Citation Nr: 21002179 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 17-47 943 DATE: January 12, 2021 ORDER Entitlement to service connection for a disability manifested by a loss of sense of smell is denied. Entitlement to a disability rating greater than 20 percent prior to April 9, 2019, and greater than 40 percent thereafter, for a lumbosacral spine disability has been withdrawn. REMANDED Entitlement to service connection for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include anxiety and depression, is remanded. Entitlement to service connection for a cardiac disability, to include coronary artery disease or ischemic heart disease, including as due to in-service chemical exposure, is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran does not experience any disability manifested by a loss of sense of smell which is related to active service. 2. In statements made on the record at his January 28, 2020, Board hearing, prior to the promulgation of a decision in this appeal, the Veteran withdrew his appeal for a disability rating greater than 20 percent prior to April 9, 2019, and greater than 40 percent thereafter, for a lumbosacral spine disability; this withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a disability manifested by a loss of sense of smell have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2019). 2. The criteria for withdrawal of entitlement to a disability rating greater than 20 percent prior to April 9, 2019, and greater than 40 percent thereafter, for a lumbosacral spine disability by the appellant (or his or her authorized representative) have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1969 to November 1973. This appeal has a long procedural history. Most recently, a videoconference Board hearing was held in January 2020 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Having reviewed the record evidence, to include the Veteran’s hearing testimony, the Board finds that the issues on appeal should be characterized as stated above. Entitlement to service connection for a disability manifested by a loss of sense of smell The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of service connection for a disability manifested by a loss of sense of smell. The Veteran essentially contends that he lost his sense of smell during active service and experienced continuous post-service disability. The record evidence does not support his lay assertions and hearing testimony concerning the existence of current disability due to his claimed loss of sense of smell which could be attributed to active service. The available service treatment records show that, at his pre-enlistment physical examination in July 1969, prior to his entry on to active service in November 1969, the Veteran denied all relevant pre-service medical history and clinical evaluation was within normal limits. His medical history and clinical evaluation were unchanged at his separation physical examination in April 1973. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting service connection for a disability manifested by a loss of sense of smell. Contrary to the lay assertions and hearing testimony, the record evidence shows that the Veteran does not experience any current disability due to his claimed loss of sense of smell which could be attributed to active service. The Veteran’s voluminous post-service VA outpatient treatment records show only that he reported losing his sense of smell for several months when he established care with VA in approximately 2013. The record otherwise does not indicate that he complained or sought treatment for his claimed disability manifested by a loss of sense of smell at any time in the decades since his service separation. A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced a disability manifested by a loss of sense of smell at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence – other than the Veteran’s lay assertions – that he experienced any disability due to his claimed loss of sense of smell which could be attributed to active service. In summary, the Board finds that service connection for a disability manifested by a loss of sense of smell is not warranted. Dismissed Claim Entitlement to a disability rating greater than 20 percent prior to April 9, 2019, and greater than 40 percent thereafter, for a lumbosacral spine disability The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2019). Withdrawal may be made by the appellant or by his or her authorized representative. Id. In Acree, the United States Court of Appeals for the Federal Circuit held that the withdrawal must be explicit, unambiguous, and done with a full understanding of the consequences of such action by the appellant and the subsequent Board dismissal must include findings as to all three elements. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018), 2018 U.S. App. LEXIS 14959, adopting the rule of DeLisio v. Shinseki, 25 Vet. App. 45, 57-58 (2011). As noted in the Introduction, after the Veteran perfected a timely appeal and with a full understanding of the consequences of such action, he requested that the issue of entitlement to a disability rating greater than 20 percent prior to April 9, 2019, and greater than 40 percent thereafter, for a lumbosacral spine disability be withdrawn in statements made on the record at his January 2020 Board hearing. See Board hearing transcript dated January 28, 2020, at pp. 2. The Board finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he continued to pursue his appeal with respect to the remaining claims addressed in this decision. The Board also finds it highly persuasive that the Veteran knew the consequences of this withdrawal because he was represented by his service representative at the time when he withdrew his appeal for a disability rating greater than 20 percent prior to April 9, 2019, and greater than 40 percent thereafter, for a lumbosacral spine disability. Having reviewed the record evidence, the Board finds that withdrawal of this claim was explicit, unambiguous, and done with a full understanding of the consequences of such action by the Veteran. See Acree, 891 F.3d at 1009. Accordingly, the claim of entitlement to a disability rating greater than 20 percent prior to April 9, 2019, and greater than 40 percent thereafter, for a lumbosacral spine disability is dismissed. REASONS FOR REMAND Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include anxiety and depression, and for a cardiac disability, to include coronary artery disease or ischemic heart disease, including as due to in-service chemical exposure, is remanded. The Veteran finally contends that he incurred an acquired psychiatric disability other than PTSD, to include anxiety and depression (which he characterized as anxiety and depression), and a cardiac disability, to include coronary artery disease or ischemic heart disease, during active service. He alternatively contends that unspecified in-service chemical exposure(s) caused or aggravated (permanently worsened) his cardiac disability. The record evidence shows ongoing complaints of and treatment for multiple acquired psychiatric disabilities other than PTSD, to include anxiety and depression. These records also show a long history of cardiac problems, to include complaints of and treatment for coronary artery disease and ischemic heart disease. The Board notes that, to date, the AOJ has not scheduled the Veteran for examinations or obtained medical nexus opinions to determine the nature and etiology of either of these disabilities. The Board observes in this regard that VA’s duty to assist Veterans in providing examinations or obtaining medical nexus opinions where necessary is a very low threshold. Thus, the Board finds that, on remand, the AOJ should obtain medical nexus opinions concerning the nature and etiology of both of these current disabilities. The Board acknowledges that, in a letter dated on January 29, 2020, and date-stamped as received by VA on February 3, 2020, C. L., M.D., the Veteran’s long-time primary care physician, opined that it was more likely than not that the Veteran’s coronary artery disease is related to active service. The rationale for this opinion was based on what the Veteran reported to this clinician concerning his medical history, including an in-service history of jet fuel exposure. The Court has held that the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. Wilson v. Derwinski, 2 Vet. App. 614 (1992). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court also has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Dr. C. L.’s opinion is based on what the Veteran reported to him concerning his medical history and does not appear to reflect “clinical data or other rationale.” Thus, the Board finds that this opinion is not probative on the issue of whether the Veteran’s cardiac disability is related to active service. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s acquired psychiatric disability, to include anxiety and depression. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that an acquired psychiatric disability, to include anxiety and depression, if present, is related to active service. A rationale must be provided for any opinion(s) expressed. 2. Forward the claims file to an appropriate clinician for an opinion concerning the nature and etiology of the Veteran’s cardiac disability, to include coronary artery disease or ischemic heart disease, including as due to in-service chemical exposure. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a cardiac disability, to include coronary artery disease or ischemic heart disease, if present, is related to active service or any incident of service, including as due to in-service chemical exposure. A rationale must be provided for any opinion(s) expressed. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, Counsel 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.