Citation Nr: 18157536 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 16-47 654 DATE: December 13, 2018 ORDER Service connection for prostate disorder is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for an acquired psychiatric disorder (other than PTSD) to include sleep disturbance and depressive disorder is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that prostate disorder had its onset in service or is otherwise related to active service. 2. The preponderance of the evidence is against that the Veteran has a confirmed diagnosis of PTSD due to an in-service event including MST. 3. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder, to include sleep disturbance and depression, that had its onset in service or is otherwise related to active service. CONCLUSIONS OF LAW 1. The criteria for service connection for prostate disorder are not met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for PTSD are not met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304(f). 3. The criteria for service connection for an acquired psychiatric disorder to include sleep disturbance and depressive disorder are not met. 38 U.S.C. §§ 1101, 1131, 5107(b); 38 C.F.R. §§ 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by active duty service. 38 U.S.C. § 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires: (1) evidence of a current disability; (2) evidence of in service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a), (d). 1. Service connection for prostatitis. The Veteran has no specific contentions regarding why service connection is warranted for prostatitis. The Board concludes the preponderance of the evidence is against finding that any current prostate disorder had its onset in service or is otherwise related to active service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Although the Veteran’s February 1979 enlistment examination shows he may have had a kidney stone prior to entering active duty service, he was found fit for enlistment. No prostate defect was noted on service entry. Therefore, the Veteran is presumed to have been in sound condition on service entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b) (A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, and only such conditions as are recorded in examination reports are to be considered as noted). Furthermore, this presumption is not rebutted. 38 U.S.C. § 1153; Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004). STRs reflect no complaints, treatment, or diagnosis of prostate disorder during active service. A March 1983 service separation examination shows normal clinical evaluation of all systems, including the genitourinary system, and that the Veteran denied any health problems. June 1995 VA medical records show the Veteran’s complaints of frequency of urination, urinary tract infections, and urinary tract problems arose in 1992, almost ten years after service. He denied prior prostate abnormality. November 2009 and September 2012 VA treatment notes reflect that the Veteran reported taking medication at night for his prostate. The Veteran reports that his prostate problems began during service and are related to active service. He is competent to report his symptoms and treatment. However, he is not competent to provide a retrospective medical diagnosis of prostatitis or other prostate disorder in service, or to formulate a medical opinion linking any current symptoms/diagnosis to service as he lacks the requisite medical expertise and training; moreover, the etiology of prostatitis first shown many years after service is not susceptible to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, to the extent that the Veteran reports having onset of prostatitis in service and since service, the Board finds that he is not credible in view of the normal clinical findings at service separation coupled with the many years intervening service and the first documented prostate complaints and the fact that the Veteran did not report prostate disorder on his original VA disability claim filed in January 1993. Notably, the Veteran reported on his claim for prostatitis that the condition began in 1993, a decade after service discharge. The Board assigns greater probative value to the STRs, which reflect no complaints or findings for prostate disorder along with the Veteran’s denial of genitourinary problems on service separation. This evidence is highly probative because it reflects the state of the Veteran’s wellness contemporaneous with his military service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Also, the Board assigns greater probative value to the many years intervening service and the first documented findings or complaints of genitourinary problems. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006); see also Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom., Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the Veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact). The Veteran has not provided a favorable medical opinion to weigh in this matter. On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 2. Service connection for PTSD. The Veteran contends that he has PTSD due to in-service military sexual trauma (MST). The Veteran, who is African American, asserts that, during active service, he was sexually harassed by a white female superior officer who retaliated against him when he refused her sexual advances and that her retaliation ruined his military career. In this regard, he reported that he was falsely accused and punished for disobeying a lawful order. The Board finds the preponderance of the evidence is against finding that the Veteran has a confirmed diagnosis of PTSD due to an in-service event including MST as alleged. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. The regulations contain special provisions addressing PTSD. “Service connection for post traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in service stressor; and credible supporting evidence that the claimed in service stressor occurred.” 38 C.F.R. § 4.125(a). In addition, there are special provisions relating to PTSD claims based on an in service personal assault (including MST). The regulations recognize that sexual assaults are often unreported. Therefore, when a PTSD claim is based on an in service personal assault, the regulations authorize the use of evidence from sources other than a Veteran’s service records to corroborate a Veteran’s account of the stressor incident. 38 C.F.R. § 3.304(f)(5). In this case, the Veteran has not specifically contended a personal assault on his person; but rather, he contends personal harassment to include false accusations, punishment, and a ruined military career as the “stressor” event in this case. See 38 C.F.R. § 3.304(f)(5). VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 38 C.F.R. § 3.304(f)(5). Initially, the Board observes that the evidence shows the Veteran is not a combat veteran. Therefore, he is not entitled to the combat related presumptions. 38 C.F.R. § 3.304(d). First, the Board finds that the Veteran’s report of in-service trauma, as described, is not borne out by the record. The Veteran’s December 1981 and January 1982 military personnel records (MPRs) show that he was given a negative evaluation and a punishment by the female superior he has identified as his harasser. However, the Veteran received numerous positive commendations by other superior officers and an honorable discharge after the negative experience. Thus, the credibility of his assertion that the female officer’s “retaliation” (even if true) ruined his career is not supported by record. Also, an October 2005 VA psychiatric note indicates the Veteran denied experiencing military trauma, including MST. An April 2013 VA medical record indicates that, in addition to claiming sexual harassment by a female officer while in service, the Veteran also alleged he was attacked in his bunk one night during basic training, and punished for fighting after the incident. This is the only record in the claims file that mentions the second incident. Even were the Board to accept the validity of the stressor events reported by the Veteran in this case, a medical professional has not indicated that he has any mental disorder related to either event. Second, the Board further finds that the evidentiary record shows that the Veteran has not been diagnosed with PTSD. A September 2006 VA medical record reports the Veteran received an initial positive screening for PTSD, with one symptom, listed as social withdrawal. However, the same record also indicates there was no history of a traumatic event in service. A November 2009 VA medical record shows a diagnosis of depression NOS, not PTSD, along with former polysubstance abuse. A June 2013 private psychiatric examination report diagnosed the Veteran with cognitive disorder NOS (in decline) (adjustment disorder with mixed features including paranoia). The examiner noted that, although the Veteran complained of symptoms of PTSD, the examiner could not identify an in service stressor. The Veteran did not reveal an MST stressor, instead indicating he had been treated unfairly in service. The examiner noted a decline in intelligence from an earlier period. Low scores on memory tests suggested deficits in memory function, both verbal and visual, which the examiner described as “very poor.” The clinical profile showed very substantial indications for depression and paranoia. Per the examiner, the picture was of worsening paranoia over time. A July 2013 Social Security Administration (SSA) document shows the Veteran was granted disability benefits for severe mental impairments including cognitive disorder and adjustment disorder with paranoia. In this case, the medical evidence of record shows no diagnosis for PTSD in accordance with 38 C.F.R. § 4.125(a) regardless of whether the Veteran experienced a stressor event sufficient to support a diagnosis for PTSD. The Veteran is not competent to diagnosis himself as having PTSD as this is a complex diagnosis beyond the ken of a layman. Jandreau, supra. Therefore, his medical opinion in this regard has no probative value. The Board assigns greater probative value to the normal service separation examination and the post service medical evidence showing that, while the Veteran has mental health problems, he has not met the criteria for a diagnosis of PTSD. Consequently, the preponderance of the evidence is against that the Veteran has a confirmed diagnosis of PTSD due to an in-service event including MST Accordingly, the claim for PTSD is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). 3. Service connection for an acquired psychiatric disorder to include sleep disturbance and depressive disorder. The Veteran contends that he has sleep disturbances and that he developed depression as a result of active duty service. He argues that there was a cover-up by the United States Air Force to leave out his statements about depression to a doctor. The Board finds, although an acquired psychiatric disability is shown, the preponderance of the evidence is against finding that his acquired psychiatric disorder had its onset in service or is otherwise related to active service. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304. Depressive disorder and other abnormal psychiatric findings are first shown many years after service discharge and have not been linked to any in-service injury, event, or disease. STRs reflect no complaints, findings, or treatment of sleep problems, depression, or other mental health problems. A March 1993 service separation examination reflects normal clinical evaluation of the psychiatric system. The Veteran denied a history of frequent trouble falling asleep, depression or excessive worry, and nervous trouble. The Veteran characterized his health as “Excellent.” The Veteran’s MPRs reflect that the Veteran was a high achiever who received many positive commendations while in service. A January 1981 MPR shows that the Veteran received an award for his dress and appearance and was “Airman of the Month” in his squadron. A March 1983 service separation examination shows normal clinical evaluation of all systems, including psychiatric, and that the Veteran denied any health problems. A March 2005 VA medical record shows the Veteran complained of having difficulty sleeping during the day because he worked nights, and that he asked for sleep medication. September 2006 VA medical record indicates that the Veteran stated he was sleeping well. VA and private medical records reflect that the Veteran’s depression had its onset over ten years after leaving service. He has been treated for mild depression intermittently since1995. The Veteran also has been diagnosed with other mental health disorders unrelated to depression. June 1995 and July 1995 VA medical records show the Veteran was diagnosed with depression. A July 1998 private medical record shows the Veteran diagnosed with polysubstance abuse with personality disorder. An October 2005 VA psychiatric note indicates the Veteran denied any significant depressed mood. He rated his depression 4 out 10. He stated he no longer took medication for depression. A September 2006 VA medical record shows the Veteran had taken himself off medication for depression. A November 2009 VA medical record shows the Veteran was diagnosed with depression. He complained of depression, sleeping too much, and other symptoms. A September 2012 VA medical record shows the Veteran was sleeping okay, had a good appetite, and was not taking medication for sleep disturbances. A June 2013 private psychiatric evaluation reflects a diagnosis for cognitive disorder NOS (in decline) (adjustment disorder with mixed features including paranoia), with very substantial indications for depression and paranoia. A July 2013 SSA document shows the Veteran was granted disability benefits for severe mental impairments including cognitive disorder and adjustment disorder with paranoia. The medical evidence shows psychiatric disability that had its onset long after the Veteran’s active service. It further shows no indication that his mental disorders are related to active service. The Board has considered the Veteran’s statements. He is competent to report his symptoms. However, the Veteran is not competent to diagnosis himself as having a mental disorder in service or to link any currently shown disorder to his active service as these are complex determinations that require specialized training and expertise, and it is simply beyond the ken of a layman. Jandreau, supra. Therefore, his medical opinion has no probative value. The Veteran has not provided a favorable medical opinion to weigh in this matter. The Board assigns greater probative value to the STRs along with the service separation examination. This evidence is highly probative because it reflects the state of the Veteran’s wellness contemporaneous with his military service. See Curry, supra. Also, the Board assigns greater probative value to the many years intervening service and the first documented findings or complaints of depression. Maxson, supra. On balance, the weight of the evidence is against the claim. (Continued on the next page)   Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel