Citation Nr: 1237745	
Decision Date: 11/05/12    Archive Date: 11/09/12

DOCKET NO.  10-12 795	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an increased rating for bilateral hearing loss disability, currently rated as noncompensable.  

2.  Entitlement to an increased rating for residuals of shell fragment wound, right buttock, currently rated as 10 percent disabling.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant



ATTORNEY FOR THE BOARD

T. S. Willie, Counsel


INTRODUCTION

The Veteran had active service from September 1966 to June 1975.

This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The Veteran testified before the undersigned Veterans' Law Judge in March 2012.  A transcript of that hearing is of record.  

The issue of entitlement to an increased rating for a bilateral hearing loss disability, currently rated as noncompensable, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

In the March 2012 hearing, the Veteran's representative stated that the Veteran wished to withdraw the appeal for a higher rating for residuals of shell fragment wound of the right buttock.  


CONCLUSION OF LAW

The criteria for withdrawal of the appeal of an increased rating for residuals of shell fragment wound, right buttock, currently rated as 10 percent disabling, have been met.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.204, 20.1404 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

Pursuant to 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his/her authorized representative.  38 C.F.R. § 20.204. 

In the March 2012 hearing, the Veteran's representative expressed that the Veteran wished to withdraw the appeal for a higher rating for residuals of shell fragment wound of the right buttock.  The Board finds that this statement qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204. 

In light of the Veteran's withdrawal of the appeal, there remains no allegation of error of fact or law for appellate consideration.  Therefore, the Board does not have jurisdiction to review the claim for entitlement to an increased rating for residuals of shell fragment wound of the right buttock.  The claim is dismissed.  


ORDER

The claim for an increased rating for residuals of shell fragment wound of the right buttock, currently rated as 10 percent disabling, is dismissed. 


REMAND

The Veteran has appealed the denial of a compensable rating for his bilateral hearing loss disability.  In relation to his claim for an increased rating, the Veteran was afforded VA audiological examinations in October 2007, April 2009 and March 2010.  During his March 2012 hearing, however, he indicated that his hearing loss was worse than evaluated and that he has been issued hearing aids and amplifiers for around the house.  He expressed that his VA examination did not take into account his environment to include him being a college professor.  According to the Veteran, his hearing loss prevents his for holding a conversation, going to the movies, conversing with his students, listening in church, etc.  Several lay statements have also been submitted discussing the Veteran's inability to hear, to include in the classroom setting.

Pursuant to 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4)(i), VA will obtain an examination or an opinion if it is necessary to decide the claim.  Here, the evidence indicates a potential worsening of the Veteran's hearing loss disability, as such another examination is warranted before final appellate consideration.  

Accordingly, the case is REMANDED for the following action:

1.  After obtaining any outstanding audiology records, schedule the Veteran for a VA audiology examination to determine the severity of his bilateral hearing loss disability.  All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail.  

2.  When all directed development has been conducted readjudicate the issue on appeal.  If the benefit on appeal has not been granted fully, issue a supplemental statement of the case and provide the Veteran and his representative the appropriate period of time to respond.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).



______________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs