Citation Nr: 21030364
Decision Date: 05/18/21	Archive Date: 05/18/21

DOCKET NO. 16-41 136
DATE: May 18, 2021

ORDER

Entitlement to a total disability rating due to individual unemployability (TDIU) on an extra-schedular basis prior to January 27, 2011 is dismissed.

FINDING OF FACT

In March 2021, prior to the promulgation of a decision in the appeal, the Board received an Appeal Satisfaction Notice from the Veteran indicating that based on the decision rendered he was satisfied and wished to withdraw the remaining issue contained in the recent Statement of the Case/Supplemental Statement of the Case.

CONCLUSION OF LAW

The criteria for withdrawal of entitlement to a TDIU on an extra-schedular basis prior to January 27, 2011 are met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from October 1971 to April 1974

This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2010 Regional Office (RO) rating decision.  In that rating decision, the RO granted an increased disability rating for the Veteran's service-connected right ankle disability to 10 percent, effective March 15, 2010.  The Veteran timely appealed for a higher rating.

In September 2019, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge.  A transcript of the testimony is associated with the claims file.  

In October 2019, the Board granted a 20 percent disability rating from March 15, 2010 to August 10, 2011, a 30 percent disability rating from November 1, 2011 to August 22, 2012, and 40 percent disability rating from October 1, 2013 for service-connected right ankle disability.  The Board determined that the issue of entitlement to a TDIU on an extra-schedular basis was raised as part and parcel of the Veteran's increased rating claim for service-connected right ankle disability and remanded the issue to the RO for further development and adjudicative action.

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  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 19.55(b)(3).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 19.55(a).

In a December 2020 rating decision, the RO granted entitlement to a TDIU, effective January 27, 2011.  The RO issued a supplemental statement of the case in January 2021 that denied entitlement to a TDIU on an extra-schedular basis prior to January 27, 2011.  In March 2021, the Board received an Appeals Satisfaction Notice from the Veteran that stated following the recent correspondence regarding the decision to grant one or more of his issues on appeal he was satisfied and he wished to with all remaining issue(s) contained in the recent supplemental statement of the case.  The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.  DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).  Therefore, the Veteran has withdrawn this appeal 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. 

 

L. B. CRYAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. Berry, 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.