Citation Nr: 22013492 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 20-09 725 DATE: March 9, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b), prior to March 9, 2017, is dismissed. FINDING OF FACT In February 2022, prior to the promulgation of a decision in the appeal, the Veteran withdrew from appeal entitlement to a TDIU on an extraschedular pursuant to 38 C.F.R. § 4.16(b), prior to March 9, 2017. CONCLUSION OF LAW The criteria for withdrawal of an appeal of entitlement to a TDIU on an extraschedular pursuant to 38 C.F.R. § 4.16(b), prior to March 9, 2017, 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 from May 1955 to February 1959 and October 1961 to August 1962. In November 2020, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In an August 2021 rating decision, the Agency of Original Jurisdiction (AOJ) granted entitlement to a TDIU, effective December 9, 2020, the date the Veteran submitted an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). However, the Veteran's claim of service connection for his service-connected back disability was received by the VA on March 19, 2015, and that is the date of claim for purposes of the issue of entitlement to a TDIU. As the evidence reflected that the Veteran was unemployed during the claim period prior to December 9, 2020, and the TDIU issue on appeal was raised as part and parcel of the claim for a higher initial disability rating for back disability, the issue of entitlement to a TDIU, prior to December 9, 2020, remained on appeal before the Board in an October 2021 decision. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). In October 2021, the Board granted entitlement to a TDIU from March 9, 2017 to December 9, 2020, the period when the Veteran met the schedular rating criteria under 38 C.F.R. § 4.16(a), and remanded the issue of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for referral to the Director of Compensation Service for the period prior to March 9, 2017, when the Veteran did not meet the schedular rating criteria. As a final preliminary matter, as discussed further below, as the Veteran has validly withdrawn the appeal as to the claim, discussion of remand compliance is unnecessary. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDIU on an extraschedular pursuant to 38 C.F.R. § 4.16(b), prior to March 9, 2017 The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55(a). Withdrawal may be made by the Veteran or by his or her authorized representative in writing. 38 C.F.R. § 19.55(b). In the present case, the Veteran's attorney submitted a signed statement from the Veteran, dated February 2, 2022 and received by VA on February 15, 2022, indicating that the Veteran authorized his attorney to withdraw all pending claims with the VA. In the February 15, 2022 letter accompanying the Veteran's signed February 2022 statement, the Veteran's attorney requested to withdraw the appeal for an earlier effective date for TDIU. The Veteran's attorney also requested to withdraw the appeal for a higher disability rating for psychiatric disorder. That claim will be addressed in a separate Board decision consistent with the Appeals Modernization Act (AMA) framework. The Veteran's attorney's February 15, 2022 letter constitutes a valid withdrawal of the Veteran's appeal as it complied with the requirement of the applicable regulation by including the name of the Veteran, the applicable VA file number, and a statement that the appeal was withdrawn. Hembree v. Wilkie, 33 Vet. App. 1, 8 (2020) (written withdrawals need only comply with 38 C.F.R. § 20.204(b), renumbered as 38 C.F.R. § 19.55(b)). (Continued on the next page) As the Veteran has withdrawn the appeal as to the claim, there remains no specific determination with which the claimant disagrees. Accordingly, the Board does not have jurisdiction to review the claim on appeal, and the appeal is dismissed. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.