Citation Nr: 21029284 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-57 577 DATE: May 13, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for chronic maxillary sinusitis is dismissed. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder, is granted. FINDINGS OF FACT 1. At April 2020 Board hearing, prior to promulgation of a decision on the appeal, the Veteran withdrew his claim for an increased rating for chronic maxillary sinusitis. 2. The preponderance of the evidence is in favor of a finding that the Veteran's acquired psychiatric disorder is related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a disability rating in excess of 30 percent for chronic maxillary sinusitis by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.55, 20.205. 2. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and anxiety disorder have been met. 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 duty service with the USMC from September 1985 to September 1998. This case comes before the Board of Veteran's Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Veteran had a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. A claim for an acquired psychiatric disorder includes any disorder that is reasonably encompassed by the claimant's symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the claim of service connection for PTSD is recharacterized as a claim of entitlement to service connection for any acquired psychiatric disorder, however diagnosed. Withdrawal 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 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. §§ 19.55, 20.205. Withdrawal may be made by the appellant or by his authorized representative. 38 C.F.R. §§ 19.55, 20.205. The appellant withdrew his appeal with regards to his claim for an increased rating for chronic maxillary sinusitis at the April 2020 Board hearing, after being notified of the consequences of such action. There remains no allegations of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review this appeal and it is dismissed. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). The Veteran contends that his acquired psychiatric disorder was related to his military service. Service treatment records (STRs) documented that Veteran that had some nervous trouble. Specifically, April 1995 treatment record documented that he marked "yes" for nervous trouble of any sort. However, on July 1998 separation examination he had a normal clinical evaluation. The Veteran marked "no" for frequent trouble sleeping, depression or excessive, and nervous trouble of any sort. On June 2016 private opinion, Dr. PD noted that the Veteran had been under his psychiatric care since May 2002. The Veteran was diagnosed and treated for depression, anxiety disorder, fear, insomnia, headaches, social phobia chronic loneliness, episodes of paranoia, inability to concentrate, stomach illness, panic disorder, harassment, intimidation, verbal and physical threats, flashbacks, and lack of motivation. Dr. PD noted that the he was a victim of unwelcomed physical sexual advances by a civilian male acquaintance who had performed a massage on him. The Veteran also was sensitive to an earlier sexual advance made by a fellow Marine. The Veteran was suggested into succumbing acts of copulation and fornication with a Marine. The Marine offered payment to elicit a fulfillment. The Veteran declined and became timid after the encounter in the open barracks. Dr. PD indicated that the Veteran had other verbal/physical assaults and threats by fellow Marines while deployed at the Gulf War in Saudi Arabia. The Veteran was intimidated by harm from friendly aggression than enemy fire in the conflict region. Dr. PD opined that the Veteran's PTSD from sexual-trauma, violence and verbal and physical assaults was related to his military service. The December 2014 correspondence indicated that the Veteran was a private person and did not share his military sexual trauma (MST) with family or friends. He only shared his experience with his personal psychiatrist Dr. PD. In April 2020, the Veteran testified that while in service there was a lot of bullying, physical harassment, and sexual harassment. The Veteran stated that he was verbally trapped and attacked while in a vehicle. He indicated that a Marine attacked him with a rifle. He also noted that another Marine made sexual advances towards him, verbally but not physically. He indicated that he had feelings of anxiety while still in-service and after service. He noted that he did not feel comfortable being treated at the VA for his mental health issues. He stated that he started seeking treatment from Dr. PD for his issues with anxiety. In an April 2020 statement, RR, the Veteran's brother, indicated that the Veteran was a very loving and fun person. He noted that ever since the Veteran returned from the military, he was now a different person. He indicated that the Veteran was difficult to understand. The Veteran was a private and quiet person that secluded himself from his family. He noted when he asked the Veteran what happened, the Veteran would not share. He wrote that the Veteran would get very annoyed and irritable when asked about his service. In a May 2020 statement, JR, the Veteran's brother, noted that the Veteran was his younger brother. He wrote that he noticed a change in his brother after his military service. He indicated that the Veteran kept to himself and would get offended very easily. He wrote that the Veteran was a very sociable guy growing up and now he was not. He noted that the military changed him a lot. The Board finds the June 2016 private examiner's nexus opinion to be persuasive because it adequately addressed the nature and etiology of the Veteran's acquired psychiatric disorder. Furthermore, the opinion included an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Allen v. Brown, 7 Vet. App. 439 (1995); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board assigns it probative weight. In light of this positive nexus opinion, the Board finds that the evidence is in favor of a finding that there is a casual relationship between the Veteran's acquired psychiatric disorder and service. After a review of the evidence of record, the Board finds that service connection is warranted. The Veteran has been diagnosed with depression and an anxiety disorder. The Veteran's credible statement reflects an in-service injury. Lastly, there is competent medical evidence of record that links the Veteran's current acquired psychiatric disorder to his service. There is no medical evidence to the contrary. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.