Citation Nr: 1333239 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 12-23 334 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for loss of taste and smell claimed as due to exposure to diesel fuel and petroleum products during service. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and TA ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1978 to February 1982. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In February 2013, the Veteran and JA testified at a Videoconference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. This case was previously before the Board in April 2013. The Board sought an advisory medical opinion from a neurologist at the Veterans Health Administration (VHA). The opinion requested was received in July 2013 and the Veteran was provided notice of the opinion at that time. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT It has not been shown by competent and probative evidence to at least equipoise that the Veteran incurred loss of taste and smell in service or that his loss of taste and smell is attributable to service, to include exposure to diesel fuel and petroleum products therein. CONCLUSION OF LAW Service connection for loss of taste and smell, to include as due to exposure to diesel fuel and petroleum products, is not established. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's paper and electronic claims files. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) requires the United States Department of Veterans Affairs 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). VA is required to notify the Veteran of the information and evidence not of record that is necessary to substantiate the claim. VA will inform the claimant of the type of information and evidence that VA will seek to provide, and of the type of information and evidence, the Veteran is expected to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to the Veteran prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ). See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). These VCAA notice requirements apply to all elements of a claim for service connection, so VA must specifically provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was provided with a pre-adjudication notice letter dated in February 2010 that addressed the notice elements concerning his claim for service connection. The February 2010 letter explained the evidence necessary to substantiate the claim for service connection, as well as the legal criteria for entitlement to service connection. The letter also provided notice regarding how disability ratings and effective dates for the award of benefits will be assigned if service connection is granted. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the foregoing, the Board finds that VA has discharged its duty to notify. For the reasons discussed above, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. The Board also concludes VA's duty to assist has been satisfied. VA has obtained all available service treatment and personnel records, post-service VA and private treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran a VA examination, and obtained a VHA opinion as to the etiology of the claimed disability. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (Court) has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examination and VHA opinion obtained in this case are adequate. Overall, they are predicated on a substantial review of the record and medical findings and they consider the Veteran's complaints, symptoms and history of the claimed disability. While the August 2010 VA examination report lacks an in depth and specific rationale for the conclusion stated therein, the July 2013 VHA opinion contains specific rationale for the conclusions stated therein based on these considerations as well as a thorough review of the medical literature. Notably, as discussed below, there is no probative competent evidence contrary to this opinion of record, and the medical evidence of record supports this conclusion. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed herein has been met. 38 C.F.R. § 3.159(c)(4). The Board acknowledges the Veteran's correspondence received in August 2013, which contained additional argument in opposition to the July 2013 VHA advisory medical opinion. The Veteran indicated that he declined to waive initial RO consideration of this new evidence and he requested that the case be remanded to the AOG for consideration of new evidence and readjudication by the RO/AMC in the first instance. However, other than the additional argument contained in his August 2013 statement, which amounts to criticism of the VHA opinion and requests for VA to undertake additional development, no actual additional evidence was received. As no additional evidence has been received, the Board is not obligated to remand the case to the RO. See 38 C.F.R. § 20.1304(c) (2012). The Board also acknowledges that the Veteran stated his concerns as to the adequacy of the July 2013 VHA opinion in his August 2013 statement. Those concerns included lack of consideration and research of OSHA guidelines and fact sheets from major fuel companies on the hazards of fuel exposure on various bodily systems. The Veteran concluded by essentially conceding that July 2013 VHA opinion may not be wrong, rather, he stated that he "just wants another opinion." He requested that he be afforded an evaluation by an expert medical specialist at the Connecticut Institute of Smell and Taste. For the reasons stated above pertaining to the adequacy of the July 2013 opinion, however, the Board declines to further delay adjudication of the claim for obtainment of an additional medical opinion. A request for such would be tantamount to a fishing expedition. VA's duty to assist the Veteran in the development of his claim does not extend to fishing expeditions. Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (holding that the duty to assist is not a license for a fishing expedition to determine if there might be some unspecified information which could possibly support a claim). Indeed, further development as requested by the Veteran would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini, 1 Vet. App. at 546. Finally, the Board notes that this claim has been pending since 2009, nearly four years. As discussed in detail below, the Veteran has submitted no competent and definitive medical nexus evidence contrary to the July 2013 VHA opinion. He has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). Therefore, the Board concludes that a request for additional evaluation and opinion is not warranted. In light of the foregoing, the Board finds that VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. II. Legal Criteria and Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service incurrence or aggravation of certain "chronic" conditions, such as diseases of the central nervous system may be presumed to have been incurred or aggravated if it is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Finally, service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Factual Background The Veteran essentially contends that his chronic and daily exposure to gas fumes during service while driving a fuel tanker truck, crawling inside and cleaning out the 5000 gallon holding fuel tank without protective gear, as well as an incident when diesel fuel was accidently spilled over top his head and down his body in April 1979, has ultimately resulted in damage to the nerve(s) related to his sense of smell and taste. The Veteran's DD Form 214 shows that his military occupational specialty during service was a motor transit operator. During the February 2013 hearing, the Veteran indicated that during service, he drove a fuel tanker truck where he endured daily exposure to the fumes of leaded, diesel, and JP-4 jet fuel. The Veteran's service treatment records show that in April 1979, several days after he was exposed to a fuel spill, he was evaluated by medical personnel. He reported contact dermatitis and swelling, especially in the regions of the buttocks and groin. During the February 2013 hearing, the Veteran stated that he had handed a fuel hose to a tank driver who was standing above him. The tank driver accidentally pulled the trigger on the fuel nozzle, and this caused the fuel to spill down on the Veteran's head, face, and body. He maintained that he also ingested fuel at that time. He was treated conservatively by his report with quarantine in his barracks with his feet elevated due to swelling of his body, which eventually resolved spontaneously. During the hearing, the Veteran further described the "independent truckers strike." Although he did not indicate how long it lasted, during such time, he indicated that he was required to get inside of 5,000 gallon fuel tank without use of a respirator or other type of protective gear to clean the tanks to prepare them to carry different fuel. He stated that this essentially involved using a coffee can to scoop any remaining fuel in the tanker into a 5 gallon bucket which he handed up and out of the tanker to be disposed of. He reported elevated exposure to fumes while cleaning out the fuel tanks in this manner. The Veteran reportedly noticed that his sense of smell was diminished a little while after his separation from active service. Shortly after he noticed deterioration in his sense of smell, he noticed deterioration in his sense of taste. He stated that his loss of sense of smell and taste had progressively worsened over time and at about the same rate. In support of his claim, the Veteran has submitted electronic research obtained from the Occupational Safety & Health Administration pertaining to potential health factors related to exposure to gasoline, to include implication of the central nervous system. He also submitted electronic research obtained from the National Institute of Health pertaining to a smell and taste program and the interplay between the two. A statement received from Dr. KA, M.D., in November 2009 documents the Veteran's complaint of a nearly complete loss of taste and smell since his exposure to diesel fuel during active service. The physician indicated that there were no significant findings on examination one way or another as to the Veteran's sense of smell since on most basic physical examinations for a chemical exposure there will be no objective finding. He acknowledged that many different solvents can cause damage to the nerves for smell within the nose, however, he could not document whether petroleum products themselves can do that. He recommended that the Veteran be seen at the University of Connecticut Taste and Smell Center where actual objective smell testing could be performed and the actual degree of loss of smell could be determined and possible treatment could be determined. He further stated that professionals at that facility may be able to provide a more definitive answer as to whether petroleum products can or cannot cause the type of smell loss as alleged by the Veteran. Though he would say it is possible that significant exposure to petroleum products as descried by the Veteran during service could cause this kind of damage to the olfactory nerves, he preferred that an expert opinion be obtained. In August 2010, the Veteran was afforded a VA examination to determine the nature and etiology of his claimed loss of smell and taste. Smell sensation was evaluated by exposure to coffee, soap, lemon, and chocolate. The Veteran reported negative perception of these odors. Taste sensation was evaluated with sugar, acetic acid, orange, and salt. The Veteran reported negative perception of these tastes on the tongue. The examiner diagnosed loss of taste and smell of unknown etiology. He opined that the Veteran's absence of smell and taste is less likely as not caused by or the result of his exposure to diesel fuel during active service because there was no scientific evidence that exposure to diesel fuel causes loss of taste and smell. In April 2013, the Board requested a VHA medical advisory opinion from a VA neurologist as to whether the Veteran's loss of smell and/or taste is etiologically related to any injury, event, or illness during the Veteran's active military service, to include exposure to multiple kinds of fuel and petroleum products during service. In July 2007, a VHA opinion was received from a VA neurologist, Dr. DJM, M.D., PhD. She stated that in summary, the Veteran reported a single acute exposure to a fuel spill, as well as prolonged occupational exposure to fuel vapors during his military service as a motor transit operator. At or around the time of his separation from service, he noticed a deterioration in his sense of smell, and subsequently, his sense of taste. He reported that these senses have progressively worsened in function over time, until his current state of apparent complete loss of taste and smell function. She stated that a review of the relevant medical literature, which she cited throughout her report, reveals no evidence for a causal relationship to permanent or progressive loss of olfactory and taste function from exposure to jet fuel. Specifically, she cited to medical literature showing that disorders of taste and smell are common in the general population and affect approximately 2.7 million adults in the U.S. Common conditions which can affect olfactory function include nasal sinus disease, smoking, certain medications, neurodegenerative disease, and environmental exposures. Factors which can affect taste perception include sialadenitis, dry mouth, drugs such as tricyclics (Pamelor) and beta blockers (Metoprolol), smoking, periodontal disease, GERD, and diabetes. Dr. DJM reviewed the known health effects of exposure to various jet fuels in detail. She acknowledged that medical literature noted that these fuels do contain a variety of potential toxic agents, including benzene, n-hexane, toluene, xylenes and other hydrocarbons. She noted that only a small number of published studies had studied the effects of acute or repeated skin or inhalation exposure of jet fuel on humans. Those studies found that exposure to JP-4 and JP-8 fuel appears to produce subtle motor and neurobehavioral effects which abate (within days) after occupational exposure. Several reports of acute high concentration JP-4 inhalation in military aircraft personnel included impaired coordination, apparent intoxication and memory impairment persisting up to 96 hours post-exposure. However, there was no evidence that remote single acute dermal exposure or prolonged occupational exposure over less than 4 years as in the Veteran's case has any permanent or progressive effect on olfactory and taste function. Dr. DJM stated that it is notable that the Veteran has a history of multiple conditions such as a history of smoking from age 8 to 35, sialadenitis, tricyclic and beta-blocker medication use, probable periodontal disease with loss of teeth, gastroesphageal reflux disease, and diabetes, all of which may affect taste and smell function. In light of the foregoing, she concluded that it is less likely than not (less than 50 percent probability) that any current loss of smell and/or taste is etiologically related to any injury, event, or illness during the Veteran's active military service. As noted above, in July 2013, the Veteran was provided notice of the above July 2013 VHA opinion from Dr. DJM. In response, he submitted a stated that was received in August 2013, which questioned why OSHA guidelines were not researched and applied in his case. He stated that major fuel companies have produced many fact sheets on the hazards of fuel damage to the human body's various systems and he questions if those facts were studied. He requested an evaluation by an expert medical specialist at the Connecticut Institute of Smell and Taste. He stated that he did not feel like the July 2013 VHA opinion is wrong, rather, he merely wants another opinion. IV. Analysis After consideration of the evidence noted above, the Board finds that the preponderance of the competent evidence of record is against a finding of service connection for loss of taste and smell. The Board acknowledges the Veteran's belief that his claimed loss of taste and smell is attributable to his claimed exposure to diesel fuel and petroleum products during military service. Although the Veteran is competent to report a history of his lay observations, he is not competent to address the etiological question of whether his claimed loss of taste and smell is attributable to his in-service exposure to diesel fuel and petroleum products as this is clearly a complex medical question. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As the Veteran is not competent to put forth such an assertion, resolution thereof depends on the relative weight to be assigned to the medical etiological opinions of record. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this regard, the only medical etiological opinion that may possibly be construed as an etiological opinion in favor of the claim is that of a private otolaryngologist, Dr. KA, M.D., dated in November 2009, however, the Board finds this opinion to be speculative at best. In this regard, Dr. KA acknowledged that "many different solvents" can cause damage to the nerves for smell within the nose, however, he could not document whether petroleum products themselves can do that. In this regard, the Board notes that the agent at issue in this case is specific to various types of fuel and petroleum products, not solvents in general. Moreover, Dr. KS ultimately opined that "it is possible" that significant exposure to petroleum products as described by the Veteran during service "could cause" this kind of damage to the olfactory nerves, however, he preferred that an expert opinion be obtained. The Board notes that medical opinions expressed in speculative language do not provide the degree of certainty required for medical nexus evidence. Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992). In light of the foregoing, the Board finds that this opinion is not entitled to any probative weight in determining whether the claimed disability is related to the Veteran's military service or injury or events therein. As to the August 2010 VA opinion, the Board finds that, standing alone, it is entitled to no probative value as the examiner did not provide supporting rationale for the conclusion provided other than stating that there is no scientific evidence that exposure to diesel fuel causes loss of taste and smell. However, the July 2013 VHA opinion provides adequate rationale with particular explanation and analysis of the relevant medical literature in concluding that medical research studies and literature does not support a finding that exposure to jet fuel and petroleum products causes loss of taste and smell. Moreover, the July 2013 VHA opinion is based on a review of the entire claims file including consideration of the aforementioned etiological opinions, the entire documented and reported history of the claimed disability, and the Veteran's contentions and electronic medical literal submitted by him in support of his claim. The examiner's rationale for her conclusions stated in the report is adequate. The examiner provided specific discussion and analysis of available case studies relevant to the Veteran's claim and she cited several conditions specific to the Veteran as possible or alternative causes for his loss of taste and smell. Given the VHA examiner's thorough review of the claims file and abundant supporting rationale, the Board finds this opinion to be the most probative evidence of record. Owens, supra. The Board has also considered the electronic research obtained from the Occupational Safety & Health Administration pertaining to potential health factors related to exposure to gasoline, and from the National Institute of Health pertaining to a smell and taste program and the interplay between the two. The Court has held that a medical article or treatment "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). Here, the medical articles are general in nature, and they do not significantly approach the facts and circumstances surrounding the Veteran's case in terms of establishing a relationship between his in-service exposure and his subsequent loss of taste and smell. Thus, the Board places far greater weight on the VHA opinion discussed above. The Veteran does not contend, nor does the evidence suggest, that his current loss of taste and smell had onset during military service. Although the VHA did include a reference to the Veteran having reported an onset at or near separation, a review of the Veteran's assertions reveal that he actually reported an onset shortly after separation. Under these circumstances, the Board must conclude that there is no credible lay evidence suggesting an onset of loss of taste and smell symptomatology during military service. Further, to the extent that his claimed disabilities could be considered diseases of the central nervous system, the Board concludes that the weight of the evidence is against finding that either disorder was manifested to a compensable degree within one year of separation. Although the Veteran indicated that he first noticed decreased sensation shortly after service, he described the loss of taste and smell as gradual over a period of years. As 38 C.F.R. § 4.87a, Diagnostic Codes 6275 and 6276 (2013) indicate that compensable ratings are warranted only for a complete loss of taste or smell, neither could be considered as having manifest to a compensable degree within one year of separation. Finally, the Board has considered whether the evidence suggests that the claimed disability may be proximately due to or aggravated by service-connected disability. In this regard, one of multiple possible or alternative causes for the Veteran's claimed disability as noted in the VHA opinion is GERD. Service connection is and has been in effect for gasteroenteritis since 1982. However, as noted in a October 2005 rating decision, a examiner opined in June 2005 opined that the Veteran's service-connected gastroenteritis is unrelated to his gastric antral valve ectasia (a structural abnormality)/GERD/irritable bowel syndrome. In addition, service connection is not in effect for diabetes mellitus and the Veteran's claim for such was denied in an April 2012 rating decision. In sum, the Board finds that the evidence preponderates granting the claim. The Veteran's loss of taste and smell did not first manifest in service. Moreover, and most saliently, the evidence preponderates against finding that the Veteran's loss of taste and smell is attributable to his exposure to diesel fuel and petroleum products during service. Accordingly, the claim must be denied. Gilbert, supra. ORDER Entitlement to service connection for loss of taste and smell claimed as due to exposure to diesel fuel and petroleum products during service, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs