the Board's April 2020 remand could be completed, the Veteran submitted a statement on June 8, 2020 noting that he wanted to withdraw each issue. In a July 6, 2020 letter to the Veteran, the AOJ notified him that it had withdrawn the Veteran's appeal with respect to these issues based on his June 8, 2020 written request. Information obtained from VA's Veterans Appeals and Control Locator System (VACOLS) also reflects that the appeals as to these issues listed in the April 2020 Board remand were closed on June 8, 2020 following the Veteran's statement, and that the issues were "withdrawn from remand." Hence, these issues have not been returned to the Board for adjudication. The record additionally shows that the Veteran was previously represented by attorney Joseph Michael Woods. Before the appeal was returned to the Board from remand, attorney Joseph Michael Woods withdrew as the Veteran's representative in a March 2021 statement. See 38 C.F.R. §§ 14.631(c), 20.608(b). The March 2021 statement from the representative further reflects that the Veteran was made aware of the withdrawal and has not appointed another representative; the Board does not recognize any representation at this time. 1. Entitlement to an increased disability rating for PTSD with substance abuse in remission in excess of 30 percent prior to January 12, 2021, and in excess of 50 percent on and after January 12, 2021. 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. In the present case, the Veteran's representative submitted a March 2021 statement from the Veteran in which the Veteran stated that he wanted to withdraw "all the issues" that were listed in the January 22, 2021 supplemental statement of the case (SSOC) for an increased rating in excess of 30 percent for his psychiatric disability prior to January 12, 2021, and more than 50 percent for his psychiatric disability "prior to 01/12/21." In this regard, the Board noes that the January 22, 2021 SSOC addressed whether an increased rating in excess of 30 percent was warranted for the Veteran's psychiatric disability prior to January 12, 2021; and whether a rating in excess of 50 percent was warranted from January 12, 2021. Although the Veteran phrased his withdrawal of the increased rating claim regarding the 50 percent rating as relating to the period "prior to" January 12, 2021, it is clear from his statement expressing his desire to withdraw all the issues that were addressed in the January 22, 2021 SSOC that this was merely a clerical error. The Veteran has withdrawn this appeal 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. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.