Citation Nr: 1826596 Decision Date: 05/03/18 Archive Date: 05/14/18 DOCKET NO. 14-41 679 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for anosmia. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from July 1969 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Houston, Texas. In December 2017, the Veteran testified via video before a Veterans Law Judge. A transcript of this hearing has been added to the record. FINDING OF FACT The evidence is in equipoise on whether the Veteran has a current diagnosis of anosmia which is etiologically related to service. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for service connection for anosmia have been approximated. 38 U.S.C. §§ 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b). As the Board is granting the claim for service connection, the claim is substantiated and there are no further actions necessary on the part of VA to notify or assist. Wensch v. Principi, 15 Vet App 362, 367- 68 (2001); see also 38 U.S.C.A. § 5103A (a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"). The Merits of the Claim The Veteran seeks service connection for anosmia, or loss of sense of smell. He asserts his anosmia results from chemical exposure in service, including exposure to lead, paint, paint thinner, and other chemicals. Service connection will be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection requires competent evidence showing (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Private treatment records confirm a diagnosis of anosmia. Thus, the Veteran has a current disability. Service treatment records do not reflect a diagnosis of the condition. However, the Veteran has contended that he worked in the engine rooms aboard the USS Lyman K. Swenson and was exposed to fuels and solvents that burned his nose when he breathed. He also reported having a decreased sense of smell since that time. The Veteran is competent to describe his job duties and is also competent to describe symptoms such as a decreased sense of smell. Private treatment records reflect that the Veteran reported that he had not had the sense of smell for many years now and described exposure to paint fumes and thinners during the 1970s and described decreased smell since then. An October 2012 private treatment record noted that the Veteran "could have multiple contributing factors to his anosmia." The Veteran submitted a November 2017 private treatment note that reflects the Veteran reported the onset of loss of smell to be 45 years ago. The Veteran also indicated he had a significant decline in sense of smell when he was in the service and was exposed to paint primer all the time for up to two years and the ventilation was very poor. The private physician concluded that the Veteran's severe hyposmia was most likely due to severe chemical exposure although intracranial pathology could not be ruled out completely and the private physician recommended a magnetic resonance imaging test (MRI). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the etiology of any current anosmia, particularly in light of the indication that there could be other contributing causes. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Here, the Veteran has consistently and credibly reported that his symptoms began during his service. Furthermore, the Veteran's private physician indicated that the cause was "most likely" the severe chemical exposure. To the extent to which the private physician suggested further MRI testing, the Veteran has testified that such testing is not possible as he has a pacemaker. Thus, remand for further examination to conduct such testing would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Therefore, resolving any reasonable doubt in the Veteran's favor, the Board finds that service connection for anosmia is warranted and the Veteran's claim is granted. ORDER Service connection for anosmia is granted. _________________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs