Citation Nr: 1427735 Decision Date: 06/18/14 Archive Date: 06/26/14 DOCKET NO. 07-20 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to service connection for loss of sense of smell and taste, to include as secondary to service-connected hypertension. 2. Entitlement to service connection for a sinus disorder, to include as secondary to service-connected hypertension. 3. Entitlement to service connection for asthma, to include as secondary to service-connected hypertension. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran had active military service from March 1964 to March 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the Veteran's claims for service connection for asthma, a sinus disorder, and loss of sense of smell. The appeal was remanded in October 2010, September 2013, and January 2014 for additional development. FINDINGS OF FACT 1. Loss of sense of smell and taste is not shown to be causally or etiologically related to any disease, injury, or incident during service and was not caused or aggravated by service-connected hypertension. 2. Sinusitis (also diagnosed as allergic rhinitis) is not shown to be causally or etiologically related to any disease, injury, or incident during service and was not caused or aggravated by service-connected hypertension. 3. Asthma is not shown to be causally or etiologically related to any disease, injury, or incident during service and was not caused or aggravated by service-connected hypertension. CONCLUSIONS OF LAW 1. Loss of sense of smell and taste was not incurred in or aggravated by the Veteran's active duty military service and was not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 2. Sinusitis (also diagnosed as allergic rhinitis) was not incurred in or aggravated by the Veteran's active duty military service and was not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 3. Asthma was not incurred in or aggravated by the Veteran's active duty military service and was not secondary to a service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Board finds that VA has satisfied its duty to notify through a September 2004 letter, which also addressed the elements of secondary service connection. Specific notice regarding about assigning effective dates and disability ratings was provided in the May 2007 statement of the case. In a June 2007 response, the Veteran acknowledged receipt of the notice and referred to additional VA treatment records pertinent to his claim. Those records were subsequently obtained. Thereafter, the claim was readjudicated, most recently in an April 2014 supplemental statement of the case. Mayfield, 444 F. 3d at 1333-34. Relevant to the duty to assist, the Veteran's service treatment records, VA treatment records, Social Security Administration disability records, and private records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide her pending appeal. As this is a paperless claim, the Board has reviewed the Veteran's VBMS and paperless Virtual VA claims file. Additionally, the Veteran was afforded multiple VA examinations in order to adjudicate his service connection claim. Those examinations, in whole, addressed the etiology of his loss of sense of smell and taste, sinusitis, and asthma on a direct and secondary basis. The Board finds that the proffered opinions were based on current or past interviews with the Veteran and review of the record, including multiple physical examinations. From these examinations, clear conclusions with reasoned medical explanations were reached and are sufficient to decide the Veteran's claims. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may be granted with medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307, (ii) present manifestations of the same chronic disease, and (iii) evidence of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's claimed conditions are not diseases or disabilities contemplated by this regulation. Therefore credible lay evidence of continuous symptoms can support the claim. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Again, the Veteran's claimed conditions are not diseases or disabilities contemplated by this regulation. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the course of this appeal, VA amended 38 C.F.R. § 3.310 effective October 10, 2006), to implement the decision in Allen. See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006). The existing provision at 38 C.F.R. § 3.310 (b) was moved to sub-section (c). The amended 38 C.F.R. § 3.310 (b) institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. To whatever extent the revised regulation may be more restrictive than the previous one, the Board will afford the Veteran review under both the old and new versions. See VAOPGCPREC 7-2003 (Nov. 19, 2003). The Veteran contends that his loss of smell and taste, sinusitis, and asthma were caused or aggravated by medication prescribed for his hypertension, Atenolol. He contends that even after stopping that medication in 2005, he has suffered from all of these conditions on a daily basis. Alternatively, he contends that these conditions, especially his sinusitis, were caused or aggravated by, or had their onset during, active service. Service treatment records reflect that in May 1964, the Veteran was treated for pharyngitis. In March 1965, he was treated for an upper respiratory infection. An August 1973 post-service VA examination shows his report of sinus trouble and a runny nose. Post-service treatment records reflect that the Veteran was being treated for hypertension at least beginning in 2001. He was diagnosed with chronic obstructive pulmonary disease (COPD) in October 2002, following a report that he had begun to experience a cough in around November 2001 and had developed shortness of breath and wheezing in November 2002. It was noted that he had smoked a pack of cigarettes per day for 30 years until December 2002. In May 2003, he was recently diagnosed with asthma. He felt better using Advair. He complained of a bad taste in his mouth that had been present for a few weeks but was better when he took his wife's Prilosec. A June 2004 VA record shows that the Veteran was being treated for allergies with Zyrtec which was not working well. He had a stuffy nose. He was taking Atenolol for heart palpitations. He had a history of smoking two packs of cigarettes per week for 25 years. A July 2004 spirometry showed mild COPD. VA treatment records show a prescription for Atenolol in May 2001 and in January 2004 for use for hypertension and heart symptoms. A November 2004 private record shows diagnoses of COPD, asthma, and many allergies. A January 2005 VA note states that he had stopped taking Atenolol because it had aggravated his asthma, as per the Veteran's report, and he had switched to Enalapril. A March 2008 VA record shows that his hypertension and asthma were controlled. On September 2008 VA examination, after physically examining the Veteran and reviewing the claims file, the examiner concluded that it was at least as likely as not that the Veteran's bronchial asthma was related to his use of Atenolol. The examiner provided a lengthy explanation for that conclusion, including that Atenolol was a beta-blocker used to treated cardiovascular diseases but that it was also known that the drug, by blocking Beta-2 receptors of pulmonary smooth muscle cells, caused asthma. When the receptors were blocked, bronchospasm with serious lack of oxygen in the body could result. Atenolol was known to intensify breathing difficulties in patients with undiagnosed asthma. Individuals with asthma had a greater degree of bronchial hyperreactivity which was possibly the case for the Veteran. If that was the case, the addition of Atenolol to the medication regimen could have served to trigger the underlying bronchial hyperreactivity in the Veteran. However, when the infection resolved, the irritation was relieved and the asthma would become quiescent. On September 2008 VA examination, the Veteran stated that as soon as he started taking Atenolol five years previously he developed a dry persistent cough that was nonresponsive to antibiotics. He was on allergy immunotherapy which was helping minimally. He also developed loss of smell and taste five years previously. He denied a smoking history. Physical examination showed 50 percent nasal obstruction due to mucoid secretions and polyps. The examiner concluded that Veteran's lack of smell and taste, dysosmia, was unlikely caused by or the result of Atenolol use and was most likely of a post viral, infectious etiology which was a common cause of those symptoms. Another cause could be the normal result of aging. However, his chronic allergic rhinitis and nasal polyps was likely the main culprit of his dysosmia. In April 2009, an addendum opinion was obtained with regard to the etiology of the Veteran's asthma, and the first September 2008 VA examiner clarified that, for the reasons stated previously, it was likely that the Veteran's allergic asthma was induced by Atenolol. The examiner also concluded that it was not likely that the Veteran's pharyngitis and upper respiratory infection diagnosed in service marked the onset of the Veteran's asthma. On December 2010 VA examination, the Veteran stated that he had had an irregular heartbeat beginning in 1998 and had started taking Atenolol. He reported also being diagnosed with hypertension in 1998. He reported an onset of asthma one year after starting Atenolol. A specialist advised him that the medication might have caused his asthma. He currently had wheezing at least once per day. He reported that he had smoked briefly in the past. He had multiple allergies and had allergy shots monthly. He reported that he had had an onset of a runny nose requiring sinus pills while in service and then subsequently developed increasing problems with sinus congestion and drainage. These symptoms worsened in 1999 when his asthma was diagnosed. He had occasional sinus infections requiring antibiotics. His medications included an inhaler, saline drops, and allergy medication. He reported that he experienced a loss of taste and smell in 1999. He could only distinguish sweet, sour, and salty tastes. After physically examining the Veteran and reviewing the claims file, the examiner concluded that the Veteran's asthma was not caused or permanently aggravated by his hypertension or treatment for hypertension or a heart disorder. The examiner explained that there was no plausible medical relationship by which hypertension or cardiac arrthymias could cause or exacerbate asthma. There was also no plausible medical relationship between the Veteran's sinus condition, diagnosed as allergic rhinitis, and hypertension or Atenolol in that allergic rhinitis was related to environmental allergens and not in general to any other conditions or medication. However, there was a potential relationship between the Veteran's medication to treat his heart condition and his asthma. Beta-blocking medication was known to exacerbate asthma. That being said, beta blocking medications did not permanently alter pulmonary mechanics and the effects stopped when the medication was stopped. There was no medical indication to suggest that beta blockers such as Atenolol could cause asthma. The examiner also concluded that the Veteran's current sinusitis was not caused or aggravated by service, in that he was treated for two relatively minor upper respiratory complaints which were not chronic or acute allergic reactions, whereas his current respiratory disease was perennial allergic rhinitis. Therefore, the two conditions were unrelated. Finally, the examiner concluded that the Veteran's loss of sense of smell and taste was most likely secondary to his perennial allergic rhinitis. That causal relationship had been abundantly documented in medical studies. Dysosmia could be caused by many factors, including toxins, trauma, beta-blocking medication, surgeries, radiation, nutritional diseases, and autoimmune diseases. However, the medical literature stated that the odds that the Veteran's Atenolol had caused or aggravated his dysosmia were low, and that the most common causes were nasal and sinus diseases, including rhinitis. In October 2013, a VA examiner reviewed the 2010 VA opinion and determined that the rationales provided were accurate. It was noted that Enalapril, the Veteran's current heart medication, could cause asthma, rhinorrhea, and ansomia, which was essentially the same as dysosmia. However, the examiner determined that Enalapril did not cause the Veteran's sinusitis, asthma, or dysosmia because the medication was begun following the onset of those conditions. The examiner also concluded that it was less likely than not that Enalapril aggravated those conditions, citing medical literature. From this literature, the examiner concluded that bronchial restriction was rare and it was unlikely to be the case for the Veteran as such would be a very serious side effect and would have prompted discontinuation of the medication. There was no medical research to support a relationship between rhinitis and the use of Enalapril. Finally, studies had not shown a relationship between dysosmia and the use of Enalapril. There was also overwhelming evidence that the Veteran's dysosmia was due to his allergic rhinitis. In this case, the Board finds that the preponderance of the evidence is against a claim for service connection for loss of sense of smell and taste, sinusitis, and asthma, on both a direct and secondary basis. First, with regard to the claim for service connection for sinusitis, although the Veteran contends that his sinusitis began in service, the competent medical evidence weighs against his contentions. In that regard, the December 2010 VA examiner concluded that the Veteran's current upper respiratory condition, diagnosed as allergic rhinitis, was unrelated to the in-service diagnoses of pharyngitis and an upper respiratory infection. The VA examiner explained that the in-service complaints were for minor upper respiratory conditions and did not demonstrate any chronic respiratory illness, as opposed to the Veteran's current allergic rhinitis which was a chronic condition. Thus, the illnesses were unrelated. The Board notes that the Veteran reported a runny nose and congestion on August 1973 VA examination. However, such symptoms were documented eight years following service separation, and therefore do not demonstrate a continuity of symptoms. Moreover, his symptoms at the time were not considered to be related to service, and he denied having them in service. He also reported having had sinus surgery following service. Thus, that VA examination does not support his claim that his sinusitis or currently diagnosed allergic rhinitis had its onset in service. Although the Veteran is competent to state that he experienced symptoms such as a runny nose in service and since service, his statements are deemed less credible to the Board because they do not comport with the medical record. Therefore, the Board assigns more weight to the competent medical evidence rather than to his lay statements of onset and continuity of symptoms. The Board also finds that service connection for sinusitis, or diagnosed allergic rhinitis, on a secondary basis is not warranted. Multiple VA examination opinions concluded that the Veteran's diagnosed allergic rhinitis was due to environmental allergens and that there was no known medical relationship between hypertension or hypertension medication and allergic rhinitis or sinusitis. With regard to the Veteran's claim for service connection for asthma and for loss of sense of smell and taste, the Board finds that the weight of the probative evidence also weighs against those claims on a direct basis. First, the 2009 VA examiner found no indication that the Veteran's asthma was due to his upper respiratory illnesses in service. For that matter, there is no indication of a diagnosis of asthma or loss of smell and taste in service. The Veteran has not stated that his asthma or loss of smell or taste began in service. There is no medical evidence to relate his current asthma or loss of sense of smell and taste to his service. Therefore, there is no indication that these disorders began in service, there is no showing of continuity of symptoms since service, and there is no medical nexus relating these disorders to service. Thus, the claims on a direct basis must be denied. On a secondary basis, with regard to the claim for service connection for asthma, the Board finds that although the September 2008 VA examiner, with a 2009 addendum, found that the Veteran's use of Atenolol caused the Veteran to experience asthmatic symptoms, the examiner did not find that the drug caused the onset of asthma or a permanent aggravation of the Veteran's asthma, which is necessary for the claim to prevail. That opinion is consistent with the 2010 VA opinion, which clarified further that although Atenolol could aggravate the Veteran's asthma, the drug did not change pulmonary function, thus there was no medical evidence that the drug aggravated asthma. Therefore, the Board finds that the multiple VA medical opinions in this case weigh heavily against the Veteran's claim. For, although Atenolol could create a temporary aggravation of asthma, in both diagnosed and undiagnosed asthmatic individuals, it did not cause asthma and did not permanently aggravate asthma. Therefore, despite the Veteran's contentions that his asthma began following taking the drug and continued even after ending the drug, the competent medical opinions, which were based upon medical knowledge, literature, and research, found that such contentions were not founded. Accordingly, the claim on a secondary basis must be denied. And finally, with regard to the claim for service connection for loss of smell and taste on a secondary basis, the Board finds that the VA opinions in this case have concurred that the Veteran's symptoms were most likely related to his allergic rhinitis, rather than to the use of Atenolol. Although beta-blockers had the potential side effect of causing these symptoms, it was much more likely, or within the realm of 50 percent probability or greater, that the Veteran's symptoms were not as due to the use of that medication, given his medical history and symptom presentation. Accordingly, the claim on a secondary basis must be denied. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, the disability at issue in this case could have multiple possible causes and thus, falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007). While the Veteran is competent to state that he suffered from respiratory symptoms in service, and of shortness of breath, and wheezing, loss of smell and taste when taking Atenolol, he is not competent to state that his currently diagnosed disorders were caused or aggravated by his upper respiratory illnesses in service, or to the use of Atenolol, because he does not have the requisite knowledge and skills to determine such etiology. Such a conclusion requires medical skill and review of the physical findings in service and since service. The VA medical opinions have reviewed the record and taken into account the Veteran's contentions, but found that the Veteran's current disorders were unrelated, not caused or aggravated by, service or to the use of Atenolol. In this case, a preponderance of the competent medical evidence of record is against the Veteran's claims for service connection for asthma, sinusitis, and loss of smell and taste. Thus, the benefit of the doubt doctrine is not for application and those claims must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107. ORDER Service connection for asthma is denied. Service connection for sinusitis is denied. Service connection for loss of smell and taste is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs