09-43 853 ( 2013 )

Citation Nr: 1339306
Decision Date: 11/29/13 Archive Date: 12/13/13
DOCKET NO. 09-43 853 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUE
Entitlement to a compensable rating for bilateral hearing loss prior to December 4, 2009, and to a rating higher than 20 percent since.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
C. Kedem, Counsel
INTRODUCTION
The Veteran served on active duty from December 1968 to December 1970.
This appeal to the Board of Veterans Appeals (Board/BVA) is from January 2008 and December 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) that initially denied entitlement to a compensable rating for service-connected bilateral hearing loss, but subsequently granted a higher 20 percent rating for this disability effective December 4, 2009, though no greater rating. The RO therefore has "staged" the rating to compensate the Veteran for variance in the severity of his disability. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This appeal continued, however, because a decision awarding a higher rating, but less that the maximum possible rating, does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38-39 (1993).
In January 2012, the Board remanded this claim to the RO via the Appeal Management Center (AMC) for further development.
But the Veteran since has indicated he is withdrawing his appeal of this claim. The Board therefore is summarily dismissing this appeal. See 38 C.F.R. § 20.204 (2013).
FINDING OF FACT
In a written communication dated in November 2013, prior to promulgation of a decision by the Board, the Veteran withdrew his appeal for higher ratings for his service-connected bilateral hearing loss.
CONCLUSION OF LAW
The criteria are met for withdrawal of the substantive appeal concerning this claim. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSION
According to 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. A substantive appeal (VA Form 9 or equivalent) may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative, except that a representative may not withdraw a substantive appeal filed by the appellant personally without the express written consent of the appellant. 38 C.F.R. § 20.204.
In November 2013, the Veteran withdrew his appeal of this increased-rating claim, so there remain no allegations of error of fact or law for appellate consideration. In essence, a "case or controversy" involving a pending adverse determination that he has taken exception to no longer exist. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). Accordingly, the Board is without jurisdiction to review the appeal of this claim, in turn requiring its dismissal without prejudice.
ORDER
This claim is summarily dismissed.
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KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs