Citation Nr: 22008053 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 09-42 319A DATE: February 11, 2022 ORDER The appeal with respect to the Veteran's entitlement to veteran readiness and employment (VR&E) benefits, pursuant to 38 U.S.C. Chapter 31, is dismissed. FINDING OF FACT In October 2021, prior to the promulgation of an appellate decision, the Board received notification from the Veteran that a withdrawal of this appeal was requested. CONCLUSION OF LAW The criteria for withdrawal of an appeal by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Air Force from October 1976 to February 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from a letter of determination issued by the Department of Veterans Affairs (VA). Specifically, VA denied vocational rehabilitation benefits on the basis that he does not have an employment handicap for VA vocational rehabilitation purposes. This case was previously before the Board in November 2018, December 2020, and August 2021 and Remanded for additional development. Withdrawal of 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. Id. In the present case, the appellant in October 2021 emailed his assigned Vocational Rehabilitation Counselor (VRC) and stated the following: Please allow me to be perfectly frank: today I am 65 years of age, I am now and have been for years rated 100% TDIU Permanent and Total. I have not sought Voc Rehab (these days it is called Chapter 31), I emailed you the VA web page, I am not interested in Chapter 31 (when I needed and sought these services I was denied). I have no interest or need for Chapter 31 [benefits] at this juncture. On the other hand, in a February 2022 post-remand brief the Veteran's representative asserted that the Veteran's statement about not needing VR&E benefits was made "out of frustration" because of past miscommunications and aggravating phone calls with VA and that he was still entitled to Chapter 31 benefits. The Board has afforded the Veteran's representative's assertions due consideration. However, the fact remains that, while the Veteran's appeal was in remand status awaiting additional evidentiary development, in October 2021 he emailed his assigned VRC a statement in which he stated that he did not wish to pursue his claim for Chapter 31 benefits at this time. Tellingly, the Board finds that the withdrawal is (1) explicit; (2) unambiguous; and (3) done with a full understanding of the consequences of such action on the part of the Veteran. See Acree v. O'Rourke, 17-1749; DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In reaching the above conclusion, the Board finds it significant that the Veteran has a total disability rating based in individual unemployability (TDIU) since November 23, 2009, which demonstrates acceptance by VA that he cannot work and further supports the Veteran's contention that he is unable to work and does not wish to pursue Chapter 31 benefits. The Board also finds that the Veteran's representative's subsequent February 2022 post-remand brief cannot act to reinstate or continue an appeal, which the appellant withdrew in October 2021. The Board has reached this conclusion because the brief was not received within the time the appellant had to appeal the letter of determination issued by VA. See, e.g., 38 C.F.R. § 20.302(b); 38 C.F.R. §§ 19.129, 19.192 (To be considered timely, the Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed); Roy v. Brown, 5 Vet. App. 554, 556 (1993) (if the claimant fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, "he is statutorily barred from appealing the RO decision"); Cf. Rowell v. Principi, 4 Vet. App. 9 (1993). Accordingly, the Board finds that the preponderance of the evidence shows that Veteran has withdrawn this appeal. See Hamilton v. Brown, 4 Vet. App. 528 (1993) ("where ... the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, neither the RO nor BVA has authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative"). Therefore, the Board finds that there remain no allegations of errors of fact or law for appellate consideration, it does not have jurisdiction to review the appeal, and it is dismissed. See 38 U.S.C. § 7105; 38 C.F.R. § 19.55. Of course, if the Veteran's circumstances change or he decides to pursue VR&E benefits in the future, he is encouraged to file a Supplemental Claim for VR&E benefits. NEIL T. WERNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.