Citation Nr: 22018686 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-56 339 DATE: March 30, 2022 ORDER Entitlement to service connection for loss of the sense of smell is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his loss of sense of smell is at least as likely as not related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for loss of sense of smell have been met. 38 U.S.C. § 1110, 5.107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from September 1999 to December 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In March 2016, the Veteran timely filed a notice of disagreement (NOD). In August 2017, the RO issued a statement of the case (SOC). In October 2017, the Veteran submitted a substantive appeal. In November 2019, the Board remanded this issue for additional development and the matter is again before the Board for adjudication. 1. Entitlement to service connection for loss of the sense of smell is granted. The Veteran seeks service connection for loss of sense of smell. Specifically, he contends that his loss of the sense of smell is directly related to service, or in the alternative, secondarily related to his deviated nasal septum. The Board has recharacterized the issue on appeal to reflect the Veteran's secondary service-connection claim. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1110. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). A Veteran is competent to describe symptoms that she experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Following a review of the evidence of record and the applicable legal criteria, the Board finds that the evidence is evenly balanced as to whether the Veteran's disability began during service. Here, the Veteran is currently diagnosed with partial loss of smell. As such, the first and second elements of service connection have been met. As a preliminary matter, the Veteran is currently diagnosed with partial loss of smell. See January 2018 VA examination. As such, the first element of service connection has been met. With respect to the second element of service connection, the Veteran's service treatment records (STRs) are silent for complaints, treatment, or a diagnosis of loss of smell. See generally STRs. However, the Veteran has asserted that his partial loss of smell began during service. In addition, the Veteran complained of a runny nose during service. And, although the complete STRs are unavailable, review of the available STRs show that his nose was broken during service. Affording the Veteran the benefit of the doubt, the Board finds that the second element of service connection, that of an in-service injury or event, has been met. The salient question is thus whether the Veteran's partial loss of smell is related to service. As for the third element of service connection, evidence of a nexus between the Veteran's loss of smell and service, the Board notes that the evidence of record consists of credible statements from the Veteran and negative medical nexus opinions. Here, the Veteran has asserted that he began to notice his loss of smell in 2006, during service. See January 2018 VA examination. In addition, in his December 2019 VA examination, the Veteran's partial loss of smell was noted to have onset in 2006. Contrastingly, a VA examiner found that the Veteran's disability was less likely than not related to service. He explained that neither at the time his post-deployment questionnaire was completed in April 2006, nor on his exit exam, nor during the three intervening years, did the veteran complain of any nasal or respiratory problems. Further, there is no medical evidence documenting a direct relationship between hyposmia and inhalation of environmental toxins, except for hydrogen sulfide. Given the chronology, and this fact, it is unlikely that an environmental exposure either caused or aggravated a partial loss of the sense of smell in this veteran. In addition, unless a traumatic septal deviation results in complete bilateral obstruction of the nasal airway, preventing any airflow to the olfactory nasal mucosa, septal deviation would not result in or aggravate a diminished sense of smell. Legions of people go through life with significant septal deviations, traumatic or otherwise, without a loss of smell. See December 2019 VA Examination; January 2018 VA Examination. The Board notes that the Veteran is competent to report observable symptoms, such as loss of smell. See Layno v. Brown, 6 Vet. App. 465 (1994). In addition, the VA opinion above is inadequate for adjudicative purposes. The VA examiner relies in part of a lack of treatment records, fails to address the Veteran's contention that his disability began in 2006, and fails to address medical literature submitted in October 2019 indicating a possible positive relationship between olfactory impairment and nasal bone fracture. Accordingly, the examiner used incomplete facts in formulating his opinion and it inadequate for adjudicative purposes. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the above, the Board places greater probative weight on the Veteran's competent and credible statements and testimony regarding the onset and continuity of the Veteran's skin disorder. The Board notes that the Veteran is competent to report observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, despite the negative nexus opinions of record, the Board places greater value on the Veteran's competent and credible statements, supported by the medical record, regarding the continuity of symptoms he experienced since service and finds that the third element of service connection has been met. 38 C.F.R. § 3.303(b). Accordingly, entitlement to service connection for a partial loss of smell is warranted and the claim is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.