CHRONIC SINUSITIS

L.M. YASUI · 2026 · Case ID: A26035841

GRANTED

Summary

The veteran, who served from June 1969 to December 1970, appeals the severance of service connection for chronic sinusitis with chronic laryngitis. The Agency of Original Jurisdiction (AOJ) initially granted service connection in August 2024, finding the condition directly related to service. However, in July and October 2025, the AOJ proposed and then finalized the severance, citing a May 2025 VA medical opinion that concluded the condition pre-existed service and was not aggravated beyond its natural progression. The AOJ found clear and unmistakable error in the original grant. The Board reviewed the AOJ's adherence to due process for severance and found it met. The Board then examined whether the original grant was clearly and unmistakably erroneous. The Board noted the veteran reported sinusitis on induction, and service treatment records showed treatment for sinus issues. A July 2024 VA exam found the condition related to service. However, a May 2025 VA opinion and a February 2026 VA opinion both concluded the condition pre-existed service and was not aggravated beyond its natural progression. The Board found that reasonable minds could differ on whether the condition pre-existed service or was aggravated during service, meaning the AOJ's disagreement with the original grant constituted a weighing of facts, not clear and unmistakable error. Therefore, the Board found the severance improper and restored service connection.

Rationale

AOJ severed service connection based on May 2025 VA opinion finding pre-existing condition and no aggravation.; Board found AOJ's disagreement with original grant was a weighing of facts, not clear and unmistakable error.; Service treatment records showed sinus issues during service.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

260305-636101

Full Decision Text

Citation Nr: A26035841
Decision Date: 04/16/26 Archive Date: 04/16/26

DOCKET NO. 260305-636101
DATE: April 16, 2026

ORDER

The severance of service connection for chronic sinusitis with chronic laryngitis was improper; restoration of service connection for chronic sinusitis with chronic laryngitis is granted.

FINDING OF FACT

The grant of service connection for chronic sinusitis with chronic laryngitis pursuant to an August 2024 rating decision was not clearly and unmistakably erroneous.

CONCLUSION OF LAW

The severance of service connection for chronic sinusitis with chronic laryngitis was improper; the criteria for restoration of service connection for chronic sinusitis with chronic laryngitis have been met. 38 U.S.C. § 5112; 38 C.F.R. § 3.105.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1969 to December 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2025 rating decision issued by the Agency of Original Jurisdiction (AOJ).

In the March 2026 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the October 2025 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Board acknowledges the decision by the United States Court of Appeals for Veterans Claims in Williams v. McDonough, 37 Vet. App. 305 (2024). In Williams, the Court held the Board must refrain from deciding a case until the case proceeds to the point where a docket switch is no longer permitted under the terms of 38 C.F.R. § 20.202(c)(2). The deadline to request an AMA docket switch is one year from the date of notice of the AOJ decision or 60 days from the date the VA Form 10182 was received by the Board, whichever is later. See generally Williams, 37 Vet. App. 305. The notice of the rating decision on appeal is dated October 1, 2025. The Board interprets the Veteran's statements as reflecting an intent to have this matter reviewed in an expeditious manner, which the Board finds to be an implicit waiver of the Veteran's right to change Board dockets under Williams v. McDonough, 37?Vet. App.?305 (2024). Thus, the Board will proceed with adjudication.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(a)(2).

1. Whether the severance of service connection for chronic sinusitis with chronic laryngitis was proper

The AOJ originally granted service connection for chronic sinusitis with chronic laryngitis in an August 2024 rating decision. The AOJ found that the chronic sinusitis with chronic laryngitis was directly related to military service.

In July 2025, the AOJ issued a rating decision proposing to sever service connection for chronic sinusitis with chronic laryngitis. The AOJ found that service connection for chronic sinusitis with chronic laryngitis was granted in error. Citing the May 2025 VA medical opinion, the AOJ explained that the evidence showed that the chronic sinusitis existed prior to service and there was no evidence that the condition permanently worsened as a result of service. The AOJ concluded that there was clear and unmistakable error and proposed to sever service connection for chronic sinusitis with chronic laryngitis.

The October 2025 rating decision severed service connection for the chronic sinusitis with chronic laryngitis effective November 7, 2023. The AOJ reiterated the findings of the July 2025 proposed rating decision. Service connection for chronic sinusitis with chronic laryngitis
that service connection for chronic sinusitis with chronic laryngitis was granted in error. Citing the May 2025 VA medical opinion, the AOJ explained that the evidence showed that the chronic sinusitis existed prior to service and there was no evidence that the condition permanently worsened as a result of service. The AOJ concluded that there was clear and unmistakable error and proposed to sever service connection for chronic sinusitis with chronic laryngitis.

The Board will grant the appeal and restore the benefits severed as discussed below.

Service connection will be severed only where evidence establishes that the award of service connection was clear and unmistakable error (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d).

When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d).

A change in diagnosis may be accepted as a basis for severance action if the examining physician or physicians or other proper medical authority certifies that, in the light of all accumulated evidence, the diagnosis on which service connection was predicated is clearly erroneous. This certification must be accompanied by a summary of the facts, findings, and reasons supporting the conclusion. 38 C.F.R. § 3.105(d).

To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006); cf. Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14, 319 (1992) (en banc). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a).

In most respects, the CUE standard for severing service connection under § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Section 3.105(d) places at least as high a burden of proof on the VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id.

However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth, 20 Vet. App. at 488. The Secretary's burden is not to prove clear and unmistakable error in the original decision in the same manner a claimant would show CUE under sections 5109A or 7111. Id.

A decision that is reversed or amended based
VA when it seeks to sever service connection as § 3.105(a) places upon an appellant seeking to have an unfavorable previous determination overturned. See id.

A decision that is reversed or amended based on CUE is revised to conform to the true state of the facts or the law that existed at the time of the original adjudication. Allen, 21 Vet. App. at 62 (internal quotations omitted).

The initial question for the Board is whether the AOJ followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The Board finds that it did.

The AOJ issued the proposed rating in July 2025. The Veteran was notified in July 2025 at his latest address of record of this contemplated action and furnished detailed reasons. He was given 60 days to present additional evidence to show that service connection should be maintained. The July 2025 notice letter also informed the Veteran that he had the opportunity for a predetermination hearing if a request for a hearing was received by VA within 30 days from the date of the notice. See 38 C.F.R. § 3.105(i). In the October 2025 rating decision, the AOJ acknowledged receipt of the Veteran's request for a personal hearing, but explained the request was received more than 30 days after the notification letter of the proposed severance. The Veteran was advised that the final decision was made but he would still be scheduled for his requested hearing.

The AOJ issued the October 2025 rating decision severing service connection, effective November 7, 2023. See 38 C.F.R. § 3.400(k). Notification of this rating decision, plus his appeal rights, was sent to the Veteran in an October 2025 letter. All due process requirements were met in severing service connection for chronic sinusitis with chronic laryngitis. See 38 C.F.R. § 3.105(d).

The remaining question before the Board is whether the grant of service connection for chronic sinusitis with chronic laryngitis was clearly and unmistakably erroneous. The Board finds that the severance of service connection for chronic sinusitis with chronic laryngitis was improper because it is not clear and unmistakable that the Veteran's chronic sinusitis with chronic laryngitis existed prior to service and did not onset nor was aggravated during service due to injury, disease, or event incurred therein.

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303.

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment. 38 U.S.C. § 1111.

The term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all the other evidence in question as to the commencement of the disease or disability. Determinations of whether a condition existed pre-service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. 38 C.F.R. § 3.304 (b)(1).

On
of the examination, acceptance, and enrollment. 38 U.S.C. § 1111.

On the June 1969 Induction Report of Medical History, the Veteran indicated that he previously had or has sinusitis. The examiner noted, "claims sinus trouble." However, the June 1969 service induction examination documents that clinical evaluation of the sinuses was normal. An August 1969 service treatment record reflects that the Veteran received treatment for complaint of sinus. A January 1970 service treatment record reflects the Veteran received treatment for sinus drainage. He was prescribed Sudafed. The December 1970 service separation examination documents that clinical evaluation of the sinuses was normal.

The July 2024 VA sinusitis/rhinitis and other conditions of the nose, throat, larynx and pharynx examination report documents, in pertinent part, diagnosis of chronic sinusitis and chronic laryngitis. The VA examiner opined that the claimed chronic sinusitis with chronic laryngitis was at least as likely as not incurred in or caused by an in-service injury, event, or illness. The examiner noted that the service treatment records showed the Veteran suffered from a chronic sinus condition during service and explained the current chronic sinusitis with chronic laryngitis, which was present during service, is directly linked to the Veteran's military service. Thus, the examiner stated that the Veteran's chronic sinusitis with chronic laryngitis was a direct result of his service and concluded a nexus was established.

In the May 2025 VA medical opinion, the examiner opined that the claimed chronic sinusitis with chronic laryngitis, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression during service by an in-service injury, event, or illness. The examiner explained that review of the Veteran's records showed a reported history of sinusitis on entrance examination on June 23, 1969. The examiner stated, "this appears to be a preexisting condition." In addition, the examiner referred to the June 2024 sinus x-ray findings which were unremarkable and showed clear paranasal sinuses. Thus, the examiner concluded that a nexus could not be established.

The Board is aware that, outside of the appeal period, in a February 2026 VA medical opinion, the examiner opined that the claimed chronic sinusitis with chronic laryngitis, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression during service by an in-service injury, event, or illness. The examiner explained that the Veteran had clear and unmistakable evidence of preexisting sinusitis, rhinitis and there was evidence to indicate he continued to suffer from the disorder during service, which was typical of the condition. The examiner stated, however, that the progression was not beyond the normal progression for the disorder. The examiner concluded that there was no evidence of permanent aggravation beyond normal progression.

The evidence documented above does not establish that the award of service connection was clearly and unmistakably erroneous. In interpreting the phrase "clear and unmistakable evidence," the word unmistakable means that an item cannot be misinterpreted and misunderstood, i.e., it is undebatable. Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing Webster's New World Dictionary 1461 (3rd Coll. ed. 1988) (other citations omitted).

Reasonable and competent medical professionals could differ on whether the Veteran's chronic sinusitis with chronic laryngitis existed prior to service or was aggravated during service due to injury, disease, or event incurred therein.

These are not claims of service connection to be evaluated as to whether the claims should be granted based upon a finding of an approximate balance of positive evidence; nor denied because the evidence is not in approximate balance between that favoring the claims and against the claims. In this matter, the standard to be employed is whether there is "clear and unmistakable evidence" of an error.

Essentially, the AOJ disagreed with how the facts were weighed in the August 2024 rating decision. In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish
chronic sinusitis with chronic laryngitis existed prior to service or was aggravated during service due to injury, disease, or event incurred therein.

Essentially, the AOJ disagreed with how the facts were weighed in the August 2024 rating decision. In the context of a severance case, a disagreement as to how to weigh the facts is legally insufficient to establish that the award of service connection was clearly erroneous.

(Continued on the next page)

Restoration of service connection for chronic sinusitis with chronic laryngitis, effective November 7, 2023, is warranted.

L.M. YASUI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Jackson, Graig

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.

Analyze in VA Law Explorer