Citation Nr: 1313086	
Decision Date: 04/19/13    Archive Date: 05/02/13

DOCKET NO.  10-01 361	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUE

Entitlement to a compensable initial evaluation for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Bernard T. DoMinh, Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from February 1969 to February 1971.  His military records reflect that he served in combat in the Republic of Vietnam and was decorated with the Combat Infantryman Badge in recognition of his service.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, reopened and granted the Veteran's claim of entitlement to service connection for bilateral hearing loss.  The award of service connection and an initial noncompensable evaluation was assigned for the hearing loss disability effective May 2, 2008 (i.e., the date on which the Veteran's successful application to reopen his claim was received by VA).  The Veteran appeals the initial zero percent rating assigned for this audiological disability.

At a March 2010 RO hearing, the Veteran, accompanied by his representative, presented evidence and oral testimony and arguments in support of his appeal before a Decision Review Officer.  (The Board notes that an additional claim for service connection for tinnitus was in appellate status, but that during the course of the appeal but before the appeal was certified to the Board, the Veteran was granted service connection and a 10 percent evaluation for tinnitus in a November 2011 rating decision, thereby fully granting the benefit sought on appeal with regard to the tinnitus claim.)

In September 2012, the appeal for an initial compensable evaluation for bilateral hearing loss was certified to the Board.  Thereafter, in January 2013, the claims file was transferred to the custody of the Board.



FINDINGS OF FACT

In April 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant via his representative requesting a withdrawal of his appeal with regard to the initial rating assigned for an original award of service connection for bilateral hearing loss, which is currently in appellate status.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the appellant (via his authorized representative) have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).


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 (2012).  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204.  In the present case, after the appeal was transferred to the custody of the Board in January 2013, but prior to promulgation of an appellate decision, the appellant, via his representative through written correspondence dated in April 2013, expressly withdraws his appeal with regard to the remaining issue of entitlement to an initial compensable evaluation for bilateral hearing loss; 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 therefore dismissed.



ORDER

The appeal of the January 2009 rating decision, with respect to the issue of entitlement to an initial compensable evaluation for an original award of service connection for bilateral hearing loss, is dismissed.



		
F. JUDGE FLOWERS
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs