Citation Nr: 1323041	
Decision Date: 07/18/13    Archive Date: 07/24/13

DOCKET NO.  12-00 322	)	DATE
	)


On appeal from the decision of the 
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial rating greater than 10 percent, effective May 26, 2011, for bilateral sensorineural hearing loss and for a rating greater than 30 percent from July 16, 2012.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel


INTRODUCTION

The Veteran served on active duty from March 1953 to March 1957.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.  The veteran had a hearing before the Board in January 2013 and the transcript is of record.

The case was brought before the Board in February 2013, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim, to include affording him a VA examination. The requested development having been partially completed, the case is once again before the Board for appellate consideration of the issue on appeal. 

In a May 2013 rating decision, the RO granted an increased rating to 30 percent for bilateral sensorineural hearing loss, effective July 16, 2012.  After the Veteran has perfected his appeal, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993).  Accordingly, the issue is still properly before the Board here and has been appropriately rephrased above.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).





FINDING OF FACT

In June 2013,  prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that a withdrawal of this appeal is requested.


CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran, through 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 FINDING 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, the Veteran , through his authorized representative, has withdrawn this appeal and, 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.




		
KATHLEEN K. GALLAGHER
	Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs