Citation Nr: 21003001 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-63 984 DATE: January 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for service-connected rectal incontinence is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), major depressive disorder, and anxiety disorder, is granted. FINDINGS OF FACT 1. During her December 2020 hearing, the Veteran withdrew her appeal seeking a rating in excess of 10 percent for service-connected rectal incontinence. 2. The Veteran’s PTSD, depression, and anxiety are due to military sexual trauma (MST) that occurred during his active service. (CONTINUED NEXT PAGE)   CONCLUSIONS OF LAW 1. The criteria for withdrawal of the Veteran’s appeal seeking a rating in excess of 10 percent for service-connected rectal incontinence have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for service connection for PTSD, depressive disorder, and anxiety disorder due to MST are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had continuous active service from October 1984 to July 1992. The Veteran testified before the undersigned Veterans Law Judge in a December 2015 videoconference Board hearing. A transcript of that hearing is of record. 1. Entitlement to a Rating in Excess of 10 Percent for Rectal Incontinence The Board of Veterans’ Appeals (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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.104(c). Withdrawal may be made by a veteran or by his or her authorized representative. 38 C.F.R. § 20.205. During her December 2020 hearing, the Veteran indicated that she did not want to continue her appeal seeking a rating in excess of 10 percent for rectal incontinence. According to the Veteran, she did not wish to pursue that issue because she was satisfied with the assigned 10 percent rating. The undersigned clarified that a decision regarding this issue would not be made but instead would be dismissed without findings on the merits in a forthcoming decision. The Veteran responded that she understood. In light of the statements from the Veteran during her December 2020 hearing, there remain no allegations of errors of fact or law for appellate consideration regarding that issue. The Board finds that the Veteran’s request to withdraw her appeal seeking a rating in excess of 10 percent for service-connected rectal incontinence was explicit, unambiguous, and done with a full understanding of the consequences. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). She clearly knew she was withdrawing her appeal as to that issue. Accordingly, the Board does not have jurisdiction to review the that issue, and it is dismissed. See 38 C.F.R. § 20.104(c). 2. Entitlement to Service Connection for PTSD, Depression, and Anxiety The Veteran contends that her current PTSD, depression, and anxiety are due to MST during active service. The Board agrees. Establishing service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). The first element of service connection is met here. An April 2020 VA examination report includes a diagnosis for PTSD based on the criteria set forth in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Her VA treatment records document diagnoses for depressive disorder and anxiety disorder. March 2017 VA treatments note a diagnosis of anxiety disorder, and August 2015 VA treatment records document a diagnosis and history of depression. With respect to the second element, the Veteran married her former husband, who she divorced after 23 years of marriage. She has consistently reported throughout the period on appeal that her marriage became controlling and abusive while she was still on active duty. She described her former husband’s abuse in her December 2020 hearing testimony and in many statements of record, including those accompanying her July 2016 notice of disagreement and December 2016 VA Form 9, substantive appeal. In a January 2020 statement, the Veteran noted that she did not report her ex-husband’s abusive behavior until many years after her separation from active service and after her divorce. The Board also notes that the Veteran became pregnant during active service, and that she reports she abandoned by the child’s father when he learned of the pregnancy. She states she experienced severe post-partum depression for which she received counseling in 1987 and 1988. In December 2015 and September 2016 statements, she described the birth as “traumatic.” In Patton v. West, 12 Vet. App. 272 (1999), the Court held that special consideration must be given to claims for service connection for PTSD based on personal assault as a result of the sensitivity and difficulty in establishing proof of the assault in such claims. Patton also held that medical evidence could be used to corroborate the Veteran’s claimed stressor in personal assault PTSD claims. 38 C.F.R. § 3.304(f)(5) also allows the Veteran to use evidence other than the service treatment records to corroborate her account of the stressor incident. This evidence includes, but is not limited to, the following: medical records, police records, statements from the Veteran’s family and friends, and changes in behavior, to include, substance abuse, a request for a transfer to another military duty assignment, and unexplained changes in social behavior. This evidence is still subject to a credibility analysis. Menegassi v. Shinseki, 638 F.3d 1379, 1382 (Fed. Cir. 2011). Here, a November 2018 statement from A.T.—a woman who served with the Veteran, remained friends with her following separation, and from whom the Veteran’s rents her home—corroborates the Veteran’s reports of abuse during active service. A.T. states she witnessed the abuse first-hand during active service and in the years following the Veteran’s separation from active service. Her statement provides details of the abuse and the Veteran’s response thereto, which included periods in which she would take her children and flee from her ex-husband. The Board concludes that the November 2018 statement is competent, credible, and highly probative evidence that corroborates the Veteran’s reports of MST. In addition, an April 2020 VA examination notes markers of MST in the Veteran’s service treatment records. The examiner noted the Veteran’s marriage and identified the following markers: poor health/eating, alcohol use, mental health treatment, relationship problems, and suicidal statements at work. She also identified the following markers of MST: pregnancy tests, miscarriage, medical care, substance abuse, episodes of depression/panic attacks/anxiety without an identifiable cause, unexplained economic or social behavior changes, erratic weight loss/gain/eating behavior, and divorce. The Board notes that the Veteran attributes an in-service miscarriage to her ex-husband’s abuse and forcibleness in an October 2018 statement in support of her claim. The examiner’s notation of markers of MST in the Veteran’s service treatment records corroborates the Veteran’s reports of abuse during active service. In light of the foregoing, the Board concludes the Veteran’s reports of MST during service are corroborated, and the second element of service connection is met. With respect to the third element, there are two VA examinations of record concluding that the Veteran’s current PTSD, depression, and anxiety are due to her MST during active service. A February 2019 contracted VA examination report includes the examiner’s conclusion that the Veteran’s PTSD—and associated symptoms of depression and anxiety—are more likely than not due to the abuse she experienced during active service. The examiner reasoned that the Veteran’s symptoms are clearly PTSD-related and arise because of the domestic violence during active service. An April 2020 VA examination report includes a similar opinion from the examiner concluding that the Veteran’s PTSD was more likely than not due to the Veteran’s MST. The examiner provided a fulsome rationale in support of that opinion, noting that the Veteran’s behavior and symptoms are consistent with MST. In light of the February 2019 and April 2020 examinations, the Board concludes that the third element of service connection is met. Given the above, the Board concludes that the preponderance of the probative evidence weighs in favor of the Veteran’s claim. Entitlement to service connection for PTSD, depression, and anxiety due to MST is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.304. In reaching this conclusion, the Board notes that the examiner responsible for the February 2019 contracted VA examination noted mental health challenges associated with the Veteran’s childhood. That finding has little bearing on the appeal. No psychological or mental health disorders were noted upon the Veteran’s entry to active service, and she is, therefore, the presumed to have been sound upon entry to active service. 38 C.F.R. § 3.304(b). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, 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.