Citation Nr: 22048867 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 18-41 249 DATE: August 26, 2022 ORDER Entitlement to service connection for bilateral hearing loss is dismissed. REMANDED Entitlement to service connection for a left shoulder condition is remanded. FINDING OF FACT During the April 2022 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran expressed his desire to withdraw his appeal regarding bilateral hearing loss. CONCLUSION OF LAW The criteria for withdrawal of bilateral hearing loss have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1992 to December 1994 and from January 2003 to August 2003. Withdrawal 1. Entitlement to service connection for bilateral hearing loss is dismissed. A claim may be withdrawn at any time before the Board promulgates a decision. 38 C.F.R. § 19.50. Withdrawal may be made by the appellant or by their authorized representative. 38 C.F.R. § 19.50. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing and meet certain requirements set forth by regulation. They must include the name of the appellant, the applicable file number, and a statement that the appeal is being withdrawn. 38 C.F.R. § 19.50. During the April 2022 Board hearing, the Veteran stated on the record that he wished to withdraw his appeals as to the claim of entitlement to service connection for bilateral hearing loss. The Veteran clearly expressed unambiguous intent to withdraw his appeal as to such issues. During the Board hearing, the undersigned VLJ explained the consequences of withdrawing the appeal on the record. Additionally, the Veteran expressed that he understood the consequences of his withdrawal. The undersigned VLJ confirmed that request on the record. See April 2022 Board Hearing Transcript. As such, the Board finds that the Veteran's withdrawal was explicit, unambiguous, and done with the full understanding of the consequences of withdrawing his claim. See Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45 (2011). As the Veteran has withdrawn his appeal as to this issue, there remains no allegations of error of fact or law for appellate consideration. Accordingly, the claim is dismissed. See 38 U.S.C. § 7105; 38 C.F.R. § 19.50. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder condition is remanded. The Board finds that remand is necessary to determine the nature and etiology of the Veteran's claimed left shoulder condition. The Veteran contends that his left shoulder condition is due to injuries sustained in service. Specifically, in November 2006 the Veteran was prepping trailers for storage, as he was lowering the wall on one of them, he slipped on ice due to the heavy nature of the trailer as it was full of snow. The Veteran then re-injured his left shoulder in the spring or summer of 2007 while using an impact on a seized bolt. See April 2022 Board Videoconference Hearing. The Veteran has submitted a buddy statement that recounts the events of the Veteran's left shoulder injury. The Veteran's buddy reports that in November 2006, that he and the Veteran were prepping trailer beds for turn in. As the trailers were covered in snow and ice it took significant force to lower the walls, which caused the veteran to slip and catch himself. The Veteran's buddy then reports the Veteran informed him that he injured his left shoulder and did not go to sick call or report the incident. See November 2017 Buddy Lay Statement; June 2018 Buddy Lay Statement; April 2022 Buddy Lay Statement. The Board finds that laypersons are competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the buddy lay statement credible. As one of the threshold questions is whether the Veteran experienced an injury while on active duty is still in question, the Board finds a remand is necessary to obtain the dates the Veteran was on active duty, ACDUTRA, and/or INACDUTRA. The Board notes that the U.S. Department of Army, Records Management and Declassification Agency (RMDA) has realigned its records research activities and the Joint Services Record Research Center (JSRRC) no longer exists. Although the JSRRC no longer exists, the military records themselves previously researched by the JSRRC remain available for research by VA through the appropriate official source. See 86 Fed. Reg. 15413 (March 23, 2021). As such, the Board will direct the AOJ to use their new internal process for researching records and then, if unsuccessful, to research the records through any other process now available to access the appropriate official sources. Additionally, in May 2017 the Veteran presented to a VA shoulder and arm conditions examination where the examiner did not diagnose the Veteran's left shoulder past noting shoulder strain and superior labral anterior-posterior lesion (SLAP) tear and noting two past surgeries. The examiner did not provide an opinion as to nexus as they noted it was outside the scope of the examination as the Veteran had a claim for a right shoulder condition. However, the Board notes the Veteran had also submitted a valid VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits dated in September 2016 where he claimed right as well as a left shoulder condition. See September 2016 VA Form 21-526EZ. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Given the examination did not address whether the Veteran's current left shoulder disability was related to service, and where the AOJ did not send the examination back to the examiner to provide such an opinion, violates the duty to assist. Therefore, the Veteran must be scheduled for an appropriate VA examination to determine the etiology of his claimed disorder. The matter is REMANDED for the following action: 1. The AOJ is asked to conduct the following development, contact the appropriate service department offices, to verify the specific dates when the Veteran was on active duty, ACDUTRA, and/or INACDUTRA. 2. After completing the above, the RO should obtain a VA examination, from a qualified examiner, as to the nature and etiology of the Veteran's left shoulder condition; specifically a) opine whether it is at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) the left shoulder condition had its onset in service or is otherwise related to military service, to include discussion of the lay statements provided by Veteran indicating symptomatology. b) opine whether it is at least as likely as not (the favorable and unfavorable evidence is in approximate balance or is nearly equal) that the Veteran's left shoulder underwent an incremental increase (aggravated), regardless of permanence, by his service-connected right shoulder. The term incremental increase in disability means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any incremental increase in disability need not be permanent. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion (e.g., etiology) as it is to find against the conclusion. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development action is incomplete, the appropriate corrective action must be implemented. If any report or opinion does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, Associate 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.