Citation Nr: 22013809 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-13 052 DATE: March 10, 2022 ORDER The appeal is dismissed. FINDING OF FACT On February 22, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran in the form of a completed VA Appeals Satisfaction Notice informing the Board that he wished to withdraw his appeal. 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. INTRODUCTION The Veteran served honorably on active duty in the United States Air Force during the Vietnam Era, from September 1964 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. When the Veteran's claim for a disability rating in excess of 10 percent for service-connected migraine headaches with visual aura came before the Board most recently in October 2020, it was remanded for additional development, specifically, to afford the Veteran a more contemporaneous VA examination. Thereafter, the RO issued a January 2021 Rating Decision granting the Veteran a 50 percent rating (the maximum schedular evaluation available under Diagnostic Code (DC) 8100) effective January 7, 2021, the date of the VA examination. 38 C.F.R. § 4.124A. Finally, please note this appeal has been advanced on the Board's docket. See 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.900(c). REFERRED The Board's June 2019 decision granted the Veteran's claim for an increased rating for service-connected migraine headaches with visual aura by assigning a 10 percent evaluation. However, a Rating Decision implementing the Board's grant of a 10 percent rating has never been promulgated by the RO. The Board observes the most recent Rating Decision Code Sheet indicates that, "[p]er p5 ... of the 10/2020 BVA remand/decision, the 06/2019 BVA decision granting 10% for migraines has been dismissed." According to the Code Sheet, "[t]he 10% grant was never implemented by rating; however, per the language of the remand, this grant is no longer valid." Unfortunately, the RO's interpretation of the language employed in the Board's October 2020 decision regarding the prior 10 percent grant is in error. Specifically, pursuant to a Joint Motion for Partial Remand (JMPR) granted by the United States Court of Appeals for Veterans Claims (Court) by Order dated April 2020, the Board's June 2019 decision granting entitlement to an increased rating of 10 percent for migraine headaches with visual aura was not to be disturbed. See Medrano v. Nicholson, 21 Vet. App. 165, 170 (2007). As such, the matter is referred to the RO to take appropriate action to promulgate a Rating Decision implementing the Board's grant of a 10 percent rating for service-connected migraine headaches with visual aura for the period on appeal prior to January 7, 2021, at which time the Veteran's rating was increased to 50 percent. REASONS AND BASES FOR FINDING AND CONCLUSION 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 Veteran or by his authorized representative. Id. As noted above, following the Board's prior remand, the RO issued a January 2021 Rating Decision granting the Veteran a 50 percent rating (the maximum schedular evaluation available under DC 8100) effective January 7, 2021. 38 C.F.R. § 4.124A. The issue of entitlement to a total disability based upon individual unemployability (TDIU) was deferred pending additional development. At the same time, the RO issued a Supplemental Statement of the Case (SSOC) denying entitlement to an increased rating prior to January 7, 2021. On February 22, 2021, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran in the form of a completed VA Appeals Satisfaction Notice stating he no longer wanted to pursue the appeal and requesting withdrawal of the issue contained in the January 2021 SSOC. Thus, 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. (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.