Citation Nr: 1331386	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  10-14 119	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

3.  Entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

M. Espinoza, Associate Counsel



INTRODUCTION

The Veteran had active service from February 1966 to February 1968. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The issue of entitlement to an initial evaluation in excess of 70 percent for posttraumatic stress disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

On September 3, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his authorized representative, that withdrawal his claims for entitlement to service connection for bilateral hearing loss and tinnitus, is requested.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the appeal for entitlement to service connection for bilateral hearing loss, by the Veteran's authorized representative, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012).

2. The criteria for withdrawal of the appeal for entitlement to service connection for tinnitus, by the Veteran's 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 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.  38 C.F.R. § 20.202 (2012).  An appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision.  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204 (2012).

In the informal hearing presentation, dated September 3, 2013, the Veteran, through his authorized representative, withdrew his appeal as to the issues of entitlement to service connection for bilateral hearing loss and tinnitus.  As a result, there remain no allegations of error of fact or law for appellate consideration with regard to the issues of entitlement to service connection for bilateral hearing loss and service connection for tinnitus.  Accordingly, they are therefore dismissed.


ORDER

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

The appeal for entitlement to service connection for tinnitus is dismissed.


REMAND

In the April 2008 rating decision, the RO granted the Veteran's claim to establish service connection for PTSD; and a 30 percent evaluation was initially assigned, effective from October 5, 2006.  In June 2008, the Veteran submitted a timely notice of disagreement (NOD) requesting a higher initial rating for PTSD.  During pendency of this appeal, in a January 2010 rating decision, the RO increased the Veteran's PTSD rating to 70 percent, effective from October 5, 2006.  In the January 2010 rating decision, the RO stated that the assignment of a 70 percent evaluation for PTSD was considered a total grant of the benefit sought on appeal due to the Veteran's statement in his June 2008 NOD.  In the June 2008 NOD, the Veteran stated he believed that he should be rated at least 50 percent disabled for PTSD based on his symptoms.  This notwithstanding, the Veteran is presumed to be seeking the highest possible rating for a disability unless he or she expressly indicates otherwise.  See A.B. v. Brown, 6 Vet. App. 35, 39 (1993).  Thus, the increased evaluation awarded in the January 2010 rating decision is not a total grant of the benefit sought on appeal and a statement of the case must be issued.  Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board.  Manlincon v. West, 12 Vet. App. 238 (1999).  

Accordingly, the case is REMANDED for the following action:

Issue a statement of the case pursuant to the notice of disagreement received in June 2008, as to the rating decision in April 2008, which the Veteran is appealing for an increased evaluation for PTSD.  Even though an increased evaluation for PTSD was granted during the pendency of the claim, the Veteran is presumed to be seeking the highest possible rating.  The statement of the case should include a discussion of all relevant evidence considered and citation to all pertinent law and regulations.  

The Veteran must be advised of the time limit in which he may file a substantive appeal.  See 38 C.F.R. § 20.302(b) (2012).  

Only if the Veteran completes an appeal with respect to this issue by the timely filing of a substantive appeal should such be certified to the Board for appellate consideration.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs