Citation Nr: 1329826	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  10-04 295	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to a disability rating higher than 30 percent for bilateral hearing loss.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

A.E.H. Gibson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 1952 to May 1953.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which increased the rating for the Veteran's bilateral (left and right ear) hearing loss disability from 0 percent (i.e., noncompensable) to 30 percent retroactively effective from October 9, 2007, the date of receipt of her request to reopen this claim for a higher rating for this disability.  She appealed for an even higher rating for this disability.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (It is presumed a Veteran is requesting the highest possible rating for a disability absent express indication to the contrary).

In her January 2010 Substantive Appeal (on VA Form 9), the Veteran requested a hearing before the Board.  But in February 2010, after being asked to clarify the type of hearing she wanted before the Board, she withdrew her hearing request, indicating she instead wanted her appear sent directly to the Board (BVA) as soon as possible.  See 38 C.F.R. §§ 20.702(e); 20.704(e) (2013).

She since has indicated through her representative that she is withdrawing her entire appeal of this claim, however, so the Board must summarily dismiss her appeal.

Please also note this appeal had 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 a recent statement dated September 11, 2013, which contained the Veteran's name and claim number and which was received prior to the promulgation of a decision on this appeal by the Board, the Veteran indicated through her representative that she is withdrawing her appeal for a higher disability rating for her bilateral hearing loss.


CONCLUSION OF LAW

The criteria are met for withdrawal of her Substantive Appeal concerning this claim.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Pursuant to 38 C.F.R. § 20.204(b), a withdrawal of an appeal must be in writing, must include the name of the Veteran, the applicable claim number, and a statement that the appeal is being withdrawn, and must be received by the Board prior to issuance of a decision regarding the claim being withdrawn.  The statement from the Veteran's representative, dated September 11, 2013 and received at the Board the following day, so on September 12, 2013, lists the Veteran's name and claim number and clearly expresses her intent on withdrawing her appeal of this claim.  And since the Board had not yet issued a decision concerning this claim, the criteria are met for withdrawal of the appeal of this claim.  See id. 

When a pending appeal is withdrawn, there is no longer an allegation of error of fact or law with respect to the determination that had been previously appealed.  Consequently, dismissal of the pending appeal is the appropriate disposition.  
38 U.S.C.A. § 7105(d).

Accordingly, further action by the Board concerning this claim of entitlement to a higher disability rating for the bilateral hearing loss is unwarranted, and the appeal of this claim is dismissed.  Id. 



ORDER

The claim of entitlement to a disability rating higher than 30 percent for the bilateral hearing loss is dismissed.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs