Citation Nr: 23016901
Decision Date: 03/19/23	Archive Date: 03/19/23

DOCKET NO. 18-51 263
DATE: March 19, 2023

ISSUE

Entitlement to a total disability rating based on unemployability (TDIU) prior to July 22, 2011.

ORDER

Entitlement to a TDIU prior to July 22, 2011, is dismissed.

FINDING OF FACT

In January 2022 correspondence, prior to the promulgation of a decision in the appeal, the Veteran withdrew her Substantive Appeal with respect to the issue listed on appeal.

CONCLUSION OF LAW

The criteria for withdrawal of TDIU has been met. 38 U.S.C. § 7105 (b)(2), (d)(5); 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from March 1989 to September 1992.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2022 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

By way of background, on March 11, 2011, the RO received a statement from the Veteran that her service-connected conditions interfered with her ability to work.   In February 2018, the Veteran submitted a claim for TDIU.  The RO denied the claim in March 2018.  The Veteran filed a notice of disagreement in May 2018, and the RO issued a Statement of the Case (SOC) in October 2018.  Later that same month the Veteran submitted a Form 21-8940.  She perfected her appeal in November 2018 requesting a Board hearing on her Form 9.  The Veteran's attorney submitted written and signed correspondence in January 2022 that the Veteran wished to withdraw the issue of TDIU and that the Veteran wished to cancel her Board hearing.  The RO, in March 2022 issued a decision granting the Veteran's claim for TDIU effective July 22, 2011.

TDIU

The Board may dismiss any appeal that 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 19.55.  Further, the withdrawal is effective when received by the agency of original jurisdiction. 38 C.F.R. § 19.55(b)(3).  In the January 2022 correspondence, prior to the promulgation of a decision in the appeal, the Veteran withdrew her Substantive Appeal with respect to the issue of entitlement to TDIU and, therefore, there remains no allegations of errors of fact or law for appellate consideration regarding this issue.  Further, there is no indication in the record that the Veteran wished to reinstate the appeal.  Accordingly, the Board does not have jurisdiction to review the appeal, and it is dismissed.

In light of the analysis above, the Veteran's appeal must be dismissed.  

 

Michael A. Pappas

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Palidar, E.

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.