Citation Nr: 1829831
Decision Date: 08/29/18 Archive Date: 09/05/18
DOCKET NO. 16-05 404 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Lincoln, Nebraska
THE ISSUE
Entitlement to higher ratings for traumatic brain injury (TBI), initially evaluated as 10 percent disabling from November 28, 2014, to July 29, 2016, and as zero percent disabling (noncompensable) from July 29, 2016.
REPRESENTATION
Appellant represented by: American Red Cross
ATTORNEY FOR THE BOARD
K. Neilson, Counsel
INTRODUCTION
The Veteran served on active duty from April 2007 to November 2014. He had additional prior service in the United States Army Reserves with an initial period of active duty for training from January 12, 2005, to June 8, 2005.
This appeal to the Board of Veterans' Appeals (Board) arose from an August 2015 rating decision in which the RO, inter alia, denied granted service connection for a traumatic brain injury (TBI) and assigned a 10 percent rating, effective from November 28, 2014 .and increased, from 30 to 50 percent, the initial rating assigned for the Veteran's anxiety disorder, effective November 28, 2014. In September 2015, the Veteran filed a notice of disagreement (NOD) with the respect to the assigned ratings. In January 2016, the RO issued a statement of the case (SOC) and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) the following month.
Following additional development, the RO issued a July 2016 rating decision wherein it increased, from 50 to 70 percent, the rating assigned for the Veteran's anxiety disorder, effective from July 12, 2016. A supplemental SOC (SSOC) was issued that same month addressing the evaluation of the Veteran's TBI and anxiety disorder. Notably, in an August 2016 rating decision, the RO granted entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), effective from November 28, 2014. The Veteran thereafter submitted correspondence expressing satisfaction with his 70 percent rating for anxiety disorder and the grant of TDIU and stating his desire to withdraw his appeal with respect to a higher rating for anxiety disorder. The appeal as to the issue of entitlement to a higher initial rating for anxiety disorder was then withdrawn by the agency of original jurisdiction and is therefore not currently before the Board.
Also in August 2016, the RO issued a rating decision wherein it, inter alia, decreased the Veteran's TBI rating from 10 to zero (noncompensable) percent, effective July 29, 2016. An SSOC addressing only entitlement to a higher rating for TBI was issued that same month and in October 2018 that matter was certified for appeal to the Board.
As a final preliminary matter, the Board notes that on his VA Form 9, the Veteran requested a Board hearing before a Veterans Law Judge in Washington, D.C. However, as discussed below, prior to that hearing being scheduled, the Veteran withdrew his appeal.
FINDING OF FACT
In an August 2018 statement, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that the Veteran wished to withdraw his appeal as to the issue of entitlement to higher rating for TBI.
CONCLUSION OF LAW
The criteria for withdrawal of an appeal as to the issue of entitlement to a higher initial rating for TBI are met. 38 U.S.C. § 7105(b)(2), (d)(5) (2012); 38 C.F.R. § 20.204 (2017).
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 (2012). 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. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204.
In an August 2018 statement, in response to being notified that his appeal as to the issue of entitlement to a higher initial rating for TBI had been docketed by the Board, the Veteran requested that his appeal be removed from the Board's docket, noting that he had been determined to be permanently unemployable and that the appeal should have been previously withdrawn.
Given the withdrawal, no allegations of errors of fact or law remain for appellate consideration. The Board therefore does not have jurisdiction to review the appeal as to the claim for a higher initial rating for TBI, and it must be dismissed.
ORDER
The appeal as to the issue of entitlement to higher ratings for TBI is dismissed.
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JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs