Citation Nr: 22054079 Decision Date: 09/22/22 Archive Date: 09/22/22 DOCKET NO. 19-22 750 DATE: September 22, 2022 ORDER Entitlement to a disability rating in excess of 0 percent (noncompensable) for loss of smell is denied. Entitlement to a disability rating in excess of 0 percent (noncompensable) for loss of taste is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for chronic sinusitis is remanded. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran's loss of smell is partial; total loss is not demonstrated. 2. The Veteran's loss of taste is partial; total loss is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for a compensable disability rating for loss of smell have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.87a, Diagnostic Code 6275. 2. The criteria for a compensable disability rating for loss of taste have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14.7, 4.87a, Diagnostic Code 6276. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1970 to July 1990. The Veteran appeared at a Board hearing in May 2022; a transcript is of record. With respect to the Board hearing, the undersigned clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Loss of smell & 2. Loss of taste The Veteran's loss of sense of smell is rated under Diagnostic Code 6275, at 0 percent disabling since May 2018. Under Diagnostic Code 6275, a maximum, 10 percent rating is assigned for a complete loss of sense of smell; otherwise, a noncompensable, or 0 percent, evaluation is assigned. The Veteran's loss of sense of tase is rated under Diagnostic Code 6276 since May 2018. Under Diagnostic Code 6276, a 10 percent rating is assigned for complete loss of sense of taste. 38 C.F.R. § 4.87a, Diagnostic Code 6276. There are no other ratings available under the code. Therefore, like Diagnostic Code 6275, a noncompensable, or 0 percent, evaluation is assigned when there is not complete loss. A July 2018 VA Otolaryngology note indicates that the Veteran had loss of smell (anosmia) and diminished taste (hypogeusia). Loss of Sense of Smell and/or Taste Disability Benefits Questionnaire (DBQ) completed by Dr. C. in July 2018, indicates the Veteran had complete loss of smell. This DBQ indicates the Veteran had partial loss of sense of taste. A VA examination dated in August 2018, found that the Veteran had a reduced ability to detect odors. At the examination, the Veteran was able to identify alcohol by its smell. His loss of sense of smell was determined to be partial. At the examination, the Veteran was able to tell salt and sugar by the taste. The Veteran's loss of sense of taste was determined to be partial. VA examination results dated in August 2018, found that the Veteran had a decreased sense of taste (hypogeusia). An October 2019 statement from the Veteran's daughter-in-law, who is a physician, noted that the Veteran had acute and dramatic loss of smell without improvement. The Veteran no longer enjoyed foods and could not appreciate taste as well and lost the desire to eat. The Veteran could not discern the taste of food or drink and has had dehydration and weight loss due to a lack of a desire to eat or drink. On an October 2019 statement from the Veteran, he reported being able to faintly smell alcohol, but could not smell a number of other items such as bleach and ammonia and generally everything smelled like drywall or mud. The Veteran also reported being able to distinguish between salt and sugar, but reported that he could not taste other things, such as steak and chocolate, but could still taste Cajun seasoning, sweetness, or spiciness. The Veteran reported his job involved describing the tastes of various foods and he now must rely on his memory of how items used to taste. An October 2019 statement from the Veteran's wife noted that the Veteran had decreased taste, no longer liked foods he used to eat, did not enjoy going out to eat at restaurants anymore, he was not able to eat much, and he had lost a lot of weight. An October 2019 statement from the Veteran's son noted that the Veteran lost his sense of smell and taste and could not distinguish between harmful and non-harmful smells or tastes. The Veteran no longer enjoys meals during holidays or special occasions and no longer has any joy from eating. During the Veteran's Board hearing, he reported not being able to distinguish between types of meat and whether something had gone bad or spoiled and he did not enjoy food anymore. This has caused the Veteran to lose about 10 pounds. He reported that the VA examination dated in August 2018 was correct, he could smell alcohol and taste sweetness and could still taste Cajun seasoning and hot sauce. The Board notes that the DBQ dated in July 2018 and the VA Otolaryngology note reports complete loss of smell. However, this contradicts both the other medical evidence and the Veteran's own statements and therefore is not entitled to probative weight. The Veteran has affirmed he has some remaining sense of smell. The Board has considered the Veteran's contentions and reports of having reduced sense of taste and smell, and these assertions are credible and consistent with the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board acknowledges the Veteran's disabilities impact his life. Based on this evidence, the Board finds that there is no basis for a compensable rating for the Veteran's loss of sense of taste and smell. The Board acknowledges that the Veteran has much diminished sense of taste and smell, including not being able to taste or smell many types of foods and being unable to tell whether food spoiled. However, the relevant diagnostic codes require complete loss of taste or smell; the Veteran did not demonstrate, nor has he since claimed that he had a complete loss of sense of taste or smell, instead he had some remaining ability to taste and smell. Without evidence of complete loss of taste or smell, a compensable rating cannot be assigned under the current the relevant diagnostic code. Additionally, as loss of sense of taste has its own code (Diagnostic Code 6276) as does the loss of smell (Diagnostic Code 6275) no rating by analogy under other codes is permissible; thus, a higher rating under another code provision is not warranted. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). In sum, the evidence does not demonstrate that the Veteran has complete loss of the sense of taste or complete loss of the sense of smell, and ratings higher than 0 percent are not warranted. Therefore, for both of these issues, the most probative evidence of record persuasively weighs against the claim of entitlement to a compensable rating. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt rule does not apply, and a compensable rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 2. Chronic sinusitis & 2. Left lower extremity radiculopathy During the May 2022 Board hearing, the Veteran asserted that the chronic sinusitis and the left lower extremity radiculopathy have increased in severity since the Veteran was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of these disabilities. The Veteran, during his hearing, also reported receiving private treatment for his radiculopathy and sinusitis. These should be obtained. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for any private treatment for radiculopathy and sinusitis. Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected chronic sinusitis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. 4. Readjudicate the claim, considering all evidence of record. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and the representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.