Citation Nr: 1641343	
Decision Date: 10/21/16    Archive Date: 11/08/16

DOCKET NO.  03-37 012	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss.

2.  Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities.


REPRESENTATION

Veteran represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

The Veteran and his spouse



ATTORNEY FOR THE BOARD

M.W. Kreindler, Counsel


INTRODUCTION

The Veteran served on active duty from August 1954 to April 1958.

These matters came to the Board of Veterans' Appeals (Board) from November 2002 (TDIU) and August 2005 (hearing loss) rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  

In January 2007, the Board remanded the issues of an increased rating for bilateral hearing loss and entitlement to a TDIU.

In a June 2007 decision, the Board denied entitlement to a TDIU.  This denial was vacated by the Board in a January 2010 decision.  See 38 C.F.R. § 20.904(a) (2015).  

In October 2009, the Veteran testified at a hearing before the Board; the transcript is of record.  

In January 2010 and March 2016, the hearing loss and TDIU issues were remanded.

As will be discussed in detail below, the issue of entitlement to an increased rating for residuals of fractures of the right tibia/fibula has been raised by the record in a March 2007 submissions, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  03/08/2007 Informal Claims.  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015). 

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900 (c) (2015).  38 U.S.C.A. § 7107 (a)(2) (West 2014).

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDING OF FACT

In a September 2016 submission, prior to the promulgation of a decision in the appeal, the Veteran's representative withdrew the appeal of the issue of entitlement to an increased rating for bilateral hearing loss.  


CONCLUSION OF LAW

The criteria for withdrawal of an appeal of the issue of entitlement to an increased rating for bilateral hearing loss by the Veteran have been met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

In the present case, in the September 2016 Informal Hearing Presentation submitted by the Veteran's representative, the appeal of entitlement to an increased rating for bilateral hearing loss was withdrawn.  

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 2014).  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 (2015).  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204.  Hence, here, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal concerning the issue of entitlement to an increased rating for bilateral hearing loss, and the appeal is dismissed.


ORDER

Entitlement to a disability rating in excess of 40 percent for bilateral hearing loss is dismissed.


REMAND

In a January 2007 decision, the Board denied entitlement to a disability rating in excess of 30 percent for residuals of right tibia/fibula fractures.  

In March 2007, the Veteran submitted correspondence to the Oakland RO stating that he was "appealing your decision regarding my right leg Tibia and Fibular injury.  I am confused about the degrees of ankylosis shown for my right leg compared to the degree of ankylosis of my left leg.  In my records it shows a higher evaluation of 40% would be warranted if ankylosis for my right ankle showed Plantar Flexion at more than 40 degrees and Dorsi Flexion at more than 10 degrees."  03/08/2007 Informal Claims.

In the January 2016 Informal Hearing Presentation, the Veteran's representative asserts that such submission constitutes a valid Notice of Appeal to the Court of Appeals for Veterans Claims (Court), or, in the alternative, constitutes an informal increased rating claim which has not been adjudicated and which is inextricably intertwined with the TDIU issue in appellate status.  

Attached to the January 2007 Board decision was a document entitled '