Citation Nr: 1750146	
Decision Date: 11/06/17    Archive Date: 11/17/17

DOCKET NO.  11-15 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

1.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a nasal disability, claimed as the loss of the sense of smell.

2.  Entitlement to service connection for a nasal disability, claimed as the loss of the sense of smell.


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

L. S. Kyle, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1955 to September 1958.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The Veteran appeared at hearing before the undersigned in September 2016.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  VA has received new evidence since a September 2007 Board decision that denied service connection for a nasal disability, claimed as the loss of the sense of smell, that relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim.

2.  The preponderance of evidence is against a finding that the Veteran's loss of the sense of smell is the result of an injury or disease during active service.


CONCLUSIONS OF LAW

1.  New and material evidence has been received to reopen the service connection claim for a nasal disability, claimed as the loss of the sense of smell.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2017).

2.  The criteria for entitlement to service connection for a disability manifest by the loss of the sense of smell have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  New and Material Evidence

A September 2007 Board decision denied service connection for the residuals of an in-service nasal injury, to include the loss of the sense of smell.  Board decisions are final when issued.  38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100.

A claimant may reopen a finally adjudicated claim by submitting new and material evidence.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  New evidence is defined as existing evidence not previously submitted to the VA, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  38 C.F.R. § 3.156(a).  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  Id.

The Court of Appeals for Veterans Claims (Court) has held the phrase "raises a reasonable possibility of establishing the claim" must be viewed as "enabling rather than precluding reopening."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  The Court emphasized that 38 C.F.R. § 3.156 "does not require new and material evidence as to each previously unproven element of a claim."  Id. at 120.  The Court further explained the provisions of 38 C.F.R. § 3.156(a) creates a "low threshold" for finding new and material evidence that is favorable to the claimant.  Id.

A determination of whether a previously denied claim should be reopened is a jurisdictional matter that must be addressed before the Board may consider an underlying claim.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001).  Therefore, regardless of the AOJ's action, the Board must address the question of whether new and material evidence has been presented to reopen a claim of service connection.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a).

In September 2007, the Board denied service connection for the loss of the sense of smell, finding there was no evidence the Veteran had any residuals of an in-service nasal injury.  In its decision, the Board noted records related to an alleged post-service surgery to correct a deviated septum were not available for review.  In July 2009, the Veteran provided records related to a May 1977 surgery to correct a deviated septum.  He has also provided an opinion from his treating physician confirming that he has in fact lost the sense of smell.  This evidence was not of record at the time of the September 2007 Board decision that denied service connection for the loss of the sense of smell.  It relates to the basis for the prior denial and raises a reasonable possibility of substantiating the claim.  Thus, it constitutes new and material evidence that warrants reopening of the Veteran's claim.

II.  Service Connection

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.

In this case, the record establishes the Veteran has lost the sense of smell; therefore, the current disability requirement for his service connection claim has been met.  The record also establishes there was an in-service injury.  Service treatment records reveal the Veteran broke his nose during active service and had a deviated septum at his separation from service, resulting in intermittent nasal obstruction.  Thus, the only issue that remains is whether there is a nexus between the current disability and the in-service injury.

The Board finds the preponderance of evidence is against a finding that the Veteran's loss of the sense of smell is the result of the documented in-service injury.  In August 2017, the Board obtained a nexus opinion from an otolaryngologist with the Veterans Health Administration (VHA).  T.B., M.D., determined the Veteran's loss of the sense of smell is less likely than not the result of the in-service injury.  T.B., M.D., noted the Veteran had a deviated septum at separation from service and acknowledged this type of injury has been known to result in olfactory impairment.  However, he explained anatomical factors, such as a deviated septum, are distinct from inflammatory conditions that are also common precipitants of olfactory impairment.  T.B., M.D., commented the absence of olfactory impairment at the time of the initial injury makes it more likely that the current disability is related to post-service inflammation due to conditions such as rhinosinusitis and/or chronic rhinitis, or even smoking-related olfactory impairment given the Veteran's history of smoking.  The Board finds the August 2017 VHA opinion is probative with respect to the Veteran's claim because T.B., M.D., considered an accurate factual history of the claimed disability and provided a well-reasoned rationale to support his opinion.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).

Further, the opinion of the Veteran's treating physician, M.T.R., D.O., supports a finding that the Veteran's current disability is the result of post-service causes rather than the in-service injury.  M.T.R., D.O., has related the Veteran's current disability to a post-service surgery in May 1977.  M.T.R., D.O., explained the Veteran has suffered chronic sinus infections and shortness of breath for years.  M.T.R., D.O., noted these symptoms became worse after the May 1977 surgery and are now seriously compromising, resulting in the current disability.  The Board finds the rationale provided by M.T.R., D.O., corroborates the opinion provided by T.B., M.D., as it suggests the olfactory impairment in the Veteran's case is the result of post-service inflammation rather than the intermittent nasal obstruction noted at the Veteran's separation from service.  The Board acknowledges M.T.R., D.O., has attributed the current disability to a surgery performed by VHA; however, this does not serve to establish the Veteran's service connection claim, which requires a nexus to an in-service injury or disease.  Treatment provided by VHA can establish entitlement to compensation in certain instances under 38 U.S.C. § 1151, but the Veteran has not raised a claim under that statute.

The Board notes the Veteran has not asserted, and the record does not otherwise establish, that the loss of the sense of smell began in service or shortly after service.  Rather, the Veteran has asserted he lost the sense of smell several years after service.  During the September 2016 hearing before the undersigned, the Veteran testified he did not lose the sense of smell until the 1980s, which is more than twenty years after his separation from service.  While the Veteran is competent to report observable symptomatology, he does not have the requisite skill or training to address a complex medical question such as the etiology of the loss of the sense of smell several years after service.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010) (noting evidence that indicates that the claimant's disability may be associated with service must go beyond the claimant's own statements suggesting that such a link exists).  In this instance, the Veteran's lay statements regarding the onset of the loss of the sense of smell several years after service provide further corroboration for the expert opinions that attribute the Veteran's current disability to post-service causes.

In sum, the preponderance of evidence is against a finding that the Veteran's loss of the sense of smell is the result of an injury or disease during active service.  The Veteran's lay statements establish this condition onset several years after service.  There is no competent evidence that links the current disability to the in-service injury.  Rather, the experts in this case have attributed the current disability to post-service causes.  


As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply, and the Veteran's service connection claim for a nasal disability, claimed as the loss of the sense of smell, must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).


ORDER

The service connection claim for a nasal disability, claimed as the loss of the sense of smell, is reopened.

Entitlement to service connection for the loss of the sense of smell is denied.





____________________________________________
M. HYLAND
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs