Citation Nr: 1325277 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 10-31 390 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for loss of sense of smell and taste. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran had active duty service from December 1976 to August 1977, March 1985 to April 1986, and from March 1990 to May 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision of the Buffalo, New York, Department of Veterans Affairs (VA) Regional Office (RO). In August 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. At the hearing, the VLJ took testimony on service connection for a left knee disability (which was denied in an April 2009 rating decision), but noted it was uncertain whether the Board had jurisdiction of that issue. Upon further review, the Board has determined that it does not have jurisdiction of the claim of entitlement to service connection for a left knee disability, and it is referred to the RO for appropriate action. Additionally, the record was held open for 60 days following the hearing so that the Veteran could submit additional evidence. The Veteran submitted additional evidence in September 2011; however as such evidence pertains to his claimed left knee disability, such should be considered by the RO when adjudicating that referred issue. As a final preliminary matter, the Board notes it has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. FINDING OF FACT The evidence indicates that the Veteran's loss of sense of smell and taste is causally related to his military service. CONCLUSION OF LAW The criteria for establishing service connection for loss of sense of smell and taste have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran seeks service connection for loss of sense of smell and taste, which he attributes to exposure to toxic fumes from hazardous cargo routinely transported on aircrafts he flew while in service. Service records confirm that the Veteran served as a flight engineer. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or from aggravation of a preexisting injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury that was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish entitlement to direct service connection, there must be: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of his claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Here, the Veteran's service treatment records are silent for complaints relating to loss of taste or smell, though a February 1991 treatment note documented complaints of flu-like nasal symptoms. In June 2008, the Veteran underwent a VA examination which verified that he had no sense of taste or smell, but which did not offer an opinion as to the etiology of these disorders. In February 2009, an addendum opinion was obtained, which simply stated, "There is no evidence of an anatomical or pathological basis for the Veteran's loss of [sense] of smell or loss of taste." In August 2011, the Veteran testified about his claimed disorders, asserting that his sense of smell and taste began to diminish in the last few months of his service. He described that he transported hazardous cargo on mostly every flight. The Veteran also testified to occasional fuel spills and hydraulic leaks in flight, stating that an oxygen mask could not be worn to repair such leaks, due to the explosive properties of oxygen mixed with hydraulic fluid; accordingly, repairing such leaks resulted in the inhalation of fumes. He also reported that, as a flight engineer, it was his responsibility to refuel the airplanes. He asserted that some of the jet fuel, including JP-5-100, was taken off the market in the early 1990s because it was a known carcinogen. During the hearing, the Veteran's wife testified that, while the Veteran was still in service, she noticed the Veteran using an inordinate amount of salt, pepper and hot sauce on his food and that he could not smell smoke. The Veteran also attested to not being able to smell smoke while in service. Here, the Board notes that the Veteran is competent to report symptoms such as diminished sense of taste and smell because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Similarly, the Veteran's wife is competent to report her observations about the Veteran's use of salt, pepper and hot sauce on his food. The Board also finds nothing in the record to call into question the credibility of the Veteran or his wife, such that their statements are deemed credible. Given the above, the Board obtained an expert medical opinion in June 2013 which addressed the Veteran's credible assertions of an in-service onset of symptomatology of loss of sense of taste and smell and his repeated exposure to hazardous materials. The June 2013 VA opinion found that it was likely that the Veteran's loss of sense of taste and smell were related to his service. In so finding, the examiner noted that the Veteran's service treatment records showed documentation of treatment for flu-like nasal symptoms in 1991. He reasoned that a patient can have loss of sense of smell and taste with no clinical evidence of anatomical abnormality or local pathological lesion on clinical examination, due to the fact that the sensory receptors of the sense of smell and taste can be totally destroyed without any anatomical abnormality or local pathological lesion on clinical examination. The examiner further noted that these sensory receptors are under the normal lining of the nasal and oral cavities, suggesting that they are not observable from the exterior. The June 2013 opinion is afforded high probative value as it was made after a review of the relevant evidence, including the Veteran's and his spouse's competent and credible contentions, and contains a rationale for the conclusion reached. Such opinion outweighs the February 2009 negative opinion, which provided no rationale for the conclusion reached. Resolving any reasonable doubt in favor of the Veteran, the Board finds that service connection for loss of sense of smell and taste is warranted. ORDER Service connection for loss of sense of smell and taste is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs