Citation Nr: 1337678 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-46 957A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) and major depressive disorder. 2. Entitlement to an increased disability rating for tinnitus, currently rated 10 percent disabling. 3. Entitlement to a compensable disability rating for hearing loss, left ear. 4. Entitlement to an increased disability rating for residuals, fracture, right ankle, rated 10 percent disabling prior to November 29, 2011, and rated 20 percent disabling from November 29, 2011. 5. Entitlement to an increased rating for residuals, right knee injury, currently rated 10 percent disabling. 6. Entitlement to an increased rating for residuals, left knee injury, currently rated 10 percent disabling. 7. Entitlement to an increased rating for instability, right knee, currently rated 20 percent disabling. 8. Entitlement to an increased rating for instability, left knee, currently rated 10 percent disabling. 9. Entitlement to an increased rating for chronic low back strain, currently rated 10 percent disabling. 10. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities for the period prior to November 29, 2011. 11. Eligibility for Dependents' Educational Assistance (DEA) benefits for the period prior to November 29, 2011. REPRESENTATION Veteran represented by: Heather E. VanHoose, Attorney-at-Law ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from March 1993 to November 1997. These matters come to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In an August 2008 rating decision, the RO denied entitlement to increased ratings for tinnitus; hearing loss, left ear; residuals, fracture, right ankle; residuals, left knee injury; residuals, right knee injury; chronic low back strain; entitlement to a TDIU; and, eligibility for DEA benefits. A notice of disagreement was filed in October 2008, a statement of the case was issued in September 2009, and a substantive appeal was received in December 2009. In a May 2010 rating decision, the RO granted entitlement to service connection for PTSD and major depressive disorder, assigning a 70 percent disability rating, effective December 8, 2008. A notice of disagreement was filed in July 2010 with regard to the disability rating assigned. A statement of the case was issued in October 2010 and a substantive appeal was received in November 2010. In a September 2013 rating decision, the RO assigned a separate 20 percent rating to instability, right knee, and a separate 10 percent disability rating to instability, left knee, both effective November 29, 2011; and, assigned a 20 percent rating to residuals, fracture, right ankle, effective November 29, 2011. Although increased ratings were granted, the issues remain in appellate status, as the maximum schedular ratings have not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). The RO also granted entitlement to a TDIU and DEA benefits, effective November 29, 2011. The RO considered this a full grant of the benefits sought on appeal; however, as the benefits were not assigned for the full period contemplated by the appeal, the issues remain in appellate status for the period prior to November 29, 2011. Id. The Board acknowledges that the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO; however, he withdrew this request in a May 2013 submission. The issues of entitlement to increased ratings for tinnitus; hearing loss, left ear, residuals, fracture, right ankle; residuals, left knee injury; residuals, right knee injury; instability, right knee; instability, left knee; chronic low back strain; and, entitlement to a TDIU and DEA benefits, for the period prior to November 29, 2011, are addressed in the REMAND portion of the decision below and are REMANDED to the VA Louisville RO. FINDINGS OF FACT 1. The Veteran in this case served on active duty from March 1993 to November 1997. 2. On September 6, 2013, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, through his attorney, that a withdrawal of the issue of entitlement to an initial disability rating in excess of 70 percent for PTSD and major depressive disorder is requested. CONCLUSION OF LAW The criteria for withdrawal of the issue of entitlement to an initial disability rating in excess of 70 percent for PTSD and major depressive disorder by the Veteran (or 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 FINDINGS 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 Veteran or by his authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran, through his attorney, has withdrawn the issue of entitlement to an initial disability rating in excess of 70 percent for PTSD and major depressive disorder and, hence, there remain no allegations of errors of fact or law for appellate consideration with regard to this issue. Accordingly, the Board does not have jurisdiction to review the issue of entitlement to an initial disability rating in excess of 70 percent for PTSD and major depressive disorder, and this issue is dismissed. ORDER Entitlement to an initial disability rating in excess of 70 percent for PTSD and major depressive disorder is dismissed. REMAND In his December 2009 substantive appeal (VA Form 9), the Veteran requested a Travel Board hearing. While the Veteran has withdrawn his request for a DRO hearing, he has not withdrawn his request for a Board hearing. Accordingly, the case is REMANDED for the following action: Schedule the Veteran for a Travel Board hearing. The Veteran and his attorney have the right to submit additional evidence and argument on the matters 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 of Veterans' Appeals 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. 2012). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs