Citation Nr: 1309923 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-18 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for benign prostatic hypertrophy, status post prostate reduction. 2. Entitlement to service connection for hearing loss, right ear. 3. Whether new and material evidence has been submitted to reopen the claim for service connection for left pneumothorax, also claimed as collapsed left lung. 4. Whether new and material evidence has been submitted to reopen the claim for service connection for right pneumothorax, also claimed as collapsed right lung. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Waco, Texas. The issues of entitlement to service connection for hearing loss, right ear; whether new and material evidence has been submitted to reopen the claim for service connection for left pneumothorax, also claimed as collapsed left lung; and whether new and material evidence has been submitted to reopen the claim for service connection for right pneumothorax, also claimed as collapsed right lung, are addressed in the remand portion of the decision below and are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT In April 2012, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for benign prostatic hypertrophy, status post prostate reduction. CONCLUSION OF LAW The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for benign prostatic hypertrophy, status post prostate reduction, have been met. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the Veteran or by his authorized representative, except that a representative may not withdraw a substantive appeal filed by the Veteran personally without the express written consent of the Veteran. 38 C.F.R. § 20.204(c). With regard to the issues of entitlement to service connection for benign prostatic hypertrophy, status post prostate reduction, prior to the promulgation of a decision by the Board, the Veteran indicated that he wished to withdraw his appeal. Specifically, the Veteran submitted a statement dated in April 2012 at the time of his Travel Board hearing wherein he indicated that he wished to withdraw his appeal as to the issue of entitlement to service connection for benign prostatic hypertrophy, status post prostate reduction, and that he wished to continue his appeal as all other issues. Further, during his hearing testimony, the Veteran also confirmed his desire to withdraw his appeal as to the issue of entitlement to service connection for benign prostatic hypertrophy, status post prostate reduction. As a result, no allegation of error of fact or law remains before the Board for consideration with regard to this issue. As such, the Board finds that the Veteran has withdrawn this claim, and accordingly, the Board does not have jurisdiction to review the appeal as to the issue of entitlement to service connection for benign prostatic hypertrophy, status post prostate reduction, and it is dismissed. ORDER The claim of entitlement to service connection for benign prostatic hypertrophy, status post prostate reduction, is dismissed. REMAND Pursuant to his claims of entitlement to service connection for hearing loss, right ear; whether new and material evidence has been submitted to reopen the claim for service connection for left pneumothorax, also claimed as collapsed left lung; and whether new and material evidence has been submitted to reopen the claim for service connection for right pneumothorax, also claimed as collapsed right lung, the Veteran testified at an April 2012 Board hearing before an Acting Veterans Law Judge. Following the April 2012 hearing, the Acting Veterans Law Judge who conducted the hearing left the Board. Generally, the law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Because the Veterans Law Judge who conducted the April 2012 hearing is no longer employed by the Board, she cannot participate in the adjudication of the Veteran's claims. As such, in February 2013, the Board sent the Veteran a letter requesting that he indicate on a provided form whether he desired another opportunity to testify at a hearing before a new Veterans Law Judge, or if he wanted the Board to proceed with the adjudication of his appeal. In February 2013, the Veteran returned the provided form wherein he indicated that he wished to appear for a hearing before a new Veterans Law Judge via video conference at the RO. This additional hearing must be scheduled before the Board can adjudicate the Veteran's claims of entitlement to service connection for hearing loss, right ear; whether new and material evidence has been submitted to reopen the claim for service connection for left pneumothorax, also claimed as collapsed left lung; and whether new and material evidence has been submitted to reopen the claim for service connection for right pneumothorax, also claimed as collapsed right lung. 38 C.F.R. § 20.700(a) (2012). Accordingly, the case is remanded for the following action: The RO must schedule the Veteran for a Board hearing via video conference at the earliest opportunity. Notify him of the date, time, and location of the hearing, and put a copy of this letter in his claims file. Once he has been afforded this requested hearing, or in the event that he withdraws his hearing request or fails to appear, the file must be returned to the Board. No action is required by the Veteran until he receives further notice; however, the Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs