Citation Nr: 21030018
Decision Date: 05/17/21	Archive Date: 05/17/21

DOCKET NO. 17-15 427
DATE: May 17, 2021

ORDER

The appeal for entitlement to higher staged ratings for bilateral hearing loss, rated noncompensable percent prior to October 2, 2019, 70 percent from October 2, 2019 to March 5, 2021, and 80 percent from March 6, 2021, is dismissed.

The appeal for entitlement to a disability rating higher than 10 percent for tinnitus is dismissed.

FINDING OF FACT

On April 3, 2021, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of this appeal, as to the issues listed above, is requested.

CONCLUSION OF LAW

The criteria for withdrawal of an appeal by the Veteran have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran's active service included periods from July 1972 to July 1975 and May 1977 to December 2002.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).

Further, the Board recognizes, that the Veteran, in his June 2016 notice of disagreement (NOD) as to the August 2015 rating decision, did not explicitly disagree with the evaluation assigned for his tinnitus but generally indicated his tinnitus had worsened.  Also, in a March 2017, VA Form 9, substantive appeal, the Veteran indicated he only was appealing the issue of an increased rating for his hearing loss; however, he also reported he had increased ringing in both ears.  Thus, as evidence of record shows VA liberally construed both the Veteran's June 2016 NOD and March 2017 substantive appeal as timely as to the evaluation assigned for his tinnitus and performed subsequent actions addressing the appeal as such, the Board will continue to recognize the issue as on appeal.  Percy v. Shinseki, 23 Vet. App. 37, 46 (2009).

These matters were previously before the Board in January 2019, when they were remanded for further development.  They now returns for appellate review.

Additionally, during the pendency of the claim for an increased rating for Veteran's bilateral hearing loss, received by VA in May 2015, a March 2021 rating decision granted a 70 percent rating effective October 2, 2019 and 80 percent rating effective March 6, 2021.  Because these awards do not represent a grant of the maximum benefits allowable under the VA Schedule for Rating Disabilities for the entire appeal period, the Veteran's appeal as to this issue returned to the Board for consideration.  AB v. Brown, 6 Vet. App. 35, 38 (1993).

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. § 7105.  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. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  In the present case, the Veteran, in correspondence received by VA in April 2021, withdrew this appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

 

 

M. C. GRAHAM

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Espinoza, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.