Citation Nr: 1337995	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  10-23 031	)	DATE
	)
	)

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


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss. 

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


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel



INTRODUCTION

The Veteran served on active duty from November 1965 to August 1967.

This appeal to the Board of Veterans' Appeals (Board) arose from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied reopening the claim of entitlement to service connection for bilateral hearing loss, and which granted service connection for PTSD and assigned an initial 10 percent rating, effective March 13, 2009.

In an April 2013 rating decision, the RO increased the initial rating for PTSD to 70 percent, effective March 13, 2009; continued a previously assigned 100 percent rating for active prostate cancer; and granted entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities, effective from March 13, 2009 until June 2, 2011, the date that service connection was established for prostate cancer.  Regarding the issue of a higher disability rating for PTSD, the Court has held that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal."  AB v. Brown, 6 Vet. App. 35, 38 (1993).


FINDING OF FACT

On October 2, 2013, prior to the promulgation of a decision on the appeal, the Veteran notified the Board that he withdrew his appeal of the issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss and entitlement to an initial rating in excess of 70 percent for PTSD.






CONCLUSION OF LAW

The criteria for withdrawal of the appeal of the issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss and entitlement to an initial rating in excess of 70 percent for PTSD have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Applicable Law and Regulations

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.  Withdrawal may be made by an appellant or by his or her authorized representative.  38 C.F.R. § 20.204.

II. Analysis

In the present case, in correspondence received by the Board on October 2, 2013 prior to the promulgation of a decision on the appeal, the Veteran withdrew his perfected appeal of the issues of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss and entitlement to an initial rating in excess of 70 percent for PTSD.  Hence, there remain no allegations of errors of fact or law for appellate consideration of those issues.  38 C.F.R. § 20.204.  Accordingly, the Board does not have jurisdiction to review the appeal of those issues, and they are dismissed.



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ORDER

The appeal of the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for bilateral hearing loss is dismissed.

The appeal of the issue of entitlement to an initial rating in excess of 70 percent for PTSD is dismissed.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs