Citation Nr: 21011211 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-22 164 DATE: March 1, 2021 ORDER Entitlement to service connection for loss of sense of smell (anosmia) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s anosmia began during his active military service or is otherwise related or attributable to his service, including to any injury, disease or event during his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for anosmia. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to December 1983. This claim most recently was before the Board of Veterans' Appeals (Board) in September 2020 when it was remanded so the Agency of Original Jurisdiction (AOJ) could further assist the Veteran in developing it – including especially by obtaining a needed addendum medical opinion. There was compliance, certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for loss of sense of smell (anosmia) The Veteran attributes his anosmia to his military service and, specifically, to exposure to gas during annual training. Service connection may be granted for a disability resulting from a disease or an injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(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’ – the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.   As already conceded in the Board’s September 2020 remand, there is no disputing the Veteran has total loss of any sense of smell (anosmia). He received this confirmatory diagnosis following VA testing in April 2019, but he says he has had this condition much longer, ever since 1982, when he was in the military. The Veteran’s service treatment records (STRs) and his testimony before this Board also confirm his exposure to gas during his military training, one-time treatment for rhinorrhea in January 1981, and a craniofacial injury in February 1982. However, there is not also the required attribution of his anosmia to any of that activity or unfortunate happenings during his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The primary reason for again remanding this claim in September 2020 was to obtain still more medical comment on this determinative issue of causation, including in terms of whether the Veteran’s chronic allergic rhinitis (i.e., seasonal allergies): a) is the cause of his loss of sense of smell, so anosmia, and b) was incurred in or aggravated by his military service. So, the Board’s remand of this claim partly was to address any possible association with the rhinorrhea he had in service. Despite that additional remand of this claim, however, there still is no medical support on record attributing the Veteran’s anosmia to his service. There still are no medical opinions, STRs, or post-service treatment records supporting his claim of a relationship or correlation of his anosmia to his service. His April 2019 VA examinations for sinusitis and anosmia diagnosed chronic allergic rhinitis with hypertrophy of turbinates and total anosmia. None of these conditions, however, were attributed to his February 1982 craniofacial injury, which is noted throughout the examinations as a single event without residuals or further significance. The examiner opined that, although prolonged exposure to noxious fumes is associated with loss of smell, the Veteran’s one-time exposure was insufficient to cause that effect.   The Board’s September 2020 remand order accepted that examiner’s analysis, though also noting the Veteran underwent gas exposure training annually – so, more than once, but not often enough for the prolonged exposure required to cause anosmia. However, the Board nonetheless remanded to claim to determine whether the Veteran’s current allergic rhinitis is the same rhinorrhea he had in service, thereby possibly establishing a nexus between his service and current anosmia. But the resulting November 2020 medical opinion obtained, on remand, found these to be two separate, unrelated conditions. Specifically, the examiner confirmed the single episode of rhinorrhea in January 1981 was without further treatment, complaints, or noted problems at exit from service. The examiner opined that the 1981 rhinorrhea was a resolved illness. The VA examiners’ assessments (both initially in April 2019 and more recently in November 2020) are unrefuted by any other medical evidence of record and determining whether the anosmia being claimed is the result of the Veteran’s service or anything that occurred during it is beyond his lay competence. Whether medical versus lay evidence is needed to support a claim is determined on a case-by-case basis, so fact specific, and dependent on the type of condition being claimed insofar as whether complex or instead simple. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). See also 38 C.F.R. § 3.159(a)(1) and (a)(2). Thus, the VA examiners’ opinions on this determinative issue of causation – especially when considered in combination, are more probative than the Veteran’s unsubstantiated lay assertions to the contrary. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation).   For these reasons and bases, the Board finds that the preponderance of evidence is against the Veteran's claim of entitlement to service connection for anosmia and his appeal consequently must be denied. There is no reasonable doubt to be resolved in his favor concerning this posited correlation. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, Associate 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.