Citation Nr: 21008542 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-59 937 DATE: February 17, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his acquired psychiatric disorder began during active service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had two periods of active duty service, from July 1985 to July 1989, and from July 1989 to July 1991. He served at Guantanamo Bay, Cuba in his second term. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood. The Veteran asserts that his currently diagnosed adjustment disorder with depressed mood onset in service. Specifically, he contends that he has felt his current symptoms ever since he received disparate treatment following his promotion to gunner’s mate. The Board concludes that the Veteran has a current diagnosis of adjustment disorder with depressed mood that began during active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). First, the Veteran’s service records indicate psychological problems during service. Specifically, after an initial enlistment examination report with no psychological problems noted, the Veteran received nonjudicial punishments in 1986 and 1988 for violent and insubordinate behavior. After a separation examination with no psychological notations in July 1989, the Veteran was recommended for reenlistment, and reenlisted. Indeed, during his second period of service, the Veteran received a largely successful performance evaluation in May 1990. However, in January 1991, the Veteran was confined to quarters for 60 days, and had his pay and rank reduced after a domestic assault. A medical record from January 1991 reports that since the assault and the subsequent restriction to barracks, the Veteran reported frustration, depressive mood, lowered concentration, and diminished sleep. A diagnosis of adjustment disorder was provided. Then, in another, subsequent, January 1991 record, the Veteran reported difficulty with temper control, even when sober. Finally after a March 1991 administrative proceeding in which several witnesses testified as to the January domestic violence incident and the Veteran’s subsequent behavior and treatment, the Veteran was recommended for administrative discharge. This recommendation was based on a pattern of in-service violent behavior, to include disrespectful language towards a chief warrant officer, and wrongful communication of a threat. The Veteran’s January 2021 hearing testimony elaborates on this pattern. Specifically, the Veteran testified that his behavior was rooted in the frustration and depression that came with the discrimination he faced after his promotion to gunner’s mate and being unable to have it addressed for fear of demotion. Accordingly, the Board finds, by equipoise evidence showing the onset of an in-service disorder Second, the Veteran’s treatment records, including his March 2013 C&P examination and a November 2019 psychiatry social worker note, show a current diagnosis of depressive disorder NOS and adjustment disorder with depressed mood. Third, while the C&P examiner and an October 2016 ACE examiner opined that the Veteran’s current diagnosis is less likely than not related to his treatment during active service, they did so without regard to the Veteran’s competent and credible statements of continuity of symptomatology since service. Indeed, the Veteran’s punishments in 1986, 1988, and 1991, and his January 1991, July 1994, and December 1994 treatment for anxiety and depression, taken with his credible and competent hearing testimony, show continuity of psychiatric symptomatology. The Veteran, as a lay person, is indeed competent to report observable symptomatology of an injury, to include subjective feelings of constant stress and depression. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). Moreover, the Veteran credibly attests that he did not have health insurance and was not aware of his rights to seek treatment at a VA treatment center, which explains why he did not seek treatment for three years after separation. The Board notes the absence of treatment from 1994 to 2006, as well as the Veteran’s January 1992 application for several disabilities, yet excluding a psychiatric disability. In the Board’s view, the circumstances surrounding the onset of the Veteran’s disability, to include the threats to his career, explain the delay in claiming service connection for his adjustment disorder. Accordingly, continuity of symptomatology is warranted based on the Veteran’s competent and credible description of his symptoms. The probative value of the Veteran’s 2001 and 2003 negative depression screens, which could have resulted from a misunderstanding by the Veteran, is outweighed by that of the Veteran’s direct statements. The VA and ACE examiners, in providing negative nexus opinions, placed undue emphasis on the Veteran’s post-service experiences. While these incidents could indeed have exacerbated the Veteran’s existing depressive symptoms, the Board finds that the Veteran’s competent and credible reports of consistent symptoms since service are not negated. The Board finds that the Veteran’s competent and credible statements of the onset of depressive symptoms place his appeal at least in equipoise. Accordingly, the Board resolves reasonable doubt in the Veteran’s favor and grants service connection for an acquired psychiatric disorder, diagnosed as adjustment disorder with depressed mood. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. 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