Citation Nr: 20002750 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 17-64 411 DATE: January 14, 2020 ORDER Entitlement to service connection for residuals of facial injuries, to include loss of sense of smell is granted. Entitlement to service connection for residuals of facial injuries, to include loss of sense of taste is granted. REMANDED Entitlement to service connection for residuals of facial injuries, to include an aneurysm and memory loss is remanded. FINDINGS OF FACT 1. The Veteran’s loss of sense of smell is as likely as not etiologically related to his military service. 2. The Veteran’s loss of sense of taste is as likely as not etiologically related to his military service. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran’s favor, the criteria to establish service connection for loss of sense of smell have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria to establish service connection for loss of sense of taste have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1958 to February 1961. A Board of Veterans’ Appeals (Board) hearing was held in October 2019 via videoconference. A transcript of this hearing is contained within the claims file. Service Connection Generally, service connection may be granted for a disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease 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). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 1. Entitlement to service connection for residuals of facial injuries, to include loss of sense of smell 2. Entitlement to service connection for residuals of facial injuries, to include loss of sense of taste The Veteran is seeking entitlement to service connection for loss of his senses of smell and taste. The Veteran contends that he participated in the Marine Corp boxing program during his military service. The Veteran concedes that he did not report any head injuries during his military service, but he believes that he most likely sustained multiple head injuries while boxing, and that these head injuries caused his current loss of senses of smell and taste. Regarding the existence of a current disability, the Veteran’s VA medical treatment records show that the Veteran has complained of the loss of his senses of smell and taste. Specifically, the Veteran’s post-service VA medical treatment records show that the Veteran first reported to the VA in March 2012 complaining of having no smell or taste for the two years prior to the March 2012 visit. In March 2012, the Veteran was diagnosed with loss of smell and taste. Thus, there is evidence of current disabilities. A May 2012 note shows that the Veteran has a history of cerebral aneurysm status post craniotomy right-sided from 2011. A magnetic resonance imaging (MRI) scan was taken during this May 2012 visit. The MRI scan contained an impression of old infarcts in the left posterior occipital lobe and right anterior temporal lobe, moderately advanced chronic deep white matter ischemic changes, greatest in the parietal lobes, and no mass or abnormal enhancement in the internal auditory canals. Regarding an in-service injury, the Veteran’s service treatment records (STRs) are silent as to complaints of loss of any senses or reports that the Veteran suffered an in-service head injury. The Veteran’s February 1958 enlistment examination indicates a normal head, face, neck and scalp, but it does indicate a quarter-inch scar in the center of the Veteran’s forehead with no further explanation of the scar. Additionally, the Veteran’s February 1961 separation examination shows normal head, face, neck and scalp. Further, the Veteran’s military personnel records (MPRs) are silent as to the Veteran’s participation in a boxing program during his military service. Regarding a nexus between the Veteran’s claimed in-service injuries, in February 2014, the Veteran was afforded a VA examination. The February 2014 examiner confirmed the Veteran’s diagnoses of hyposmia (reduced ability to detect odors) and hypogeusia (decrease in sense of taste). At the February 2014 VA examination, the Veteran reported having first noticed his loss of smell and taste in 1982. The February 2014 examiner opined that the Veteran’s claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The February 2014 examiner provided the rationale that during the Veteran’s service, the Veteran was a boxer and had several fights during which he sustained blows to the head, the Veteran has had progressive, gradual loss of smell and taste since being discharged. The February 2014 examiner noted that the Veteran does not have any scars (surgical or otherwise) related to any conditions or to treatment of any conditions discussed here. The February 2014 examiner concluded by stating that it is at least as likely as not that the repeated head trauma that the Veteran sustained during boxing contributed to his loss of smell and taste. Although the February 2014 VA examiner provided a positive nexus opinion, the Agency of Original Jurisdiction (AOJ) issued a rating decision in February 2014 denying service connection for loss of senses of smell and taste because the AOJ found that the February 2014 opinion was based solely on the Veteran’s reported history of boxing, which was not corroborated in the Veteran’s STRs or MPRs. In March 2014, the Veteran submitted newspaper clippings that included a photograph of two men fighting in a boxing ring with full boxing gear. The Veteran asserts that this is a photograph of him in the boxing ring during a championship match and that this photograph was in a military newsletter. The Veteran contends that this photograph of him along with this MPRs and lay statements should be sufficient to prove that he participated in the boxing program during his military service. In September 2017, the AOJ submitted a statement of the case (SOC) continuing the denial of service connection and not accepting the newspaper article as evidence that the Veteran participated in a boxing program during his military service because the newspaper photograph only had a last name underneath the photograph and not the Veteran’s full name and the newspaper article did not have a date. The Board notes that the newspaper article is not dated and beneath the photograph of the two boxers is a description of the photograph, containing only the Veteran’s last name as a description of one of the boxers. While these articles only contain the Veteran’s last name, the Veteran’s MPRs contain a photograph of the Veteran, in comparing that MPR photograph with the newspaper clipping photograph provided by the Veteran, the Board notes an undeniable resemblance between the men in the two photographs. Additionally, the Board notes that these newspaper clippings appear to be from a military newsletter, as claimed by the Veteran, due to the language contained within the articles surrounding the boxing photograph. As previously mentioned, these records are not dated, and they do not actually reflect whether the Veteran boxed during active service, but they do appear to be time appropriate and show that the Veteran boxed at some point during his military service as he was in full boxing attire and a military newsletter was reporting on this boxing championship. Thus, resolving all reasonable doubt in the Veteran’s favor, it is conceded that the Veteran boxed during active service. In this case, the Board finds no reason to question the veracity of the Veteran’s statement concerning his involvement with the boxing program during his military service. See Charles v. Principi, 16 Vet. App. 370, 374 (2002); Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993). As the Veteran's in-service boxing is conceded, and as the evidence, including the February 2014 positive nexus opinion, shows that head blows while boxing can ultimately result in residuals including loss of senses of smell and taste, it is the Board's conclusion that service connection is warranted for loss of senses of smell and taste. All reasonable doubt was resolved in the Veteran's favor in making this decision. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND Entitlement to service connection for residuals of facial injuries, to include an aneurysm and memory loss The Veteran is seeking entitlement to service connection for residuals of facial injuries that he received during his military service, to include an aneurysm and memory loss. The Veteran contends that his participation in the boxing program during his military service contributed to causing his aneurysm and his subsequent current memory loss disabilities. The Veteran’s post-service VA medical treatment records show that the Veteran had an aneurysm in 2010 requiring surgery in 2011. The Veteran has also reported memory loss following his aneurysm. Thus, there is evidence of current disabilities. As for an in-service injury, as discussed above, the Veteran’s participation in the boxing program during his military service is conceded. Thus, there is evidence of an in-service injury. There are evidence of current disabilities, evidence of an in-service injury, and an indication of nexus. However, to date, the Veteran has not been afforded a VA examination to determine if his aneurysm or memory loss disabilities or any other facial injuries are related to his military service. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). Thus, remand is necessary to afford the Veteran a VA examination for these disabilities. Additionally, the Veteran’s private medical treatment records have not been associated with the Veteran’s claims file. Specifically, private medical treatment records from Mount Carmel East, containing relevant information concerning the Veteran’s aneurysm from his outside neurologist that he saw prior to reporting to the VA. Thus, remand is also necessary for the AOJ to attempt to obtain these records. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of all outstanding records from the VA Medical Center and its associated clinics where the Veteran receives treatment. If any pertinent private treatment has been rendered, specifically to include medical records from Mount Carmel East, and any other private medical treatment records that the Veteran identifies as providing information about the Veteran’s aneurysm, the surgery and his claimed memory loss, the Veteran’s assistance in obtaining these records should be requested as needed. All attempts to obtain records should be documented in the claims folder. 2. Schedule the Veteran for a VA examination with an examiner of appropriate expertise to ascertain the current nature and etiology of the Veteran’s residuals of facial injuries, to include an aneurysm and memory loss. All necessary tests should be conducted. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address the following: (a.) Whether it is at least as likely as not (50 percent or greater likelihood) that any current residual of facial injury, to include the Veteran’s aneurysm and memory loss, had its onset in service or is otherwise related to active service; (b.) The examiner should provide a detailed rationale for the opinion, including a discussion of the evidence of record and medical principles which led to the conclusions reached. If an opinion cannot be provided without resort to speculation, the examiner should explain why it is not possible to provide an opinion; (c.) It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology.   3. After the development requested has been completed, the AOJ should review the expanded record to ensure complete compliance with the directives of this REMAND. If any report is deficient in any manner, implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.