Citation Nr: 21029741 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 15-17 802 DATE: May 14, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran's currently diagnosed PTSD is related to his military service. CONCLUSION OF LAW The criteria for service connection for PTSD have been satisfied. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1975 to September 1975, and from May 19, 1984 to May 20, 1984. He had additional periods of Reserves and National Guard service. This matter comes before the Board of Veterans' Appeals (the Board) from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, and June 2020, the Veteran testified before Board, with a different Veterans Law Judge presiding over each hearing. Transcripts of the hearings are of record. In the interim, in November 2019, the Board, in pertinent part, remanded the issue of entitlement to service connection for PTSD. As there have been hearings by two separate Veterans Law Judges (VLJs) on the issue on appeal, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In Arneson, the United States Court of Appeals for Veterans Claims (CAVC) interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three VLJs involved in a panel decision. Id. By law, an appeal can be assigned only to an individual VLJ or to a panel of not less than three members. See 38 U.S.C. § 7102. Thus, when an appellant has had a personal hearing before two separate VLJs during the appeal and these hearings covered one or more common issues, a third VLJ is assigned to the panel after the second Board hearing has been held and the appeal is then ready for appellate review. Under these circumstances where a "claimant's appeal is assigned to a Board panel in a piecemeal fashion," CAVC held in Arneson that the "claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case." Arneson, 24 Vet. App. at 386. This does not mean that the hearing must be held before every member of the panel at the same time, but rather "only that [the appellant] be afforded the opportunity to be heard...by every panel member who will decide his case." Id. In the present case, the Veteran has not been afforded an opportunity to testify at a third hearing for the claim of entitlement to service connection for PTSD. However, in light of the full grant of the benefits sought on appeal, the Board finds that there is no prejudice to the Veteran in proceeding with adjudication at this time. Service Connection The Veteran contends that his current diagnosis of PTSD is related to an in-service stressor. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may additionally be granted for disability resulting from injury incurred in or aggravated while performing active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA) or a disease incurred or aggravated while performing ACDUTRA. 38 U.S.C. §§ 101 (24), 106. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. Where the claimed stressor is not a combat-related incident, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Generally, a claimant has the responsibility to present and support a claim for benefits. All information, lay evidence, and medical evidence, in a case is to be considered by the Board in deciding the claim. The competence, credibility, and probative weight of evidence must be assessed. When there is an approximate balance of positive and negative evidence regarding any material issue, the claimant is to be given the benefit of the doubt. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran claims that his PTSD is due, in part, to witnessing the aftermath of an accident involving a Battalion convoy during which a soldier was run over and killed. The Veteran has testified regarding this stressor and has submitted multiple statements regarding this incident. This stressor was confirmed by the AOJ in March 2020. Specifically, a Defense Personnel Records Information System (DPRIS) response details that the incident occurred in May 1978, and describes the incident with similar details to those provided by the Veteran. The DPRIS report also suggests that an incident report filed at the time of the accident mentions the Veteran. The Board notes that military personnel records document that the Veteran was a member of the Army National Guard during the timeframe in which the above stressor occurred. While it is unclear whether the Veteran was on ACDUTRA or INACDUTRA at the time, the Board finds that, taken together, the evidence suggests that the Veteran was on duty in some capacity at the time of his stressor, or injury. In September 2011, the Veteran underwent a VA examination, during which he described the above stressor. The examiner found that such was adequate to support a diagnosis of PTSD and contributed to the Veteran's diagnosis. VA treatment records reflect that the Veteran has a current diagnosis of PTSD in accordance with the DSM-V, and receives ongoing treatment for such. See, e.g., March 2019 VA treatment note. (Continued on next page) Accordingly, as the Veteran has a current diagnosis of PTSD, a confirmed in-service stressor, and a positive nexus opinion linking the two, service connection for PTSD is granted. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.