Citation Nr: 21070757 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-33 951 DATE: November 26, 2021 REMANDED Entitlement to service connection for decreased sense of smell, or hyposmia, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from March 1992 to September 2006, from October to December 2007, from March to April 2008, from July to August 2008, from March 2010 to April 2011, and from October 2011 to October 2014. She is Gulf War Veteran. In September 2015, the Veteran had a hearing before a RO Decision Review Officer (DRO). A transcript of the hearing is of record. In May 2019, the Veteran had a Board of Veterans' Appeals (Board) videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a November 2019 decision, the Board, in pertinent part, denied service connection for decreased sense of smell. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2020, the Veteran and VA (the parties) submitted to the Court a Joint Motion for Partial Remand, asking the Court to vacate, and to remand for additional action. In a November 2020 order the Court granted the JMPR. In a May 2021 decision, the Board indicated that it was remanding this issue for an additional medical opinion. It noted that the Veteran reported that she lost nearly all sense of smell after her deployment to Saudi Arabia and that the Veteran had treatment in service for sinusitis. It observed that June 1994 sinus x-rays showed mucosal thickening consistent with chronic sinusitis changes. The Board noted that on VA examination in June 2015, the Veteran reported that over an eight year period friends told her that she did not notice the smells that other people did. She stated that in service in about 2000 she worked around jet fuel. The examiner opined at that time that the Veteran's hyposmia was less likely than not related to her service, including the sinusitis treated in service. The Board further observed that in August 2019, D. J. H., Ph.D., expressed the opinion that it was at least as likely as not that multiple disorders that the Veteran had, including olfaction loss, resulted from events during her service. The Board noted that when reaching the opinion regarding the likely etiology of the Veteran's hyposmia, the 2015 VA examiner relied on a finding that the Veteran's sinusitis in service was acute and non-complicated. The Board noted that that finding appeared to be inconsistent with the sinus x-rays in service in 1994 that showed mucosal thickening consistent with chronic sinusitis changes. The Board stated that it was remanding the issue for additional medical review of the file, including careful consideration of all evidence regarding the condition and illness involving the Veteran's sinuses, and for an opinion as to the likelihood of a relationship between sinusitis in service and the current hyposmia. The Board requested that the Veteran's claims file be provided to an otolaryngologist or other appropriate physician for review. The reviewer was asked to consider, in particular, the Veteran's history of sinusitis and other sinus conditions during and after her active service periods. The reviewer was requested to provide an opinion as to whether it was at least as likely as not that sinusitis and/or other sinus conditions during the Veteran's service proximately caused or resulted in her current hyposmia. In September 2021, the Veteran was afforded a VA examination with the requested opinions being rendered. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that concomitant nasopharyngeal congestion associated with sinus conditions/sinusitis may blunt one's sense of taste and smell but this should not be misconstrued as true hyposmia or anosmia. True anosmia or hyposmia were mediated through the olfactory cranial nerve unless due to direct injury or toxin. There was no evidence of true hyposmia in the medical records. The examiner noted that the Veteran did score in the 25th percentile on a qualitative test administered for the purposes of the DBQ. Nonetheless, these were subjective tests. He indicated that it was less likely than not that the Veteran had true hyposmia as due to claimed chronic sinusitis. He stated that the Veteran's condition would be termed subjective hyposmia and it would be due to or incurred in fluctuations of chronic sinusitis (if conceded) but should not be misconstrued as true hyposmia. He noted that there was no current imaging confirming chronic sinusitis. He also observed that there was no evidence of chronicity since service and the events of 1994 appeared to have been acute and self-limited with only an additional URI in 1996. He stated that it was more likely than not that the Veteran's current sinusitis condition, episodic acute versus chronic, was due to or incurred in the episode in 1994. The examiner indicated that the Veteran had numerous years of additional service without evidence of chronic sinusitis, which was unlikely if present. He noted that the 2015 opinion would be considered expert, as it was performed by an ENT who also performed nasal endoscopy, noting normal mucosa and turbinates. He observed that the Veteran scored in the 25th percentile for hyposmia in women. It was that ENTs opinion that this was not related to the single episode of sinusitis while in service. The examiner stated that though the 1994 records did suggest mild maxillary sinusitis on imaging, this would not be significant enough to impart any impact on olfactory function, including the Veteran's subjective complaints. The examiner indicated that there was no evidence of continuity since service or until in or around 2015. He stated that in summary, it was less likely than not that the Veteran's current sinusitis condition was due to or incurred in events in 1994 while on active duty. It was also less likely than not that any current hyposmia would be due to events in service. Even if due to current sinusitis, the sinusitis was less likely than not due to events in service. The gap in care was significant, as chronic sinusitis tended to progress with more severe and frequent symptoms, often requiring treatment. There was no evidence of continuity during active duty or after service, until in or around 2015. The examiner further opined that the claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service- connected conditions. The examiner provided the same rationale as above when rendering this opinion. The examiner did not provide an opinion as to aggravation by a service-connected disability. In his November 2021 written argument, the Veteran's representative noted that with regard to the 2015 nasal endoscopy, the ENT specialist had not yet completed his otolaryngology residency, raising a question as to their being a specialist just yet, earning board certification in 2017. The representative also noted that a neurological component had not yet been fully eliminated. It was also noted that the Veteran was a Persian Gulf veteran. The Board notes that further development is required on several fronts. The Board observes that the Veteran is a Gulf War veteran and that the provisions of 38 U.S.C. § 1117 apply. In this regard, service connection would be warranted for an undiagnosed illness if the criteria have been met. The Veteran, at the time of the 2015 VA examination, was diagnosed as having hyposmia, a diagnosed illness. In contrast, at the time of the September 2021 VA examination, the examiner indicated that the Veteran did not have true hyposmia. As such, the matter remains unresolved as to whether the Veteran has a diagnosed illness for Gulf War purposes. The Board further observes that the examiner's opinions also contain several discrepancies. The September 2021 examiner at one point stated that that it was more likely than not that the Veteran's current sinusitis condition, episodic acute versus chronic, was due to or incurred in the episode in 1994. At another point, the examiner stated that it was less likely than not that the Veteran's current sinusitis condition was due to or incurred in events in 1994 while on active duty. The Board is not at liberty to choose one opinion over the other. Finally, while the examiner provided an opinion that the Veteran's claimed condition was less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected conditions, he did not address the question of aggravation. Dr. H., in her August 2019 letter, indicated that it was her professional opinion that the Veteran's military service and her musculoskeletal and neurological conditions, which had manifested in the form of painful and/or compromised shoulder, wrist, neck, back, knee, sensory, and mental health exhibited a causal link. As such, clarification is warranted with regard to the Veteran's service-connected disabilities and their impact on her sense of smell. The matter is REMANDED for the following action: If available, return the claims folder to the examiner who provided the September 2021 opinions. Following a review of the file, the examiner is requested to render the following opinions: Indicate whether the Veteran's documented loss of smell either (i) can be attributed to known clinical diagnoses, or (ii) constitutes an undiagnosed illness or medically unexplained chronic multisymptom illness pursuant to 38 C.F.R. § 3.317. As to any clinically diagnosed loss of smell disorder, opine as to whether it is at least as likely as not (50 percent probability or more) that such disorder was incurred in or aggravated during service. When rendering this opinion, the examiner must address whether the Veteran's inservice sinusitis was acute and transitory or chronic in nature. The examiner should also address and discuss the Veteran's reports of continuous symptoms of loss of smell since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The examiner should also note what impact, if any, the June 2015 VA examiner's not being an ENT specialist at the time of the examination has upon the weight being placed on that opinion when he rendered the September 2021 opinion. If any diagnosed smell disorder is not related to service, is it as likely as not (50 percent probability or greater) that any current such disorder is caused by a service-connected disability, to include, but not limited to, radiculopathy? (Continued on the next page) If not, is it at least as likely as not (50 percent probability or greater) that any current diagnosed smell disorder is aggravated by any service-connected disorder, including, but not limited to, radiculopathy? If aggravation is found, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected disorder before the onset of aggravation. Complete detailed rationale is requested for each rendered opinion. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.