Citation Nr: 1339735	
Decision Date: 12/03/13    Archive Date: 12/18/13

DOCKET NO.  10-13 581A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for hearing loss in the right ear.

2.  Entitlement to service connection for a deviated nasal septum.

3.  Entitlement to an initial rating higher than 30 percent for status-post pulmonary embolism.

REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States

WITNESSES AT HEARING ON APPEAL

Veteran and D.G. 

ATTORNEY FOR THE BOARD

J. Meawad, Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from May 1984 to November 2008.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in June 2009 of a Department of Veterans Affairs (VA) Regional Office (RO).

In April 2011, the Board remanded the case for further development.

In August 2011, the Veteran was afforded a hearing before the undersigned.  A transcript of the hearing is of record.  

The claim for increase for residuals of a pulmonary embolism is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  In August 2011, prior to the promulgation of a decision on the appeal, the Veteran withdrew in writing the claim of service connection for hearing loss of the right ear.

2.  In August 2011, prior to the promulgation of a decision on the appeal, the Veteran withdrew in writing the claim of service connection for a deviated nasal septum.









CONCLUSIONS OF LAW

1.  The criteria for withdrawal of a substantive appeal by the Veteran on the claim of service connection for hearing loss of the right ear have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).

2.  The criteria for withdrawal of a substantive appeal by the Veteran on the claim of service connection for a deviated nasal septum have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).




REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  38 C.F.R. §§ 20.202, 20.204(b).   

In April 2010, the Veteran perfected an appeal to the Board of the claims of service connection for hearing loss of the right ear and a deviated nasal septum. 

In a statement, in writing, in August 2011, prior to the Board promulgating a decision on the appeal, the Veteran withdrew the appeal of the claims for service connection for hearing loss of the right ear and for a deviated nasal septum.  The Veteran's writing clearly evinces intent to withdraw the appeal.  Consequently the Board does not have appellate jurisdiction over the claims.  38 U.S.C.A. § 7105.






ORDER

The appeal of the claim for service connection for hearing loss in the right ear is dismissed.

The appeal of the claim for service connection for a deviated nasal septum is dismissed.


REMAND

The Veteran was afforded two VA examinations to evaluate the pulmonary disability.  The examinations provided pulmonary function test results for FEV1 and FVC.  In April 2011, the Veteran testified that his breathing problems occur with exertion.  

As the evidence of record is insufficient to decide the claim, further development under the duty to assist is needed.

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination to determine the current level of impairment due to residuals of a pulmonary embolism, including pulmonary function tests. 

The VA examiner is asked to address:

Whether the Veteran's shortness of breath can be measured by a pulmonary function test or by an exercise capacity test?



Whether the service-connected residuals of a pulmonary embolism impacts the Veteran's ability to work?

The Veteran's file must be made available to the examiner for review. 

2.  After the above development, adjudicate the claim.  If the benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board.  

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

The 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. 2013).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs