Citation Nr: 21030891
Decision Date: 05/19/21	Archive Date: 05/19/21

DOCKET NO. 17-07 821
DATE: May 19, 2021

ORDER

The appeal seeking entitlement to service connection for right ear hearing loss is dismissed.

FINDING OF FACT

On April 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his attorney, that a withdrawal of this appeal is requested.

CONCLUSION OF LAW

The criteria for withdrawal of the appeal seeking entitlement to service connection for right ear hearing loss have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1987 to August 1990.  This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In February 2020, a hearing was held before the Board.  

The case was previously before the Board in June 2020 when it was remanded for further development.  At that time, a claim for entitlement to service connection for a bilateral foot disorder and a claim for entitlement to a total disability evaluation based on individual unemployability (TDIU) was remanded.  

Subsequently, in a March 2021 rating decision, service connection for bilateral metatarsalgia and degenerative joint disease was granted and is therefore not before the Board.  The Board also notes that in a July 2020 rating decision, a claim for TDIU was determined to be moot.  The Veteran was provided with a copy of this decision and notified of his appeal rights in an August 2020 letter.  The Veteran has not appealed this decision at this time.  Also, the Board finds that it would not be appropriate to take jurisdiction over a claim for a TDIU under Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), as a claim for an increased rating is not currently before the Board.  The Court in Rice noted that a request for TDIU "is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities" as part of a claim for increased compensation.  It's unclear on what basis the previous Board remand indicated that entitlement to TDIU was under the Board's jurisdiction but it was not and is not.  

Withdrawal of appeal

Regarding the claim on appeal, 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.  

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In the present case, the Veteran, through his attorney, has withdrawn the appeal seeking entitlement to service connection for right ear hearing loss 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.

 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Bonnie Yoon, 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.