Citation Nr: 1300942 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-06 059 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for loss of sense of taste. 2. Entitlement to an initial evaluation in excess of 10 percent for loss of sense of smell. 3. Entitlement to an effective date prior to December 10, 2004, for the award of service connection for loss of sense of taste and smell. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from June 1978 to May 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for loss of sense of taste and smell, effective December 10, 2004. Noncompensable and 10 percent evaluations, respectively, were awarded for those disabilities at that time. The Veteran timely appealed the assigned evaluations and effective date issue. During the pendency of the appeal, the RO awarded a 10 percent evaluation for loss of sense of taste, effective December 10, 2004. This was done in a February 2009 rating decision. (The Board has re-characterized the issue on appeal in order to comport with this award of benefits.) FINDINGS OF FACT 1. The Veteran is currently assigned the highest schedular evaluations possible for his loss of sense of taste and smell. 2. The rating schedule criteria for the loss of sense of taste and smell in this case are adequate, and his disabilities do not represent an exceptional or unusual disability picture. 3. The Veteran's claim for service connection for loss of sense of taste and smell was first received by VA on December 10, 2004. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent, including entitlement to an extraschedular evaluation, for loss of sense of taste have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.87a, Diagnostic Code 6276 (2012). 2. The criteria for an initial evaluation in excess of 10 percent, including entitlement to an extraschedular evaluation, for loss of sense of smell have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.7, 4.87a, Diagnostic Code 6275 (2012). 3. The criteria for award of an effective date prior to December 10, 2004, for the grant of service connection for loss of sense of taste and smell have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's higher evaluation and earlier effective date claims for loss of sense of taste and smell arise from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as a different notice requirement that is fulfilled by issuance of a statement of the case comes into effect. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. VA has a duty to assist the Veteran in the development of a claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims herein decided. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of a claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evaluations for Loss of Sense of Taste and Smell Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2012); resolving reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran has been assigned 10 percent evaluations for his loss of taste and smell under Diagnostic Codes 6276 and 6275, respectively. Under those Diagnostic Codes, a 10 percent evaluation is assigned when there is complete loss of the sense. See 38 C.F.R. § 4.87a, Diagnostic Codes 6275, 6276 (2012). Thus, the Board recognizes that the Veteran has been assigned the highest possible schedular evaluations for his loss of sense of taste and smell. On appeal, the Veteran acknowledges that he is currently in receipt of the highest schedular evaluations for those two disabilities. However, he argues that he should be awarded an extraschedular evaluations for those disabilities. The Board must determine whether the schedular evaluation is inadequate, thus requiring that VA refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1) (2012). An extra-schedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture. An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment or frequent periods of hospitalization. Id. at 115-116. When either of those elements has been satisfied, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In this case, the schedular evaluation is adequate. The Veteran has been assigned the highest evaluation under the Rating Schedule for his service-connected loss of sense of taste and smell, which contemplates complete loss of those senses. Moreover, throughout the appeal period, the Veteran does not allege that he is unable to work due to his loss of sense of taste and smell. In so far as the Veteran has argued that he should be awarded an extraschedular evaluation because he cannot smell natural gas, and that this lack of an ability to smell a gas leak has led on at least one occasion to his residency having to be evacuated due to such a gas leak that he could not detect, the Board finds that such is not an unusual disability picture. As already noted, the loss of the sense of smell, particularly complete loss of that sense, is addressed by the schedular criteria. In this case, the Board is bound by the schedular criteria regardless of whether the Veteran feels that 10 percent is not a high enough evaluation commensurate with the inherent dangers of losing one's sense of smell or taste. In short, the Board does not find that the Veteran's disability presents an exceptional or unusual disability picture in this case. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not in order. Earlier Effective Date On appeal, the Veteran argues that the effective date assigned for his loss of sense of taste and smell should be May 15, 1981, as noted in a July 2009 correspondence. The Board notes that such a date is 11 days after the Veteran's discharge from service. The Board takes the Veteran's written date to be a typographical error. He likely meant May 5, 1981, which is the day after his discharge from service and is the earliest date on which he would be entitled to any VA compensation benefits. In the case of a claim for compensation received more than one year after service; the effective date of the award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400 (2012). In this case, the Veteran first filed a claim for service connection for loss of sense of taste and smell in a December 2004 document. Review of the claims file prior to that document does not demonstrate any claim for benefits regarding loss of sense of taste or smell. The last correspondence from the Veteran prior to that December 2004 document was a May 1999 statement regarding a missing compensation benefits check and subsequent correspondence between him and VA resolving that matter. The Board notes that December 10, 2004, was determined to be the date on which the claim was received by VA. Review of the December 2004 document reveals 4 date stamps on that document: one stamp indicating receipt on December 8, 2004; 2 stamps indicating receipt on December 10, 2004; and, a stamp indicating receipt on December 14, 2004. The Board notes that the December 8, 2004, stamp indicates that the document was received by the Veteran's representative, the Illinois Department of Veterans Affairs, on that date, while the two December 10 stamps indicate that the document was received by the American Legion and the Chicago VA RO on that date. In this case, the Board finds that an earlier effective date is not warranted. Specifically, the Board notes that while the Veteran may have submitted the claim to his representative on December 8, 2004, the claim was not received by VA until December 10, 2004. Because December 10, 2004, is the date on which VA received the claim, such is the proper date for the awards of service connection for loss of sense of taste and smell. Accordingly, the Board finds that an earlier effective date for those claims must be denied. See 38 C.F.R. § 3.400. In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not helpful to the Veteran in this instance. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial evaluation in excess of 10 percent for loss of sense of taste is denied. An initial evaluation in excess of 10 percent for loss of sense of smell is denied. An effective date prior to December 10, 2004, for the award of service connection for loss of sense of taste and smell is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs