Citation Nr: 21014834 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-44 068 DATE: March 15, 2021 ORDER Entitlement to service connection for loss of smell is granted. Entitlement to service connection for seizure disorder is granted. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his loss of smell is casually related to his active service. 2. Resolving reasonable doubt in the Veteran’s favor, his seizure disorder is casually related to his active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for loss of smell have been met. 38 U.S.C. §§ 1110, 1154, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). 2. The criteria for entitlement to service connection for seizure disorder have been met.38 U.S.C. §§ 1110, 1154, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1970 to May 1973, to include service in the Republic of Vietnam. For his service, the Veteran was awarded a Combat Infantryman Badge (CIB). This case comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2018, at which time the issues on appeal were remanded for additional development. The case has been returned to the Board for further appellate action. There has been at least substantial compliance with the Board's remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The Veteran asserts that his loss of smell and seizure disorder were caused by his active service. Specifically, the Veteran asserts that he sustained a head injury, as a result of debris hitting his skull when he tripped a booby trap in Vietnam, which resulted in his loss of smell and seizure disorder. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board notes that lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). At the outset, the Board notes that the Veteran’s service treatment records (STRs) are absent of any complaint of, treatment for, or diagnosis of seizure disorder or loss of smell. However, the Veteran’s personnel records indicate that his military occupational specialty (MOS) was light weapons infantry. The Veteran’s records also reveal that during his time in Vietnam he primarily served as a Team Leader in an infantry unit and was awarded a CIB for his service during that period. As such, the Board finds that the Veteran’s statements regarding his head injury in Vietnam are consistent with the circumstances of his service. See 38 U.S.C. § 1154. Loss of Smell In a January 2010 traumatic brain injury (TBI) consultation, the Veteran reported a loss of sensation of smell. In February 2012, a private physician, Dr. P.K., opined that the Veteran’s loss of smell was at least as likely as not related to a TBI that was the result of a land mine blast during his time in Vietnam. In October 2015, the Veteran was afforded a VA examination for loss of sense of smell. At that time, the Veteran reported that he had a complete loss of smell since a head injury in Vietnam. The VA examiner noted that the Veteran had a diagnosis of anosmia since 1971. The VA examiner also indicated that a known anatomical or pathological basis for loss of smell was head injuries, as they were known to damage the olfactory nerves. However, the VA examiner assessed that the Veteran’s loss of smell was less likely than not proximately due to or the result of his service-connected conditions. The VA examiner reasoned that evaluation for a TBI did not demonstrate that one had occurred. In June 2019, the Veteran was afforded another VA examination for loss of sense of smell. At that time the Veteran again reported that he had a loss of smell after a head injury in Vietnam. The VA examiner reported that the Veteran had a diagnosis of anosmia. The VA examiner also noted that the Veteran’s loss of sense of smell was likely secondary to an injury and blast while in service. However, the VA examiner ultimately opined that the Veteran’s loss of smell less likely was incurred in, caused by, or otherwise etiologically related to his military service, to include his in-service head injury. The VA examiner reasoned that the Veteran’s STRs did not indicate care for this condition, his separation examination was silent for the condition, and his 2007 MRI noted a small temporal occipital mass of a solid nature that could contribute to the condition. The Board notes that in June 2019, the same VA examiner provided a positive etiological opinion for the Veteran’s headaches. The VA examiner noted that the Veteran’s headache condition was not reported at separation but stated that it was quite logical to believe a land mine blast with loss of consciousness would precipitate a headache and migraine condition. The Board finds that the October 2015 and June 2019 VA opinions, as they relate to the etiology of the Veteran’s loss of smell, are inadequate for adjudication purposes. In that regard, the VA examiner’s failed to incorporate the Veteran’s lay statements, completely disregarded the February 2012 positive etiological opinion provided by Dr. P.K, and, used the absence of evidence of an in-service injury to support their conclusions. As those opinions are inadequate, they cannot serve as the basis for a denial. The Board also finds that the February 2012 private opinion, by Dr. P.K., is of a low probative value. In that regard, Dr. P.K. provided a positive etiological opinion for the Veteran’s loss of smell but failed to support that opinion with any other medical reasoning. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Turning to the Veteran’s law contentions on this matter, the Board finds that he is competent to identify the circumstances of his combat experiences in-service and the onset of when he first experienced loss of smell and seizures. See 38 U.S.C. § 1154. Moreover, the Board finds that the Veteran’s statements are credible, and bolstered by the consistent medical evidence of record that head injuries can, in fact, cause a loss of smell. In sum, the Board finds that the Veteran has a current diagnosis of anosmia (i.e. loss of smell); the Veteran experienced a head injury during his active service; the Veteran has competently and credibly reported that his symptoms have continued since service; and, the Veteran’s assertions are supported by the February 2012 private nexus opinion and the October 2015 and June 2019 VA examiner’s medical conclusions that a head injury can cause loss of smell. Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for loss of smell is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for loss of smell is warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Seizure Disorder In a June 2007 VA treatment note, it was noted that the Veteran received Gabapentin, an anticonvulsant. In a December 2007 VA neuropsychology note, the Veteran reported that he had suffered an injury resulting in loss of consciousness while in combat where he was knocked out for almost three hours and was symptomatic for seven days. At that time, it was noted that the Veteran’s medical history was positive for seizures, and that those seizures had begun approximately 10 to 12 years prior. In September 2008, it was noted the Veteran had been diagnosed with convulsions and seizure disorder. In a March 2009 VA treatment note, it was revealed that the Veteran was prescribed Phenytoin. In February 2012, a private physician, Dr. P.K., opined that the Veteran’s seizure disorder was at least as likely as not related to his TBI which was the result of a land mine blast during his time in Vietnam. In October 2015, the Veteran was afforded a VA examination for seizure disorders. At that time, the Veteran reported that he had not had a seizure in years but that the symptoms of his seizures, a feeling in the left side of his head, occurred about once a week. The VA examiner reported that the Veteran had a diagnosis of simple partial seizure that required continuous mediation. Additionally, the VA examiner opined that the Veteran’s seizures were at least as likely as not proximately due to or the result of his service-connected condition. However, the VA examiner also reasoned that the evaluation for a TBI did not demonstrate that it had occurred. In a June 2016 VA treatment note, it was noted that the Veteran had a questionable seizure history and at one time was thought to have non-epileptic psychogenic seizures. In September 2016, the Veteran was seen for complaints of a seizure disorder. In June 2019, the Veteran was afforded another VA examination for seizure disorders. At that time, the Veteran reported that his seizures began after the blast injury he received while on active duty. The Veteran also reported that he had been prescribed multiple medications for his seizures and that his condition had progressed. The VA examiner reported that the Veteran had a current diagnosis of seizure disorder. However, the VA examiner opined that the Veteran’s seizure disorder was less likely than not incurred in, caused by, or etiologically related to his active service, to include his in-service head injuries. The VA examiner reasoned that the Veteran’s STRs did not indicate that he sought care for a seizure disorder, his separation examination was silent for a seizure condition and disorder, and that medical records indicated that the seizure disorder was confirmed in 2007 with an abnormal EEG. The VA examiner also stated that the Veteran’s medical records did not support the diagnosis of a seizure disorder related to the land mine blast in 1971. As noted above, the Board finds that the February 2012 private opinion, by Dr. P.K., is of a low probative value. In that regard, Dr. P.K. provided a positive etiological opinion for the Veteran’s seizure disorder but failed to support that opinion with any other medical reasoning. Nieves-Rodriguez, supra. The Board also finds that the October 2015 VA opinion is of a low probative value. In that regard, the VA examiner’s opinion was ambiguous as to how the Veteran’s seizure disorder was causally related to his service-connected post-traumatic stress disorder (PTSD) with memory loss. Additionally, the VA examiner’s opinion failed to incorporate the Veteran’s lay statements pertaining to his in-service head injury and relied on the absence of evidence of a TBI as rationale for the contradictory opinion provided. In either case, the opinion was not adequately supported. Nieves-Rodriguez, supra. Additionally, the Board finds that the June 2019 VA opinion is inadequate for adjudication purposes. In that regard, the VA examiner relied on the absence of medical evidence to partially support his conclusion. Additionally, the VA examiner failed to incorporate the positive etiological opinions provided by Dr. P.K. and the October 2015 VA examiner, thereby erroneously reporting that the record did not support the diagnosis of a seizure disorder related to the land mine blast. As the June 2019 VA opinion is inadequate, it cannot serve as the basis of a denial. The Board also finds that the Veteran is competent to identify the circumstances of his combat experiences in-service and the onset of when he first experienced his seizures. Moreover, the Board finds that the Veteran’s statements are credible. In sum, the Board finds that the Veteran has a current diagnosis of seizure disorder; the Veteran experienced a head injury during his active service; the Veteran has competently and credibly reported that his symptoms have continued since service; and, the Veteran’s assertions are supported by the positive etiological opinions of the Dr. P.K. and the October 2015 VA examiner. (Continued on the next page)   Accordingly, the Board finds that the evidence for and against the claim of entitlement to service connection for seizure disorder is at least in equipoise. Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for seizure disorder is warranted. 38 U.S.C. § 5107 (2018); Gilbert, supra. John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, 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.