Citation Nr: 21067571 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-41 360 DATE: November 4, 2021 REMANDED Entitlement to service connection for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for Crohn's disease is remanded. Entitlement to service connection for prostate cancer is remanded. Entitlement to service connection for diabetes mellitus type 2 (DMII) is remanded. Entitlement to service connection for erectile dysfunction (ED), including as secondary to DMII, is remanded. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for bilateral tinnitus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U. S. Army from November 1965 to November 1967. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a June 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) (Agency of Original Jurisdiction (AOJ)). In February 2016, the Veteran filed 10 claims for service connection, including the 7 now on appeal to this Board. He also filed a DD Form 214, Certificate of Release or Discharge from Active Duty, identifying him as a 4-time Purple Heart Medal recipient, former prisoner of war (POW), and Special Operations combat Veteran during the Vietnam War. However, in developing his claims, the government obtained a different DD-214 that did not identify him as receiving those several medals and commendations rather, the government's DD-214 reflected no deployments or combat encounters of any kind. As a result, the RO (AOJ) denied his claims for service connection in the June 2016 decision now on appeal. The RO then initiated an investigation of the Veteran's claim for POW status in accordance with then-current adjudication procedures. That culminated in a June 2017 administrative decision issued by the VA Director of Compensation Services Office denying the Veteran POW status. See 38 C.F.R. § 3.1(y)(3). After that administrative decision, the Veteran and his wife, Ms. [REDACTED], testified in support of all 7 claims currently on appeal, and regarding the additional claim for a TDIU, during an October 2020 "virtual" teleconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Following the hearing, the Veteran was granted an additional 30 days to submit more evidence and/or argument in further support of his claims, and that 30-day allowance since has expired. This appeal has been advanced on the docket (AOD) owing to the Veteran's age. Still more development is required, however, before deciding this appeal. 1. Entitlement to service connection for IBS is remanded. 2. Entitlement to service connection for Crohn's disease is remanded. 3. Entitlement to service connection for prostate cancer is remanded. 4. Entitlement to service connection for DMII is remanded. 5. Entitlement to service connection for ED, including as secondary to DMII, is remanded. The Veteran asserts that he is entitled to service connection for these claimed disabilities because they are all the result of his experiences as a soldier engaged in special operations and as a former POW during his service in the Republic of Vietnam and surrounding countries. He testified during his hearing that he has received a diagnosis of each claimed disability, although he has not received any VA medical examinations for these claimed disabilities. In certain circumstances, service connection for specific, enumerated diseases, including IBS and Crohn's disease, may be presumptively granted to former POWs by virtue of that status. See 38 C.F.R. §§ 3.307, 3.309(c)(2). A "former POW" is defined under 38 C.F.R. § 3.1(y) as a person who, while serving on active military duty, was forcibly detained or interned in the line of duty by an enemy or foreign government, the agents of either, or a hostile force. Likewise, service connection also may be granted on a presumptive basis for other enumerated diseases, including DMII and prostate cancer, due to exposure to certain herbicides, including the dioxin in Agent Orange. 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Herbicide exposure can be established by showing active service in the Republic of Vietnam during the period between January 9, 1962, and May 7, 1975 (i.e., Vietnam era), allowing VA to presume the Veteran was exposed to an herbicide agent by virtue of being in that location, absent affirmative evidence to the contrary. 38 C.F.R. § 3.307(a). The Veteran attempted to establish these proofs both his POW status and service in the Republic of Vietnam via the DD-214 reflecting combat awards and former POW status and bearing two stamps from July 1988 that he filed with his initial claim. However, due in part to those July 1988 stamps, the RO did not find this copy of the DD-214 to be entirely credible. Therefore, rather than accepting the document as sufficient proof of former POW status as provided by the Department of the Army, the RO researched his duty status further. 38 C.F.R. § 3.1(y)(1) (VA "shall accept the findings of the appropriate service department that a person was a prisoner of war during a period of war unless a reasonable basis exists for questioning it."). In March 2016 and at the RO's request, the National Personnel Records Center (NPRC) added all the Veteran's available military records to the claims file. Significantly, however, these records included a February 1985 request for a new copy of his DD-214 from him, explaining that his original was lost in a fire. The Department of the Army responded in June 1985, referring his request to the NPRC. Shortly after, these government-filed military records reflect the issuance of an August 1985 National Archives and Records Administration (NARA) SA Form 13-5 showing he was in POW status from August 3, 1967 to September 17, 1967. The SA Form 13-5, as provided by the government, bears the same July 1988 stamp and signature as his contested DD-214, offering consistency between these documents. Routing documents and internal VA communications over the course of this appeal suggest the RO either did not consider the government-provided SA Form 13-5 credible or otherwise did not realize it was first filed by the NPRC rather than by the Veteran as VA documents make multiple references to the lack of supporting evidence reported by the NPRC. Regardless, between February 2016 and June 2017, the Veteran filed additional evidence to support his claims, including personal statements describing his experiences as a POW, emails between him and Army Human Resources Command (HRC) requesting his personnel records, a copy of the DD-214 reflecting POW and combat experience, apparently issued by the Army HRC and displaying the official seal of the Army Adjutant General's Office to reflect authenticity, a cover letter from the Army HRC explaining the DD-214 is a certified copy and specifically noting the seal, and another copy of the same SA Form 13-5 previously on record. The June 2017 administrative decision denying POW status stated that NPRC "yielded no results for any dates of internment nor any records regarding POW dates or camp of confinement for this Veteran." It then concluded there was a lack of evidence demonstrating he is a former POW. After reviewing that decision and considering the entire record at the time of issuance, the Board is unable to concur with its finding. The decision did not address any evidence favorable to the Veteran's claim other than his DD-214, noting only that there were "conflicting DD-214s" and inexplicably concluding there was no supporting evidence from NPRC or NARA to support his claims. In sum, the administrative decision did not review the entire record and reflected factual inaccuracies. However, that notwithstanding, the record on appeal contains conflicting evidence regarding the Veteran's claimed former POW status, participation in special operations incidents, and combat service in the Republic of Vietnam during the Vietnam era. The Board is aware that VA procedures and protocols for adjudicating claims based on former POW status, and those based on participation in special operations incidents, recently changed during July and August 2021, respectively. Given these changes, and considering the conflicting evidence of record, the Board is directing development consistent with these new procedures, and readjudication by the RO, with special consideration of the evidence from the Army HRC and the NPRC-provided NARA Form 5-13, ostensibly prepared and signed by government personnel. 6. Entitlement to service connection for PTSD is remanded. The Veteran also maintains that his PTSD is due to his traumatic experiences ("stressors") as a POW. He testified during his hearing that he has received the requisite diagnosis of PTSD, although the record does not contain the report of any VA examination regarding this claim in terms of attributing his PTSD diagnosis to his purported POW experiences. According to 38 C.F.R. § 3.304(f), service connection for PTSD requires, in part, a medically established link between the current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. In adjudicating a PTSD service connection claim, the evidence necessary to establish the in-service stressor will vary depending on whether the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined that a Veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence verifying his testimony or statements as to the occurrence of the claimed stressor. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Conversely, if, as alleged here, the Veteran engaged in combat and the alleged stressor is related to same, then if consistent with the circumstances and conditions of his service VA will accept the stressor's occurrence without the need for independent corroboration. 38 C.F.R. § 3.304(f)(2) and (4). See also 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) and (e). As the Board is ordering further development of the evidentiary record regarding his claimed combat and POW experiences, this claim also will benefit from this evidentiary development. Moreover, a VA compensation examination is needed confirming the Veteran's PTSD diagnosis and commenting on its origins particularly in terms of whether related or attributable to his service, especially as he claims in combat and as a POW. See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 7. Entitlement to service connection for bilateral tinnitus is remanded. The Veteran also claims his bilateral tinnitus is attributable to his experiences as a former POW. Acoustic trauma due to combat is accepted as satisfying the in-service disease or injury element of a claim for service-connected hearing loss. See Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012); Hensley v. Brown, 5 Vet. App. 155, 159-160 (1993). By extension, this caselaw also extends this premise to claims for tinnitus, which is "a noise in the ear, such as ringing, buzzing, roaring, or clicking." See Dorland's Illustrated Medical Dictionary 1714 (28th ed. 1994). Tinnitus is often subjective in nature; indeed, because of its inherently subjective nature, even a layman such as the Veteran is considered competent to report the observable manifestations of this disease like this ringing, buzzing, roaring, or clicking sound mentioned. He is competent to provide evidence regarding tinnitus, as it is a condition readily apparent through the senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (a Veteran is competent to report symptoms that require only personal knowledge, not medical expertise, as they come to him through his senses). Because tinnitus is "subjective," its existence is generally determined by whether the claimant claims to experience it. Indeed, for VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). Here again, this claim also will benefit from the evidentiary development being directed regarding the Veteran's claimed combat and POW experiences. Also, a VA medical examination and opinion would be helpful in determining the nature and etiology of this claimed disease. McClendon, supra. 8. Entitlement to a TDIU is remanded. This remaining issue of entitlement to a TDIU, first raised by the Veteran in his August 2017 appeal to this Board, is "inextricably intertwined" with his several claims for service connection. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined when the adjudication of one or more claims could have a significant impact on the adjudication of another claim). Thus, the Board must temporarily defer considering this TDIU claim until completing the development of the several other, underlying claims. Accordingly, these claims are REMANDED for the following action: 1. If there are outstanding VA and/or private treatment records relevant to these claims, obtain them. 38 C.F.R. § 3.59(c). Also, appropriately notify the Veteran and his attorney if unable to obtain records they identify with sufficient information. 38 C.F.R. § 3.159(e). 2. Develop the Veteran's claims for service connection based on his purported involvement in special operations incidents in accordance with the updated directives in the VA Adjudication Procedures Manual. Specifically: (a.) Generate and send the special operations unit subsequent development letter to the Veteran. If, after 30 days, the Veteran has provided the requested information, or if the requested information is already on record including a review of the government-provided records added to the file in March 2016, the NARA Form 13-5 provided by NPRC, and the Veteran's statements already made to VA then issue a decision regarding special operations involvement and move to verifying his former POW status. (b.) Otherwise, rout the claim to the RO research coordinator to verify the claimed events, including, if necessary, submitting a classified research request to the VBA MRRC through VBMS before issuing a decision on the Veteran's purported special operations involvement. 3. After the special operations incident claim development is completed, develop the Veteran's claims for service connection based on his purported former POW status in accordance with the updated directives in the VA Adjudication Procedures Manual. Specifically: (a.) Generate and send to the Veteran the development letter titled "POW statement from Veteran and others needed" and request any information not previously provided to corroborate his claims. (b.) Conduct a search of the Defense POW/MIA Accounting Agency (DPAA) using information obtained from the Veteran and information already on record, including the dates and unit information contained in the government-provided NARA Form 13-5 filed in March 2016, and any additional information obtained during the development of his special operations involvement, as previously addressed. (c.) If former POW status is not confirmed, search the NARA website as directed in the Adjudication Procedures Manual. Again, specific attention should be paid to the existing NARA Form 13-5. (d.) Based on the Veteran's service dates, send a request to the appropriate Army department to request verification of detention or internment. Specific attention should be paid to the communications on record from Army HRC, filed in August 2016. (e.) If former POW status remains unconfirmed, request confirmation from the Benefits Assistance Service (BAS). Specific attention should be paid to the evidence of record, including the dates and information from the Veteran's statements, Army HRC documents, and NARA Form 13-5 previously cited. 4. Based on all additional evidence obtained or otherwise associated with the claims file, and all new determinations regarding the Veteran's purported involvement in special operations incidents and his claimed former POW status, schedule him for any needed VA medical examinations to assess the nature and etiology of his claimed conditions. Even if all development regarding his purported involvement in combat actions or as a POW is to no avail, still schedule him for VA compensation examinations regarding his claimed disabilities. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.