Citation Nr: 21013708 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-31 333 DATE: March 10, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Service connection for a back disability is remanded. FINDING OF FACT The Veteran’s PTSD is related to an in-service stressor. CONCLUSION OF LAW The criteria for service connection for posttraumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active service in the United States Air Force from November 1983 to November 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision. The Board subsequently denied the Veteran’s claim for a back disability in a July 2019 decision. The Veteran appealed the denial of the back disability claim to the Court of Appeals for Veterans’ Claims (Court). In an August 2020 order, the Court vacated the July 2019 Board decision regarding the back disability claim and remanded the matter for action consistent with the terms of a Joint Motion for Remand (JMR). Further, the Board, in its July 2019 decision, remanded the Veteran’s claim for service connection for PTSD to make attempts to verify the Veteran’s claimed stressors. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). PTSD Entitlement to service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that a claimed in-service stressor occurred; and (3) a link, established by medical evidence between current symptoms and the in-service stressor. 38 C.F.R. §§ 3.304 (f), 4.125. The Veteran underwent a VA examination in September 2016. The examiner diagnosed the Veteran with PTSD. This satisfies the first element for service connection. Regarding the second element, ordinarily lay evidence is not sufficient to establish that a claimed stressor occurred. However, there are exceptions that allow for lay evidence to establish that a claimed stressor occurred. The Veteran submitted an April 2016 statement that he witnessed several traumatic instances involving death. Specifically, he cited an incident where he assisted at a vehicle crash site where two people had died. Further, in the September 2016 VA examination the Veteran again cited this incident involving the motor vehicle accident as well as another incident where he responded to a home on the Air Force base where he witnessed a girl who had committed suicide. The examiner noted that both of these stressors were related to the Veteran’s fear of hostile military or terrorist activity. These statements, as well as confirmation from the VA examiner, suggest that the Veteran’s claimed stressor relates to fear of hostile military or terrorist activity. “If a stressor claimed by a Veteran is related to the Veteran’s 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 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, 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). Fear of hostile military or terrorist activity is defined to mean 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, and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The September 2016 VA examination stated that the Veteran’s PTSD is at least as likely as not incurred in or caused by the investigation of the crash scene where the car was split and driver was killed. The examiner refers to the stressor that the Veteran claimed in his April 2016 statement, to include the investigation of this same car accident. As such, the Board affords great probative weight to the private examiner’s opinion and finds the third element for service connection satisfied. The Board finds the evidence to be sufficient to establish service connection for PTSD. 38 C.F.R. § 3.304(f). Accordingly, service connection for PTSD is granted.   REASONS FOR REMAND Back Disability In the August 2020 JMR, the Court found that remand is in order to correct a duty to assist error regarding an inadequate back examination. Specifically, the Court found that the May 2018 examination did not properly account for the Veteran’s lay assertions regarding his ongoing symptomatology that was noted previously in the examination. Therefore, remand is in order to correct this duty to assist error. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s back disability is at least as likely as not (50 percent or greater probability) incurred in or caused by the Veteran’s military service. The claims file should be provided to the physician for review. Specifically, the physician must address the Veteran’s lay statement regarding his ongoing symptomatology relating to his back disability. The rationale for the opinion must be provided. If a physical examination is deemed necessary by the physician, one should be scheduled. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.