Citation Nr: 18152430 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 06-33 574 DATE: November 21, 2018 ORDER Service connection for a diminished sense of smell is granted. Service connection for a diminished sense of taste is granted. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT The Veteran has current diagnoses of partial loss of sense of smell and partial loss of sense of taste; he is competent to state that he perceived a loss of sense of taste and of smell in service, and his contemporaneous statements to VA examiners that his symptoms are unchanged since service are sufficient to establish a relationship between the current diagnoses and active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a diminished sense of smell have been met. 38 U.S.C. §§ 1110, 5107(b) (2012), 38 C.F.R. § 3.303(a) (2017). 2. The criteria for entitlement to service connection for a diminished sense of taste have been met. 38 U.S.C. §§ 1110, 5107(b) (2012), 38 C.F.R. § 3.303(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS In August 2014, the Veteran appeared at a hearing before the undersigned Veteran’s Law Judge. A transcript is in the claims file. These appeals have been before the Board of Veterans’ Appeals (Board) on previous occasions. On the most recent occasion, all three appeals were denied by the Board in May 2017. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Order, the Court vacated the May 2017 decision and remanded the appeals for action consistent with a Joint Motion for Remand (JMR). These appeals have now been returned to the Board for action consistent with the JMR. Service Connection Entitlement to service connection for a diminished sense of smell. Entitlement to service connection for a diminished sense of taste. The Veteran contends that he has a partial loss of his senses of smell and taste that began during service in Vietnam. He argues that this loss has persisted ever since that time and that he continues to experience diminished smell and taste. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Loss of smell or taste is not listed. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran’s personnel records show that his military occupation specialty (MOS) was a cook. However, these records also show that he had a secondary MOS and was assigned to a special forces unit. These records confirm Vietnam service. In a December 2003 statement that accompanied his initial claim, the Veteran said that he has had very little sense of smell or taste since he returned from service. He attributed this to gunpowder from exposure to artillery fire. The report of an March 2004 VA neurological examination states that the Veteran has had reduced smell and taste sensation. This was first noted in 1969, after the Veteran’s time in service. The symptoms had not changed since their onset. The neurological examination was normal, and the etiology of the mild reduction in taste and smell sensation was unclear. The examiner added that it was possible that the reduced sensations were due to gun smoke, but assigning an etiology based on current information would be purely speculative. The Veteran was provided a more detailed VA examination in April 2004. His reports of prolonged exposure to massed artillery fire were noted. The Veteran reported a gradual decrease in his sense of smell and taste. He had difficulty identifying some smells and noted that his food tastes flat. There had been no history of head injury, ear infection, sinusitis, ingestion of ototoxic drugs or meningitis. On examination, the tongue and mucosa were entirely free of any pathology, and the pharynx and hypopharynx were normal in appearance. On testing, the Veteran could identify eight of ten test odors accurately. He could identify sweet, sour, and bitter taste with no significant difficulty. The diagnosis was mild hyposmia, but the examiner doubted that the Veteran had any actual loss of sense of taste. This did not appear to be in any way directly service-connected. At a September 2009 Board hearing before a Veterans Law Judge who is now retired, the Veteran testified that although he had worked as a mail clerk during service in Vietnam, his quarters were in close proximity to an artillery battery. This battery was fired frequently, and he could feel the concussion of the blast when firing. While he was still in Vietnam, the Veteran noticed that much of his food seemed tasteless, and that over time his senses of taste and smell began to fade. The Veteran was provided an additional VA examination for loss of sense of smell or taste in April 2012. The examiner answered “yes” when asked if the Veteran now has or has ever been diagnosed with loss of sense of smell or taste. The results of the March 2004 VA examination and April 2004 VA examination to include the test results were noted. The Veteran denied any history of significant head trauma, sinusitis, meningitis or brain tumors. He reported that his loss of sense of taste and smell since leaving service had neither improved or worsened. The examiner checked the boxes on the examination report to confirm that the Veteran currently has a partial loss of sense of smell and a partial loss of sense of taste. There was no known anatomical or pathological basis for these conditions. No imaging or laboratory studies were performed. No additional qualitative smell or taste testing was conducted, although the eight out of ten results on the April 2004 test was noted, as was the qualitatively normal taste testing that was conducted at that time. In the examiner’s remarks, the objective evidence of mild hyposmia on testing was acknowledged. The Veteran’s decreased taste sensation was likely due to hyposmia, but there was no objective evidence of hypogeusia as a primary deficit. The examiner opined that while there was no alternative objective explanation for the Veteran’s hyposmia and perceived hypogeusia, any relationship of these symptoms to gunpowder exposure or any other service-related exposure or injury could not be established without resort to speculation. At the August 2014 hearing before the undersigned, the Veteran testified that he trained as a cook and also had training in radio repair, but several weeks after arriving in Vietnam he became the mail clerk and no longer acted as a cook. He was assigned to an artillery unit, which included some heavy artillery, and he was constantly exposed to these guns when they were fired. This exposure included a giant cloud of gunpowder with every round. After about five or six months in Vietnam, he noticed his food no longer tasted normal but began to taste flat. He also noticed diminished sense of smell. The Veteran believed that this was due to the gunpowder, although he also believed it could be due to micro concussions from the artillery fire. Another VA examination for loss of sense of smell and taste was conducted in July 2016. The examiner noted that the Veteran had been diagnosed with both hyposmia and hypogeusia. He states that he first noticed this in Hawaii after being in Vietnam. The Veteran believed that the decreased sensations were due to exposure to gunpowder. The examiner agreed that the Veteran currently had a partial loss of sense of smell and sense of taste without any known anatomical or pathological basis. No additional imaging or laboratory studies were performed, nor was any further qualitative testing conducted. The examiner opined that the Veteran’s hyposmia and subjective diminished sense of taste are less likely than not related to military service, whether due to exposure to gunpowder or other substances, or to any event. The examiner explained that the 2004 neurological examination was normal, and that there was no established data that gunpowder would cause damage to the sense of taste and smell. A December 2016 VA mental health treatment note reports that the Veteran has experienced problems with taste and smell since Vietnam. The Board finds that the evidence supports entitlement to service connection for the Veteran’s loss of sense of smell and taste. The April 2004 VA examination is the only examination to have conducted objective testing of the Veteran’s perceived loss of smell and taste. This testing confirmed that the Veteran has a slight loss of smell. Loss of taste was not confirmed on testing, and the examiner believed that the perceived loss of taste was actually a component of the loss of smell. However, both the April 2012 and the July 2016 VA examinations state that the Veteran has a current diagnosis of both partial loss of smell and partial loss of taste. Therefore, the requirement for a current diagnosis of the claimed disabilities have been met. The May 2018 JMR requested that the Board, among other things, assess whether the Veteran’s lay statements as to having experienced loss of taste and smell while in Vietnam and therefore on active duty were credible and competent and, if so, whether they provided a basis for service connection. A review of the Veteran’s statements shows some slight discrepancies as to whether his loss of smell and taste began in Vietnam or after his return from Vietnam. In fact, the initial March 2004 VA examination states that this began in 1969, which would be after the Veteran’s discharge from active service. However, the testimony presented at the September 2009 and the August 2014 hearings was consistent. On both occasions, he testified that he initially noticed the decreased taste and smell while still at the artillery base in Vietnam. The Board observes that this testimony was provided under oath. Furthermore, the transcripts are the exact words of the Veteran’s first-hand accounts, as opposed to the VA examiner’s second-hand recollections of these accounts. The testimony is credible, and the Veteran, as a layman, is competent to report his perceptions of decreased smell and taste. The Board finds that this constitutes lay evidence of the in-service incurrence of his claimed disabilities. The final criterion for service connection would that of medical evidence of a relationship between the inservice incurrence of his claimed loss of smell and taste, and the current diagnoses of these disabilities. The opinions expressed by the April 2004, April 2012, and July 2016 examiners all agreed that it would either be speculative to relate the Veteran’s current disabilities to exposure to gunpowder in service, or that there was no medical literature that would support such a possibility. The July 2016 examiner also opined that there was no evidence that the Veteran’s current disabilities were related to any other exposure or injury during service. However, as noted in the May 2018 JMR, none of the examiners addressed whether the Veteran’s reports of loss of smell and taste in service, if competent and credible, might be related to his current complaints, regardless of their etiology. The Board will find that remand for an additional opinion to address this possibility is not necessary. The March 2004 VA examiner noted the Veterans’ contentions that his symptoms were unchanged since their initial onset. The Veteran told the April 2012 VA examiner that his symptoms were unchanged since service. Both examiners appear to have accepted these statements at face value, and neither were not dismissed as being medically unlikely. The Board will resolve all doubt in the Veteran’s favor, and find that these statements are sufficient to establish entitlement to service connection. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a); see Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that, in the context of service-connected disability compensation, “the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty”). REASONS FOR REMAND The appeal for entitlement to service connection for bilateral hearing loss is remanded. The May 2018 JMR noted that as part of April 2016 remand instructions, the Board had noted the Veteran was competent to report his symptoms and history, and these reports must be specifically acknowledged and considered in formulating opinions. However, when the July 2016 VA examiner opined it was less likely than not that the Veteran’s bilateral hearing loss was related to noise exposure during military service, she neglected to address the Veteran’s report that he noticed hearing loss within one year of separation from service. This is important, as hearing loss noted within a year of discharge from service is presumed to have been incurred in service. 38 C.F.R. §§ 3.307, 3.309 (2017). The JMR directed the Board to obtain a new VA medical opinion that addressed the Veteran’s testimony that he had hearing loss within one year following separation from service, and whether his bilateral hearing loss is related to service. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016) (finding a VA examination to ben inadequate for not addressing the Veteran’s testimony that hearing loss began either during service or shortly after separation from service). Therefore, the matter is REMANDED for the following action: Schedule the Veteran for a VA audiological examination, by a physician who has not previously examined him, to determine the etiology of his bilateral hearing loss. All indicated studies and clinical tests should be accomplished, and all clinical findings should be reported in detail. Following examination of the Veteran and review of the claims file, the examiner is to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral hearing loss is related to military service. A comprehensive rationale for all opinions must be included in the examination report. If the examiner cannot provide the requested opinion without resorting to speculation, so state, and provide the reasons why an opinion would require speculation. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. **In particular, the examiner must comment upon the Veteran’s August 2014 testimony that his hearing loss symptoms began within one year after separation from service.** Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel