Citation Nr: 21002468 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-21 748 DATE: January 13, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s diagnosed PTSD is at least as likely as not related to witnessing a tank crush a fellow soldier to death during training in May 1981. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. U.S.C. §§ 101(24), 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty for training (ACDUTRA) in the U.S. Army from October 1979 to March 1980. He also had additional periods of unverified active service, to include multiple periods of ACDUTRA, inactive duty training (INACDUTRA), and temporary duty (TDY), in the U.S. Army National Guard (ANG). The Veteran’s service personnel records indicate that he served for more than 23 years in the ANG. This case comes to the Board of Veterans’ Appeals (Board) on appeal of a January 2012 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. A June 2019 Board decision reopened the Veteran’s claim for service connection for PTSD and denied the claim on the merits. The June 2019 Board decision also denied the Veteran’s claim for an acquired psychiatric disability other than PTSD, to include depression and anxiety. The Veteran appealed only the Board’s denial of entitlement to service connection for PTSD to the Court of Appeals for Veterans Claims (Court). In a June 2020 memorandum decision, the Court vacated the Board’s denial of entitlement to service connection for PTSD and remanded the appeal for readjudication. A videoconference Board hearing was held in August 2016 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Veteran contends that he incurred PTSD during active service, specifically as a result of in-service stressors involving the deaths of fellow soldiers in his ANG unit. The Veteran has stated he witnessed a fellow soldier in a tank accident in May 1981. The Veteran stated he witnessed a fellow soldier experience a heart attack. Further, the Veteran reported witnessing a fatal injury during training in 1992 or 1993 involving a white phosphorous explosion. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Generally, entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). Under 38 U.S.C. § 101(24) “active military, naval, or air service includes active duty, any period of active duty service for training [ACDUTRA] during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training [INACDUTRA] which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.” ACDUTRA means full-time training duty, where the service member is available for duty around-the-clock performed by the Reserve components. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6 (c). Annual two-week training is an example of ACDUTRA. Thus, service connection is available for disease or injury incurred in or aggravated sustained while the Veteran was on ACDUTRA. The Board concludes that, resolving reasonable doubt in the Veteran’s favor, his diagnosed PTSD is at least as likely as not related to witnessing the death of B.B. who died in a tank accident in May 1981 during training. U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (f). As an initial matter, the Board finds that the evidence is at least in equipoise that the Veteran was on active duty training when he witnessed the death of B.B. being crushed by a tank in May 1981. The Veteran asserts that the incident occurred in May 1981, while serving during annual training. This tank accident killing B.B. in May 1981 was confirmed by the defense personnel records information retrieval system (DPRIS). The Veteran’s retirement points summary reflect that the Veteran had 30 active duty points between August 1980 to August 1981. This evidence is contemporaneous with the incident reported by the Veteran. In an August 2016 statement the Veteran indicated he witnessed B.B being crushed by a tank. In February 2017 buddy statements, R.S., R.C., and W.B., fellow soldiers in the Veteran’s unit, corroborated the Veteran’s account confirming that during annual training they were with the Veteran and witnessed the death of B.B. being crushed by a tank. This evidence, along with the Veteran’s 30 active duty points between August 1980 to August 1981, tends to corroborate that the incident described by the Veteran occurred during his annual training and involved his unit. Although VA has attempted to corroborate the Veteran’s incident on active duty training, VA made a formal finding of lack of information to corroborate the Veteran’s claimed stressors in January 2017. VA found that the it had insufficient information to attempt to verify Veteran’s stressors through the U.S. Army and Joint Services Records Research Center (JSRRC), the Marines Research Center, and/or the National Archives and Records Administration (NARA). It found further efforts to obtain information would be futile. Notwithstanding, the Board finds that the Veteran’s testimony along with the buddy statements, coupled with the military personnel record showing the Veteran had 30 active duty points between August 1980 to August 1981, are sufficient to establish that he was involved in the event as alleged. It is noted that his sworn testimony was both competent and credible on matters within his knowledge. This evidence is probative and weighs in favor of the claim. Additionally, the record establishes that the Veteran has been diagnosed with PTSD related to this in-service incident. A December 2016 VA examination shows a diagnosis for PTSD and a VA treating psychologist expressly linked his diagnosed PTSD with him witnessing the death of a platoon member who was crushed by a tank. The VA psychologist reasoned that the Veteran was treated for depression following the incident and that he screened positive for PTSD. The Veteran continues to report symptoms consistent with a diagnosis of PTSD. The evidence of record sufficiently establishes that the Veteran was involved in witnessing the death of B.B. being crushed by a tank. As to whether his PTSD is related to that event, the Board finds the evidence is at least in equipoise as discussed and explained above. (Continued on the next page)   Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.