Citation Nr: 1317828	
Decision Date: 05/31/13    Archive Date: 06/06/13

DOCKET NO.  07-32 258	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to service connection for bilateral sensorineural hearing loss. 

2.  Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for tinnitus. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel



INTRODUCTION

The Veteran served on active duty from July 1971 to July 1993. 

This matter is before the Board of Veterans' Appeals  (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa where the RO declined reopening the claims of service connection for hearing loss and tinnitus finding no new and material evidence had been submitted. 

Thereafter, in a September 2007 Statement of the Case (SOC), the RO reopened the claims and denied them on the merits.  In August 2011, this matter was before the Board, at which time it was noted that regardless of the RO's actions, the Board is required to consider whether new and material evidence has been received warranting the reopening of the previously denied claim.  See Barnette v. Brown, 83 F.3d 1380   (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Wakeford v. Brown, 8 Vet. App. 237 (1995) (VA failed to comply with its own regulations by ignoring issue of whether any new and material evidence had been submitted to reopen the veteran's previously and finally denied claims).  

In August 2011, the Board reopened the service connection claim for hearing loss but remanded this matter, along with the claim to reopen service connection for tinnitus for additional development.  The Board also remanded a service connection claim for posttraumatic stress disorder (PTSD).  However, the RO granted service connection for PTSD in a February 2013 rating decision.  Therefore, there remains no case or controversy regarding that matter.  

The Board notes the Veteran originally requested a hearing before the Board on his October 2007 substantive appeal form.  Thereafter, the Veteran withdrew his request in a March 2008 statement. 




FINDING OF FACT

In a March 2013 written statement, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal regarding  hearing loss and tinnitus.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for bilateral hearing loss have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).

2.  The criteria for withdrawal of a substantive appeal by the Veteran on the issue of a claim to reopen service connection for tinnitus on the basis of new and material evidence have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed.  A substantive appeal may be withdrawn in writing or on record at a hearing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b) (2012).  Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204(c).

The Veteran has submitted a written statement that he wished to withdraw his appeal regarding hearing loss and tinnitus.  

Because the Veteran has withdrawn his appeal as to hearing loss and tinnitus, there remain no allegations of error of fact or law for appellate consideration on these issues, and the Board does not have further jurisdiction.


ORDER

Entitlement to service connection for bilateral sensorineural hearing loss is dismissed. 

Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for tinnitus is dismissed.



____________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs