Citation Nr: 21039694 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 10-42 086 DATE: July 1, 2021 ORDER Service connection for a cervical neck disability and bilateral hip disability have been withdrawn and are dismissed. Service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder, is granted. FINDINGS OF FACT 1. On June 14, 2021, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran, through her authorized attorney representative, that a withdrawal of claims of service connection for cervical neck and bilateral hip disabilities is requested. 2. The competent and probative evidence tends to show that the Veteran's current PTSD and bipolar disorder are related to her military sexual assault (MST) during active duty. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the claims of service connection for cervical neck and bilateral hip disabilities by the Veteran through her representative are met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 19.55. 2. The criteria for service connection for PTSD and bipolar disorder are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from August 1980 to July 1983. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were last before the Board in December 2019 and were remanded for additional development, to include obtaining private treatment records and additional examinations. These matters have now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran was scheduled for examinations and private treatment records were obtained. 1. Entitlement to service connection for a cervical neck disability. 2. Entitlement to service connection for a bilateral hip disability. 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 An appeal may be withdrawn in writing as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In a June 2021 written statement, the Veteran, through her attorney representative, stated that she desired to formally withdraw her appeal for her claims for service connection for cervical neck and bilateral hip disabilities. See Hembree v. Wilkie, 33 Vet. App. 1, 6-7 (2020) (holding that, unlike an oral withdraw at a hearing, a written withdrawal request does not require full understanding of the consequences of such action on the part of the claimant, but needs to comply with the applicable regulation). In the present case, the Veteran has withdrawn her appeal for the claims for service connection for cervical neck and bilateral hip disabilities as the written correspondence include the Veteran's name, file number, and listed the specific issues per 38 C.F.R. § 19.55(b). Hence, there remain no allegations of errors of fact or law for appellate consideration as to that matter. Accordingly, the Board does not have jurisdiction to review the above issues, and they are 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. §§ 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must generally be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires a medical diagnosis conforming to the requirements of section 4.125(a), an in-service stressor accompanied by credible and supporting evidence that the stressor claimed to be the cause of the disorder occurred in service, and established medical evidence connecting the current disability to the stressor. 38 C.F.R. § 3.304(f); see also 38 C.F.R. § 4.125(a); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If a stressor claimed by the Veteran is related to her fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). In claims with stressors based on personal assault, evidence from various sources may be used to corroborate the stressor, including evidence of behavioral changes following the claimed assault. 38 C.F.R. § 3.304(f)(5); see also Menegassi v. Shinseki, 638 F.3d 1379, 1383 (Fed. Cir. 2011) (stating that medical opinion evidence can be used to corroborate the claimed stressor in personal assault cases). Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. 38 C.F.R. § 3.304(f)(5). As discussed below, the Veteran's service treatment records served to corroborate her reported stressor. The Veteran is competent to report symptoms and experiences observable by her senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). 3. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder. The Veteran asserts service connection for an acquired psychiatric disorder, to include PTSD and bipolar disorder. After reviewing the relevant lay and medical evidence, the Board concludes that the Veteran has current diagnoses of PTSD and bipolar disorder, and that the evidence tends to show they are related to her MST during active duty. 38 U.S.C. §§ 1131, 5107(b). The Veteran has diagnoses of PTSD and bipolar disorder as made by a private psychiatrist in March 2021. As such, the first element of service connection is met. Additionally, the Board finds that her service treatment records contain evidence consistent with an in-service stressor and/or markers of a MST. For example, she had lower abdominal pain in May 1981 that continued for several weeks. She also requested pregnancy tests. She reported nervousness and insomnia. She acknowledged a prior sexual encounter during this time period. The Board finds her service treatment records competently and credibly show a marker that tends to corroborate an in-service assault as she reported. The parties, in an August 2018 Joint Motion for Remand, signed by the Court in a September 2018 Order, previously found the 2016 examination and opinion to be inadequate. A September 2020 opinion provided a negative nexus opinion for the Veteran's bipolar disorder. The examiner stated that her bipolar disorder was not related or aggravated by service-connected back disorder. The Board finds 2020 opinion does not have probative value for direct service connection due to MST for her diagnosed PTSD as the examiner only addressed secondary service connection. The Veteran provided a positive nexus opinion from a private psychiatrist. The examiner provided a detailed medical history of the Veteran and the progression of her disabilities. He performed two interviews with the Veteran. She reported her in-service military sexual trauma from May 1981. The psychiatrist reported that the Veteran's statements regarding her sexual assault were consistent throughout her clinical history and found that she was a credible historian. He reported that it is common for individuals to be hesitant in detailing sexual trauma. Her PTSD manifested following her military sexual trauma. The examiner concluded the Veteran's military sexual trauma caused her PTSD, which in turn, aggravated her bipolar disorder. The Board finds this opinion to have great probative value. The examiner performed two lengthy interviews with the Veteran. He thoroughly reviewed the Veteran's history and detailed relevant evidence. Additionally, he supported his diagnoses as well as his nexus opinions with appropriate rationale and evidence of record. As such, the Board finds this opinion to have the most probative weight for the Veteran's claim. After review of the competent and probative evidence, the Board finds that when resolving reasonable doubt in favor of the Veteran, the evidence tends to show the Veteran suffered MST during service which has caused her PTSD which aggravates her bipolar disorder. In this regard, the Board has found her service treatment records credibly show MST markers. Additionally, there is no negative direct service connection opinion that the Board has found to have probative value. The private positive nexus opinion has been given great probative weight. As such, the Board finds that her PTSD, which aggravates her bipolar disorder, is caused by her MST. Therefore, service connection for PTSD and bipolar disorder is warranted. 38 C.F.R. § 3.102, 3.303, 3.304. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.