Citation Nr: 21031548 Decision Date: 05/21/21 Archive Date: 05/24/21 DOCKET NO. 16-23 356 DATE: May 21, 2021 ORDER Entitlement to a noninitial disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) with major depressive disorder prior to January 23, 2018 is dismissed. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to June 13, 2017 is dismissed. FINDINGS OF FACT 1. In a written statement received by the United States Department of Veterans Affairs (VA) via facsimile on March 8, 2019, the Veteran's attorney clearly and unambiguously indicated that the Veteran wished to withdraw the pending claim seeking a higher noninitial disability rating for his service-connected PTSD with major depressive disorder. Unfortunately, due to administrative delay, this statement was not associated with the Veteran's electronic claims file until April 29, 2019, after promulgation of the Board of Veterans' Appeals' (Board) April 8, 2019 remand decision. The Veteran's withdrawal legally took effect on the date it was received by VA. 2. By virtue of the March 8, 2019 withdrawal, the Board was without jurisdiction to consider the noninitial increased rating claim for service-connected PTSD with major depressive disorder in the April 8, 2019 remand decision, and the Board remains without jurisdiction over the issue to this day. 3. In the April 8, 2019 remand decision, the Board raised the issue of entitlement to a TDIU prior to June 13, 2017 as part and parcel with the Veteran's noninitial increased rating claim for service-connected PTSD with major depressive disorder pursuant to Harper v. Wilkie, 30 Vet. App. 356 (2018). Because the Board lacked jurisdiction over the noninitial increased rating claim for service-connected PTSD with major depressive disorder at the time of the remand decision, it also lacked the jurisdiction to raise issues ancillary to the noninitial increased rating claim, to include the issue of entitlement to a TDIU prior to June 13, 2017. CONCLUSIONS OF LAW 1. The Board is without jurisdiction to consider the claim seeking entitlement to a noninitial disability rating in excess of 50 percent for service-connected PTSD with major depressive disorder prior to January 23, 2018. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (formerly 38 C.F.R. § 20.204). 2. The Board is without jurisdiction to consider the claim seeking entitlement to a TDIU prior to June 13, 2017. 38 U.S.C. § 7105 (2018); 38 C.F.R. § 19.55 (formerly 38 C.F.R. § 20.204). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1971 and January1974 to November 1985. On September 2, 2015, the Veteran filed a formal claim seeking entitlement to a noninitial disability rating in excess of 30 percent for his service-connected PTSD with major depressive disorder. In a December 2015 rating decision, a VA Regional Office (RO) increased the Veteran's service-connected PTSD with major depressive disorder to a 50 percent rating, effective September 2, 2015. The Veteran filed a timely Notice of Disagreement and Substantive Appeal challenging the rating assigned and giving rise to the current appeal. In the May 2016 Substantive Appeal, the Veteran, through his attorney, requested a Board videoconference hearing. A hearing was scheduled for March 11, 2019; however, in a written statement received by VA via facsimile on March 8, 2019, the Veteran's attorney withdrew the Veteran's hearing request. See 38 C.F.R. § 20.603 (formerly 38 C.F.R. § 20.704). The undersigned Veterans Law Judge has been assigned to consider this matter pursuant to 38 C.F.R. § 20.106(a) (formerly 38 C.F.R. § 19.3(a)). 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(d)(5) (2018). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision on the merits. 38 C.F.R. § 19.55 (formerly 38 C.F.R. § 20.204). Withdrawal may be made by the appellant or by his authorized representative, and becomes effective once it is received by the Board. Id. On March 8, 2019, VA received a facsimile from the Veteran's attorney clearly and unambiguously indicating that the Veteran wished to withdraw his claim seeking a noninitial increased rating for his service-connected PTSD with major depressive disorder. This document included the Veteran's name, case number, and an explicit statement identifying the withdrawn issue; thus it satisfied the regulatory criteria for a valid withdrawal. Id.; see Hembree v. Wilkie, 33 Vet. App. 1, 7 (2020) (Unlike an oral withdrawal at a hearing, a written withdrawal request does not require full understanding of the consequences of such action on the part of the claimant and is valid so long as it complies with the requirements set forth in the regulation). Although this written statement was within VA's actual possession, and the Board's constructive possession, as of March 8, 2019, a review of the Veterans Benefits Management System (VBMS), VA's internal record keeping system, shows that the statement was not associated with the Veteran's electronic claims file until April 29, 2019. Thus, it was not available for review by the Board at the time that the Board issued its April 8, 2019 remand decision. Nonetheless, the Veteran's withdrawal of the noninitial increased rating claim for his service-connected PTSD with major depressive disorder became effective on March 8, 2019, the date it was actually received by VA and constructively received by the Board. See 38 C.F.R. § 19.55(b)(3) (formerly 20.204(b)(3)) (stating a withdrawal is not effective until received by the Board). By virtue of the March 8, 2019 withdrawal, the Board was without jurisdiction to render the April 8, 2019 decision remanding the claim seeking a noninitial increased rating for his service-connected PTSD with major depressive disorder, as no allegations of specific error of fact or law remained in contention. The Board notes that the April 2019 Board decision was interlocutory in nature and was not a final decision. See 38 C.F.R. § 20.1100(b); see also 38 C.F.R. § 19.55(b)(3) (formerly 20.204(b)(3)). Likewise, the Board remains without jurisdiction over the issue to this day, as the Veteran's valid March 8, 2019 withdrawal terminated the appeal. In light of the above analysis, the Veteran's appeal seeking a noninitial disability rating in excess of 50 percent prior to January 23, 2018 for his service-connected PTSD with major depressive disorder must be dismissed due to the Board's lack of appellate jurisdiction. The Board recognizes that as a result of evidence developed in accordance with its April 8, 2019 remand directives, the RO issued a June 2020 rating decision granting a 100 percent disability rating for the Veteran's service-connected PTSD with major depressive disorder, effective January 23, 2018, along with special monthly compensation based upon the statutory housebound criteria. The Board's current dismissal does not impact or effect the favorable determinations rendered in the June 2020 rating decision. In a March 4, 2019 rating decision, the Veteran was awarded entitlement to a TDIU, effective June 13, 2017. In the April 8, 2019 remand decision, the Board raised a claim of entitlement to a TDIU prior to June 13, 2017, stating in pertinent part, "TDIU is considered part and parcel of the increased rating[] on appeal and, pursuant to Harper v. Wilkie, the Board has considered whether TDIU is warranted prior to June 13, 2017." Thus, it is clear that the Board only raised the issue of entitlement to a TDIU prior to June 13, 2017 in conjunction with the noninitial increased rating claim for his service-connected PTSD with major depressive disordera claim over which it did not have appellate jurisdiction. In Harper, the United States Court of Appeals for Veterans Claims held that when a veteran files a Notice of Disagreement for an increased rating claim, the veteran is assumed to be seeking the highest rating possible, which may include entitlement to a TDIU, for the entire appeal period, and when TDIU is granted during the pendency of the increased rating claim, but is not assigned for the entire appeal period, the issue of an earlier effective date for entitlement to a TDIU remains on appeal. Harper, 30 Vet. App. at 362. Thus, applying the logic of Harper to the present matter, if the Board lacked jurisdiction over the noninitial increased rating claim for the Veteran's service-connected PTSD with major depressive disorder at the time of the April 8, 2019 remand decision, it also necessarily lacked jurisdiction over any ancillary claims raised in conjunction with or part and parcel with the underlying noninitial increased rating claim for the Veteran's service-connected PTSD with major depressive disorder. The Veteran's March 8, 2019 withdrawal of the noninitial increased rating claim for his service-connected PTSD with major depressive disorder had the practical effect of also withdrawing any other claims that were part and parcel with that underlying noninitial increased rating claim. By virtue of the Veteran's March 8, 2019 withdrawal, the Board is without appellate jurisdiction to consider a claim seeking entitlement to a TDIU prior to June 13, 2017, and the appeal must be dismissed. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Galante, 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.