04-37 763 ( 2010 )

Citation Nr: 1045637
Decision Date: 12/06/10 Archive Date: 12/14/10
DOCKET NO. 04-37 763A ) DATE
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUE
Entitlement to a total rating based upon individual
unemployability (TDIU) due to service-connected disabilities.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
John Kitlas, Counsel
INTRODUCTION
The Veteran served on active duty from March 2003 to May 2003.
This matter is before the Board of Veterans' Appeals (Board) on
appeal from a July 2004 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
The Board observes that the Veteran also perfected an appeal on
the issues of entitlement to service connection for right
parietal primitive neuro-ectodermal tumor, and for a focal
sensory seizure disorder. Service connection was established for
the former by a November 2008 Board decision. Although the Board
remanded the latter claim for additional development, service
connection was subsequently established for a focal seizure
disorder by a May 2010 rating decision. Nothing in the record
reflects the Veteran has disagreed with either the initial
rating(s) assigned for these disabilities, or the effective
date(s) thereof. In view of the foregoing, these issues have
been resolved and are not on appeal before the Board. See
generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and
Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997).
FINDINGS OF FACT
In November 2010, prior to the promulgation of a decision in the
appeal, the Board received notification from the Veteran that a
withdrawal of his appeal on the issue of entitlement to a TDIU is
requested.
CONCLUSION OF LAW
The criteria for withdrawal of an appeal by the Veteran have been
met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §
20.204 (2010).
REASONS AND BASES FOR FINDINGS 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.A. § 7105 (West 2002). An appeal may be withdrawn as to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 (2010).
Withdrawal may be made by the appellant or by his or her
authorized representative. 38 C.F.R. § 20.204.
In the present case, the Veteran has withdrawn his appeal on the
issue of entitlement to a TDIU due to service-connected
disabilities. Hence, 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.
ORDER
The appeal is dismissed.
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs