Citation Nr: 21040761 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 19-04 084 DATE: July 6, 2021 ORDER The claim for service connection for an anxiety disorder is dismissed. The claim for service connection for bilateral hearing loss is dismissed. The claim for service connection for a right arm disability is dismissed. The claim for service connection for a left arm disability is dismissed. The claim for an increased rating greater than 10 percent for tinnitus is dismissed. The claim for an earlier effective date for the grant of service connection for the tinnitus is dismissed. Service connection for a left knee disability is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. On July 2019, prior to the promulgation of a decision in this appeal, the Board received notification from the Veteran during his hearing affirmed on record, that he was withdrawing his claims of entitlement to service connection for an anxiety disorder, bilateral hearing loss, and right and left arm disabilities, as well as for an increased rating for his tinnitus and earlier effective date for the grant of service connection for his tinnitus. 2. His left knee disability was incurred in the line of duty during a period of active duty for training. CONCLUSIONS OF LAW 1. The criteria are met for withdrawal of the appeal concerning the claims of entitlement to service connection for anxiety disorder, bilateral hearing loss, and right and left arm disabilities, as well as for an increased rating for tinnitus and earlier effective date for the grant of service connection for tinnitus. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria are met for entitlement to service connection for the left knee disability. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1979 to April 1980 and additional service in the Army National Guard until 2012, including some of it that is qualifying. Withdrawal The Board may dismiss any appeal that 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.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 by the appellant or by his or her authorized representative. Id. In this case at hand, the appellant, through his authorized representative, has withdrawn the appeals as concerning the claims of entitlement to service connection for an anxiety disorder, bilateral hearing loss, and right and left arm disabilities, as well as for an increased rating for tinnitus and earlier effective date for the grant of service connection for tinnitus. Hence, there remain no allegations of errors of fact or law for appellate consideration concerning these claims. The Veteran's request during his July 2019 hearing before this Board to withdraw these claims was done explicitly, unambiguously, and with a full understanding of the consequences of this action. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011); see also Acree v. O'Rourke, 891 F.3d 1009, 1014 (Fed. Cir. 2018). At the hearing, he affirmed that he no longer wanted to pursue the appeal of these claims and that he only wanted to continue pursuing, instead, his claims for service connection for right and left knee disabilities. He indicated that he understood that these claims he was withdrawing consequently would no longer be on appeal. Accordingly, the Board does not have jurisdiction to review these claims and they are summarily dismissed. Service Connection Service connection for a left knee disability is granted. The Veteran contends that he injured his left knee while completing physical training (PT) during an annual training weekend in the Army National Guard in 2004. He contends that, following this injury, his left knee became worse, eventually necessitating surgery in 2016. Active military, naval, or air service not only includes any period of active duty (AD) but also active duty for training (ACDUTRA) during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury though not also disease incurred in or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident during such training. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). This typically refers to the two weeks of annual training which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). This refers to the 12 four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. National Guard duty is distinguishable from other Reserve service, however, in that a member of the National Guard may be called to duty by the Governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times . . . serve solely as members of the State militia under the command of a state governor." See Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316 , 502, 503, 504, or 505. Id. Turning now to the relevant evidence, the Veteran has a confirmed diagnosis of a left knee disability, so there is no disputing he has this claimed disability. The service treatment records (STRs) also document left knee pain and appear to also document a 2004 injury the Veteran reported sustained and cites as reason for his current left knee disability. Specifically, a record that appears to be dated in November 2004 documents that his left knee was injured, with the assessment of possible left knee medial tendonitis. These records also show that, in January 2006, he reported injuring his left knee a year and half earlier while on annual training, and this report aligns with the referenced treatment record. The Veteran's service personnel records (SPRs) indicate he completed annual training in 2004, thus, at least seemingly during the time he sustained that injury. Given the Veteran's competent and credible statements that he injured his left knee while completing his duties during annual training in 2004, and that his statements concerning this are supported by his STRs and SPRs, the Board finds that the weight of the evidence is in favor of his claim certainly at least in equipoise, and therefore service connection for his left knee disability is granted. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his right knee disability was caused or is aggravated by his left knee disability, in that he must bear more weight on his right knee than on his left knee to compensate. It is unclear from the record whether he has a right knee diagnosis or functional impairment of earning capacity involving this other knee that for all intents and purposes could be considered a ratable disability, even absent an underlying diagnosis. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). But, even if confirmed he does, it also is unclear whether any right knee disability or ratable equivalent is etiologically related to his now service-connected left knee disability. Thus, a VA examination and opinion are needed to assist in making these important determinations. Accordingly, this remaining claim is REMANDED for the following action: Schedule the Veteran for a VA examination for his additionally claimed right knee disability. The examiner must review the claims file, including a complete copy of this decision and remand. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms causing functional impairment of his earning capacity, then the examiner should for all intents and purposes consider them a ratable "disability" for the purpose of providing the medical opinion being requested. If it is confirmed there is a right knee disability or something akin to it (functional equivalent), the examiner is asked to also indicate whether it was as likely as not caused OR is aggravated by the left knee disability that has been determined to be service connected. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals R. Erdheim, Attorney for the Board Department of Veterans Affairs 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.