Citation Nr: 21072059 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-64 703 DATE: December 2, 2021 ORDER As the claim for entitlement to service connection for right knee condition has been withdrawn, the appeal as to this issue is dismissed. As the claim for entitlement to service connection for bilateral hip condition has been withdrawn, the appeal as to this issue is dismissed. As the claim for entitlement to service connection for posttraumatic stress disorder (PTSD) has been withdrawn, the appeal as to this issue is dismissed. As the claim for entitlement to a compensable rating for bilateral hearing loss has been withdrawn, the appeal as to this issue is dismissed. Entitlement to service connection for residuals of superior labral tear, right shoulder, status post sub acromial decompression, distal clavicle excision, and superior labral repair is granted. FINDINGS OF FACT 1. At an August 2021 Board of Veterans' Appeals (Board) hearing, the Veteran stated that he wished to withdraw his pending appeal for the issues of entitlement to service connection for a right knee condition, bilateral hip condition, PTSD, and the claim for entitlement to a compensable rating for bilateral hearing loss. 2. There is a balance of evidence on whether the Veteran's right shoulder disability, currently diagnosed as residuals of superior labral tear, status post sub acromial decompression, distal clavicle excision, and superior labral repair, began during active service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claim of entitlement to service connection for right knee condition by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the claim of entitlement to service connection for bilateral hip condition by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the claim of entitlement to service connection for PTSD by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for withdrawal of the claim of entitlement to an increased rating for bilateral hearing loss by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The criteria for entitlement to service connection for a right shoulder disability, currently diagnosed as residuals of superior labral tear, status post sub acromial decompression, distal clavicle excision, and superior labral repair have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1988 to January 1989, May 2003 to May 2004, and February 2008 to August 2008, with additional service in the California National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. Withdrawn Claims 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, through his representative, has withdrawn the appeal as to the issues of service connection for right knee condition, bilateral hip condition, PTSD, and a compensable rating for bilateral hearing loss and, hence, there remain no allegations of errors of fact or law for appellate consideration. At the August 2021 hearing, the Veteran's representative indicated on the record that the Veteran wished to withdraw those claims. The Veterans Law Judge asked if the Veteran wished to withdraw those claims, which was confirmed by the Veteran's representative, and the Veteran was advised a new claim would need to be submitted to acquire VA benefits regarding those disabilities. Thus, there are no allegations of error of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection The Veteran contends that he injured his right shoulder during a period of active service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection is warranted for an injury incurred or aggravated during a period of inactive duty for training (INACDUTRA). 38 U.S.C. § 101 (24)(C); 38 C.F.R. § 3.6(a). Service connection may be granted for an injury or disease incurred or aggravated during a period of active duty for training (ACDUTRA). 38 U.S.C. § 101 (24)(B); 38 C.F.R. § 3.6(a). National Guard duty is considered federal service if it is full-time duty under section 316, 502, 503, 504, or 505 of Title 32. 38 U.S.C. § 101(22)(C). The Board concludes that the Veteran has a current disability that began during active service. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). October 2008 private treatment records show that the Veteran was diagnosed with right shoulder superior labrum anterior and posterior (SLAP) tear, with detachment of the labrum at the bicep anchor. The Veteran apparently had surgery to repair his shoulder in January 2009. Thus, the question becomes whether the current disability is related to service. The Veteran was afforded a VA examination in August 2016. The examiner noted the Veteran's diagnosis, and that the Veteran reported he injured his shoulder during active service. The RO denied service connection in an August 2016 rating decision. The RO indicated there was no evidence that the Veteran's injury had occurred during active service; however, a Defense Personnel Records Information Retrieval System (DPRIS) response indicated that the Veteran had active service from February 2008 to August 2008, which is when the Veteran contends he injured his shoulder. His February 2008 orders indicate active service from February 2008 to August 2008 under 32 U.S.C. § 502(f), and a service medical record indicates that the Veteran was placed on profile for a right shoulder condition in June 2008, which was during this period of active service. Given the foregoing, the Board finds the evidence to be at least in equipoise as to whether the Veteran's current right shoulder disability arose in service. Accordingly, after resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for right shoulder superior labral tear, status post sub acromial decompression, distal clavicle excision, and superior labral repair is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Geer, Vanessa V. 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.