Citation Nr: 21075676 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 11-14 017 DATE: December 21, 2021 ORDER Entitlement to an effective date of January 28, 1997, but no earlier, for the award of service connection for loss of sense of smell is granted. FINDING OF FACT 1. The appellant's January 28, 1997 claim for service connection for a nose injury is liberally construed to encompass a claim for loss of sense of smell. 2. The January 28, 1997 claim is the first formal or informal claim received by the Department of Veterans Affairs (VA) for loss of sense of smell. CONCLUSION OF LAW The criteria for entitlement to an effective date of January 28, 1997, but no earlier, for the award of service connection for loss of sense of smell have been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION In a September 2017 decision, the Board of Veterans' Appeals (Board) granted an effective date of August 22, 2000 for entitlement to service connection for loss of sense of smell. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2019 order, the Court granted a January 2019 Joint Motion for Partial Remand, which vacated the Board's denial of an earlier effective date. In an August 2019 decision, the Board again denied an earlier effective date. In a March 2021 Memorandum Decision, the Court vacated and remanded the Board's August 2019 denial of an earlier effective date for loss of sense of smell. 1. Entitlement to an effective date prior to August 22, 2000 for the award of service connection for loss of sense of smell The appellant seeks an effective date prior to August 22, 2000 for the award of service connection for loss of senses of smell. He asserts that he filed a prior unadjudicated claim, and service connection is thus warranted with an earlier effective date. The appellant has argued that he is entitled to an effective date of the day after his separation from service based on a claim he contends he filed in 1991 but was lost by the VA. The appellant has argued that he filed for unspecified disability compensation benefits within a year of his separation from service, but argues that the paperwork was lost or misfiled by the VA. At his January 2017 Board hearing, the appellant testified that in January or February of 1991, he met with a counselor at a VA regional office. The appellant further testified that he believed the counselor initiated the process of filing claims for service connection for various disabilities, to include a low back disability. The appellant noted he submitted medical evidence throughout that time to the VA, and he believed the VA was processing his claim until he allegedly checked in 1997 and was told that he had no pending claims. As previously noted by the Board in September 2017, the first VA Form 21-526, Application for Compensation or Pension, of record in the Veteran's claims file was received by the VA on January 28, 1997. On that form the appellant indicated that he had previously filed a claim for educational assistance with the VA, but in the same section did not indicate having previously filed a disability compensation claim. He did, in a "remarks" section of the application, write the following: "request consideration for retroactive payment due to receiving wrong info from USAF while in service." In a letter accompanying his application he stated that at the time he separated from service he was told he could apply for disability benefits after he was discharged, but not at the time of his out processing. The letter does not mention applying for benefits in 1991. At a September 1999 Board hearing, the appellant agreed that in 1991 he had not filed a written claim as he had in 1997 but argued that in his seeking medical treatment at the VA within several months of his separation from service he had filed an informal claim. In a September 2001 statement, the appellant asserted that he met with a VA counselor in the winter of 1991 who aided him in obtaining health care and also was supposed to start processing his service connection claims. To that end, the counselor asked for letters from doctors, and the appellant noted he provided one in 1993, four in 1995, and one in 1996. The appellant also submitted three letters from the VA with respect to health care dated in 1991. A review of the Veteran's claims file shows letters faxed to the VA from the Veteran's private doctors in 1995 and 1996. One, addressed to the VA, contends that the Veteran's injury right ulnar nerve injury is "military-related." Another letter, addressed to "to whom it may concern", states that "it is not my position to request veteran's benefits except to state that his nasal condition is significant...." In a November 2001 statement, the Veteran's mother wrote that she drove the Veteran to see a VA counselor in the winter or spring of 1991 at which time the counselor completed paperwork for claiming unspecified service connection benefits, education benefits, and medical and dental entitlements. She did not, however, specify what service connection benefits the appellant claimed at that time. The Board does not doubt the statements of the appellant and his mother that within a year of his separation from service he first made contact with the VA. The record reflects that he began receiving VA medical services at that time, thus confirming his account of seeking VA services. However, there is no documentation in the record showing that the appellant filed a claim for disability compensation benefits in 1991.While the Board is sympathetic to the appellant's claim, he has offered no clear evidence that a claim for service connection for any disability was ever actually filed with any VA office prior to 1997. Additionally, the Board notes that in March 1996, the appellant was sent a letter from VA denying his claim for education benefits. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has held "[w]here the veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run." Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006). Thus, assuming arguendo that the appellant filed or thought he filed a service connection claim for various disabilities in 1991, the March 1996 letter provided implicit notice that these claims were denied and commenced the appeals period. In the January 2019 Joint Motion, the Board was cited for failing "to address whether the presumption of regularity was rebutted in this case as to the handling of a 1991 claim for benefits." The appellant's representative again repeated the assertion that a 1991 claim was filed by the appellant for service connection for multiple disabilities. The representative also cited to numerous errors within the Veteran's claims file suggesting his records had been misplaced or misfiled with those of another veteran. The Board acknowledges that, while multiple clerical errors are present within the Veteran's file, there remains an absence of clear evidence that a service connection claim for loss of sense of smell was ever filed in 1991. The Court has applied a presumption of regularity to all manner of VA processes and procedures. See Woods v. Gober, 14 Vet. App. 214, 220 (2000). In applying this legal principle to the present instance, the presumption of regularity applies to VA's actions following receipt of a claim. It is presumed that VA properly processed all claims submitted by the appellant or his representative, including affixing evidence of the date of receipt by VA, and associating the claim with the claims folder. Clear evidence is required to rebut the presumption of regularity. See id.; see also Baldwin v. Brown, 13 Vet. App. 1, 6 (1999), Mindenhall v. Brown, 7 Vet. App. 271 (1994). As already discussed above, when the appellant filed the January 1997 VA Form 21-526, he explicitly denied having previously filed any claim for VA compensation. Thus, because the Board finds no such claim was filed in 1991, it need not find address whether the presumption of regularity applied in the present case upon receipt of such a claim. The Board will next address the issue of whether there is a pending and unadjudicated claim for benefits for loss of sense of smell that could result in an effective date for service connection earlier than August 22, 2000. In January 1997, the appellant filed a claim for benefits for a nose injury. The records he submitted in support of his claim include a private treatment record that reflects diagnoses of a chronic nasal obstruction and a deviated septum, as well as a notation that he was "sometimes unable to smell." At a May 1997 VA nose and sinus examination, the examiner indicated that the appellant had decreased smelling ability as a result of decreased airflow through his nose. In August 1997, a VA regional office (RO) granted benefits for "deflection of the nasal septum" and assigned a 10 percent disability rating effective January 28, 1997. The RO noted that the evidence reflected that the appellant's "olfactory area ha[d] decreased smelling ability secondary to decrease[d] airflow through the nose." The appellant filed a Notice of Disagreement (NOD) with the disability rating and effective date assigned, and the RO confirmed the decision in a December 1997 Statement of the Case (SOC). In the SOC, the RO again noted that the appellant had a decreased sense of smell as a result of his condition. After the appellant perfected his appeal, the Board denied entitlement to a higher disability rating or an earlier effective date for a deflected nasal septum. The appellant did not appeal that decision. The appellant sought an increased disability rating for his nose condition in August 2000. The effective date for service connection for loss of smell currently assigned is date of that filing. The appellant has argued that the 1997 medical evidence reasonably raised an unadjudicated claim to service connection for loss of smell. The Board notes that the appellant filed his January 28, 1997 claim of a "nose injury," which he described in part as "can't breathe," pro se. The Board is mindful of its duty to liberally construe pro se pleadings. 38 C.F.R. § 20.202; Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir. 2009). The medical evidence as part of the appellant's claim included support that the Veteran's decreased air flow through his nose also had the result of decreasing his smelling ability. In light of the Veteran's claim of a nose injury and the medical evidence of record, the Board liberally construes the Veteran's January 1997 claim for service connection as encompassing a claim for loss of sense of smell. The Board further finds that although the claim was reasonably raised as part of the Veteran's claim filed in January 1997, it was not finally explicitly or implicitly adjudicated prior to August 2000. Thus, as there was a pending and unadjudicated claim for service connection filed on January 28, 1997, and the evidence supports that the Veteran had a loss of smell at that time secondary to his service-connected chronic ethmoid sinusitis (previously rated as defection of the nasal septum), the Board finds that the proper effective date for the grant of service connection is January 28, 1997. For the reasons discussed above, the Board does not find that an effective date prior to January 28, 1997 is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.