Citation Nr: 21029037
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 19-26 182A
DATE: May 12, 2021

ORDER

Entitlement to an extraschedular total disability rating due to individual unemployability (TDIU) from June 20, 2016 to April 23, 2019 is dismissed.

FINDING OF FACT

In March 2021, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal.

CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal have been met with respect to the claim of entitlement to an extraschedular TDIU from June 20, 2016 to April 23, 2019 have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the U.S. Air Force from November 1958 to November 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO).

This claim was previously remanded by the Board in June 2020 and February 2021 for further development. The case has now been returned to the Board for appellate 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. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 February 2021, the claim was remanded to refer the matter of entitlement to an extraschedular TDIU to the Director of Compensation Service. An advisory opinion concerning extraschedular consideration under 38 C.F.R. § 4.16(b) was issued in February 2021. In pertinent part, the Executive Director of Compensation Service advised that the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions. She therefore determined that entitlement to extraschedular TDIU benefits had not been established.

Following the advisory opinion, in February 2021, the RO issued a Supplemental Statement of the Case (SSOC), denying entitlement to individual unemployability on an extraschedular basis from June 20, 2016 to April 23, 2019.

On March 3, 2021, the Veteran submitted a signed "Appeals Satisfaction Notice" form indicating that based on the decision rendered, he was satisfied and wished to withdraw all remaining issues associated with his appeal, including all issues contained in the recent SSOC.

Under these circumstances, the Board finds the Veteran has unambiguously indicated his desire to withdraw his appeal with respect to the issue of entitlement to an extraschedular TDIU from June 20, 2016 to April 23, 2019. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, there remains no allegations of errors of fact or law for appellate consideration. As such, the Board does not have jurisdiction to review the appeal, and the appeal is dismissed. 

 

ANTHONY C. SCIRÉ, JR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Fairlie, 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.