Citation Nr: 21061533 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 16-11 486A DATE: October 4, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran had a current disability of PTSD. 2. The Veteran experienced an in-service stressor in 1974 when he witnessed dead servicemembers in a tunnel who were killed by hostile military activity. 3. The PTSD had its onset in service and is etiologically related to the in-service stressor. CONCLUSION OF LAW Resolving reasonable doubt in favor of the appellant, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1973 to August 1976. This matter is on appeal from a December 2012 rating decision issued by the Regional Office (RO). The Veteran testified in Atlanta, Georgia, at a Board videoconference hearing in March 2019 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. This matter was first brought before the Board in December 2019. The Board denied service connection for PTSD, finding that the Veteran did not experience an in-service PTSD stressor. The Veteran appealed the December 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC). According to a death certificate of record, the Veteran died in August 2020. A September 2020 notification letter indicates that the Veteran's surviving spouse was substituted as the claimant to continue the pending appeal to completion. A May 2021 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties. The Veteran previously reported that the PTSD stressor occurred when he was recovering body parts from a tunnel and seeing dead servicemembers while he was stationed in Korea. In the December 2019 Board decision, the Board found that a December 2012 report from the Defense Personnel Records Information Retrieval System (DPRIS) indicated that a November 20, 1974 explosion killed and injured servicemembers, but that the Veteran's battalion was inactive at that time. The parties to the JMPR agreed that, despite the Board's findings, the record contained evidence that the Veteran's organization and station was listed as "HHB 2/71st ADA USARPAC-KOREA" in 1974. Other records indicate that the Veteran was in Korea at the time of the explosion in 1974. See Military Personnel Records (indicating that the Veteran was in Korea from February 1974 to February 1975). The parties also agreed that the Veteran's claim that he both saw bodies being recovered from a tunnel and participated in the recovery of the bodies are not factually inconsistent. Legal Authority for Service Connection Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125 (a)), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304 (f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.304 (f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. Under 38 C.F.R. § 3.304(f), PTSD stressors are listed as follows: (1) a diagnosis of posttraumatic stress disorder during service and the claimed stressor is related to that service, (2) if the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, (3) if the stressor is related to the veteran's fear of hostile military or terrorist activity, (4) if the veteran was a prisoner-of-war under the provisions of§ 3.1(y)of this part and the claimed stressor is related to that prisoner-of-war experience, or (5) if the PTSD is based on in-service personal assault. In the instant case, the Veteran was not diagnosed with PTSD during service, did not engage in combat, was not a prisoner of war, did not claim that an in-service personal assault occurred, and none of the reported events relate to a fear of hostile military or terrorist activity. In this case, the Board notes that the Veteran was not diagnosed with PTSD in service, did not engage in combat, was not a prisoner of war, and the stressors were not based on an in-service personal assault. As such, the Board will analyze the claimed stressors under 38 C.F.R. § 3.304(f)(3), fear of hostile military or terrorist activity. "Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304 (f). Under 38 C.F.R. § 3.304 (f), a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) a stressor claimed by a veteran is related to his or her fear of hostile military or terrorist activity; (2) the claimed stressor is consistent with the places, types, and circumstances of the veteran's service; and (3) 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 posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary. 38 C.F.R. § 3.304 (f)(3). According to the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5), a PTSD stressor is established when the veteran was exposed to death, threatened death, actual or threatened serious injury, or actual or threatened sexual violence, in the following ways: (1) direct exposure, (2) witnessing the trauma, (3) learning that a relative or close friend was exposed to trauma, or (4) indirect exposure to aversive details of the trauma, usually in the course of his professional duties. Service Connection for PTSD is Granted. The Appellant contends that the Veteran's PTSD is related to an in-service stressful event. While the Veteran was stationed in Korea in 1974, he witnessed dead bodies being evacuated from a tunnel that was booby-trapped by the enemy. See March 2019 Transcript. After a review of the evidence, the Board finds that the Veteran had a current disability of PTSD. See November 2012. The Board resolves reasonable doubt in favor of the appellant to find that the Veteran experienced an in-service PTSD stressor when the Veteran witnessed dead bodies in a tunnel in 1974 while stationed in Korea. While DPRIS records indicate that the Veteran's battalion was inactive during a November 20, 1974 explosion that killed and injured servicemembers, service treatment records and military personnel records indicate that he was stationed in Korea from February 1974 to February 1975. The Veteran also provided credible testimony about the in-service stressor during the March 2019 Board hearing. The evidence is at least in equipoise on the questions of whether the PTSD had its onset in service or is etiologically related to the in-service stressor. A November 2012 VA examination report reflects that the VA examiner rendered a positive nexus opinion relating the Veteran's diagnosed PTSD to the in-service stressor. The VA examiner reasoned that the Veteran experienced nightmares immediately after the in-service stressor, and that the nightmares and memories are related to fear of hostile military action logically suggesting that the PTSD symptoms began during service. While there was a post-service motor vehicle accident, the VA examiner reasoned that the PTSD symptoms were present prior to a post-service motor vehicle accident. Such opinion relates the PTSD to the in-service stressor event, rather than post-service events. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD have been met. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, 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.