Citation Nr: 1325469	
Decision Date: 08/12/13    Archive Date: 08/16/13

DOCKET NO.  08-38 406	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to a disability rating greater than 10 percent prior to January 27, 2009, and greater than 20 percent thereafter, for low back pain.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

S. Dale, Counsel




INTRODUCTION

The Veteran had active service from August 1996 to August 2000.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

The Board observes that, although the Veteran only discussed his increased rating claim for low back pain when he submitted a timely VA Form 9 (substantive appeal) in December 2008, he also submitted a VA Form 21-4138 in January 2009 in which he asserted that he was entitled to service connection for bilateral hearing loss.  The Board finds that the Veteran's January 2009 VA Form 21-4138 should be considered a timely filed substantive appeal with respect to his service connection claim for bilateral hearing loss as it was received by VA within 1 year of the challenged rating decision.  Thus, the issues are as stated on the title page of this decision.  The Regional Office has also treated the hearing loss claim as being on appeal by issuing a Supplemental Statement of the Case.  See Percy v. Shinseki, 23 Vet. App. 37 (2009).

In September 2011, the Board remanded the Veteran's claim for further evidentiary development.  As will be discussed below, the Veteran is withdrawing his claims.  Accordingly, discussion of whether there was substantial compliance with the Board's prior remand directives is unnecessary.  


FINDING OF FACT

By way of June 2013 written correspondence from the Veteran's representative, prior to promulgation of a decision, the Veteran withdrew his appeal.




CONCLUSION OF LAW

The criteria for withdrawal of a substantive appeal by the Veteran as to the issues of entitlement to service connection for bilateral hearing loss and entitlement to a disability rating greater than 10 percent prior to January 27, 2009, and greater than 20 percent thereafter, for low back pain, have been met.  38 U.S.C.A. § 7105(b) (2), (d) (5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2012).


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.  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) (2012).  Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(c) (2012) (as amended by 68 Fed. Reg. 13,235 (April 18, 2003)).

By correspondence from the Veteran's representative dated in June 2013, prior to the promulgation of a decision in the appeal, the Veteran indicated that he wished to withdraw his appeal.  The Board finds that the criteria have been met for withdrawal of the Veteran's appeal as to the issues of entitlement to service connection for bilateral hearing loss and entitlement to a disability rating greater than 10 percent prior to January 27, 2009, and greater than 20 percent thereafter, for low back pain.  Accordingly, there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal, and it is dismissed.


ORDER

The appeal as to entitlement to service connection for bilateral hearing loss is dismissed.

The appeal as to entitlement to a disability rating greater than 10 percent prior to January 27, 2009, and greater than 20 percent thereafter, for low back pain, is dismissed.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs