Citation Nr: 21028730 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-09 037 DATE: May 11, 2021 ORDER Entitlement to service connection for loss of taste, to include as due to exposure to contaminated water at Camp Lejeune, is denied. Entitlement to service connection for loss of smell, to include as due to exposure to contaminated water at Camp Lejeune, is denied. REMANDED Entitlement to service connection for a right testicle disability, to include erectile dysfunction (ED) and as due to exposure to contaminated water at Camp Lejeune, is remanded. FINDINGS OF FACT A loss of taste and smell are not etiologically related to the Veteran's active service. CONCLUSIONS OF LAW 1. The criteria for service connection for loss of taste have not been met. 38 U.S.C. § 1131 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for loss of smell have not been met. 38 U.S.C. § 1131 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the United States Marine Corps from May 1974 to May 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2013 and June 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, the Board denied entitlement to service connection for a right testicle condition in May 2019. However, the issues of entitlement to service connection for loss of taste and smell were remanded for additional development. The Veteran appealed to the United States Court of Appeals for Veterans Claims, which, in December 2020, subsequently granted the parties' Joint Motion for Partial Remand of the May 2019 Board denial of entitlement to service connection for a right testicle condition. The matters have since been returned to the Board for appellate review. Service Connection Loss of Smell and Taste The Veteran has contended that his loss of smell and taste are related to his active service. Specifically, he reported that he was exposed to contaminated water while stationed at Camp Lejeune. VA has conceded his exposure to water contaminants at Camp Lejeune. Further, the Veteran referenced two of three articles associating exposure to toxic chemicals in drinking water, to include benzene, to problems with taste and smell. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of loss of smell or taste. Furthermore, there were no complaints, treatment, or diagnosis of loss of smell or taste documented in the Veteran's post-service medical record until 2017. The Board notes that the passage of time between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In June and September 2020, the Veteran was afforded a VA examination and medical opinions for his loss of smell and taste. He was diagnosed with hyposmia and hypogeusia. The examiners opined that the Veteran's loss of smell and taste were less likely than not incurred in or caused by his service, to include exposure to contaminated water at Camp Lejeune. The June 2020 VA examiner remarked that there was no documented post-service clinical investigation aimed at ascertaining an etiology of the Veteran's anosmia/ageusia complaints. He highlighted a 2017 Agency for Toxic Substances and Disease Registry (ATSDR) assessment which found no studies supporting anosmia/ageusia as a sequela to exposure to contaminated water. He acknowledged that there were a few investigational studies that observed smell and taste disorders after exposure to organic solvents such as benzene. However, he explained that the most common cause of smell and taste disorders was chronic rhinosinusitis which had been a longstanding problem for the Veteran. Additionally, he noted that the Veteran was a former cigarette smoker which was a known risk factor for smell and taste complaints. He concluded that it was more likely than not that tobacco and chronic rhinitis conditions were responsible for the Veteran's complaints. Furthermore, the September 2020 VA examiner found no imaging studies to rule out any structural damages that may affect the Veteran's smell and taste. He stated that there was no evidence to support that hyposmia and hypogeusia were incurred in service. The Board finds the VA medical opinions are highly probative and weigh against the Veteran's claims. In this regard, the examiners' opinions were based on a review of the Veteran's lay assertions and article submissions, pertinent service and post-service medical records, and science-based research. In addition, the examiners relied on their own training, knowledge, and expertise in rendering their opinions. Moreover, the Board finds that there are no competent medical opinions of record to the contrary. In sum, the Veteran did not complain of, receive treatment for, or have a diagnosis of loss of smell or taste while in active service. There is no competent evidence of record indicating that the Veteran's currently present hyposmia and hypogeusia were otherwise related to his service. Further, the VA examiners opined that the Veteran's claimed disabilities were not related to his active service, including exposure to contaminated water at Camp Lejeune. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for loss of smell and taste is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran has contended that his right testicle disability, to include ED, is related to his active service. Specifically, he reported that he was kicked in his "private area" by his senior drill instructor. Further, he asserted that he suffers from right testicle atrophy, sexual dysfunction, and sterility due to his exposure to water contaminants at Camp Lejeune, conceded above. He submitted two articles associating exposure to toxic chemicals in drinking water, to include benzene, to testicular atrophy and/or fertility problems. STRs documented that the Veteran complained of sharp pain in his testicles in May 1975 due to trauma. A review of post-service VA treatment records revealed that the Veteran suffers from an atrophic right testicle and ED. In October 2013, the Veteran was afforded a VA examination. The examiner opined that the Veteran's right testicle disability was less likely than not incurred in or caused by his active service. He stated that the Veteran's ED did not start until years after his separation and was most likely attributed to other factors such as his mental condition or hypertension. The Board finds that the October 2013 VA examination is inadequate for adjudication purposes. In this regard, the examiner's rationale did not address STR evidence of trauma to his testicles and his diagnosed testicle atrophy. Furthermore, the examiner did not consider the Veteran's exposure to water contaminants at Camp Lejeune. As such, a remand is warranted for a new VA examination. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of any currently present right testicle disability, to include erectile dysfunction. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and the review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or better probability) that any currently present right testicle disability, to include erectile dysfunction, is etiologically related to the Veteran's active service. The examiner must address STR evidence of trauma to the Veteran's testicles in May 1975, his exposure to water contaminants at Camp Lejeune, and submitted articles. The rationale for all opinions expressed must be provided. 3. Confirm that the VA examination report and all medical opinions provided comport with this remand, and undertake any other development determined to be warranted. (Continued on the next page) 4. Then, readjudicate the remaining claim on appeal. If a decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Ware, 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.