Case A26036966

L. M. BARNARD · 2026 · Case ID: A26036966

MIXED

Summary

The veteran, who served in the United States Navy from October 2006 to October 2011, appeals the denial of service connection for chronic sinusitis and depressive disorder, and the withdrawal of appeals for MRSA and scars. The agency of original jurisdiction (AOJ) had previously denied these claims, but the Board found that the AOJ implicitly considered new and relevant evidence, allowing the Board to review the claims. The veteran withdrew the appeals for MRSA and scars at a March 2025 hearing, which the Board dismissed. For chronic sinusitis, the Board found conflicting evidence: VA examination and CT scan results in December 2016 indicated no current sinusitis, while the veteran's testimony and a January 2025 private CT scan and treatment record supported a diagnosis of chronic bilateral frontal and sphenoid sinusitis. Resolving doubt in the veteran's favor, the Board granted service connection for chronic sinusitis, presumptively linked to in-service Persian Gulf exposure. For depressive disorder, the Board found the veteran's claim for secondary service connection persuasive. While VA examiners opined the disorder was less likely related to service or began before service, a private psychiatric examiner in April 2025 concluded it was caused or aggravated by chronic pain from service-connected lumbar strain and right lower extremity radiculopathy, citing medical literature. The Board found this private opinion probative and granted service connection for depressive disorder secondary to these service-connected conditions. The claim for a bilateral knee condition was remanded due to a duty to assist error in the prior VA examination, which failed to adequately address the nexus to service and provide complete range of motion testing.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210719-172852

Full Decision Text

Citation Nr: A26036966
Decision Date: 04/21/26 Archive Date: 04/21/26

DOCKET NO. 210719-172852
DATE: April 21, 2026

ORDER

The appeal for service connection for methicillin-resistant staphylococcus aureus (MRSA) (now claimed as skin condition) has been withdrawn.

The appeal for a compensable initial disability rating for scars, residuals of MRSA infection, has been withdrawn.

Entitlement to service connection for chronic sinusitis is granted.

Entitlement to service connection for depressive disorder (also claimed as anxiety disorder chronic depression, PTSD, and adjustment disorder), secondary to service-connected lumbar strain and service-connected right lower extremity radiculopathy, is granted.

REMANDED

Entitlement to service connection for a bilateral knee condition is remanded.

FINDINGS OF FACT

1. At the Veteran's March 2025 Board hearing, he withdrew the appeal for service connection for MRSA.

2. At the Veteran's March 2025 Board hearing, he withdrew the appeal for a compensable initial disability rating for scars, residuals of MRSA infection.

3. The Veteran has a current diagnosis of chronic sinusitis and served on active duty in the Persian Gulf after August 2, 1990.

4. The Veteran's depressive disorder is due to chronic pain caused by service-connected lumbar strain and service-connected right lower extremity radiculopathy.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the appeal for a compensable initial disability rating for scars, residuals of MRSA infection, by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for withdrawal of the appeal for service connection for MRSA by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

3. The criteria for service connection for chronic sinusitis have been met. 38 U.S.C. §§ 1110, 1119, 1120, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.317(e), 3.320(a).

4. The criteria for service connection for depressive disorder as secondary to service-connected lumbar strain and service-connected right lower extremity radiculopathy are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Navy from October 2006 to October 2011.

The rating decision on appeal was issued in May 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In March 2021, the Veteran submitted two VA Form 20-0995s, Decision Review Request: Supplemental Claim, and requested readjudication of claims for service connection for a bilateral knee condition, service connection for chronic sinusitis, service connection for MRSA, and increased rating for scars, most recently addressed in a January 2017 rating decision, and service connection for depressive disorder, last denied in an August 2019 rating decision. In May 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal. Although the decision stated that no new and relevant evidence was received in relation to each claim, the body of the decision considered new evidence and decided each claim on the merits, which constitutes an implicit finding that new and relevant evidence was in fact received. Therefore, the Board may only consider the evidence of record at the time of the decision on appeal and any evidence submitted during an applicable evidentiary window.

On his July 19, 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on March 13, 2025. Therefore, the Board may only consider the evidence of record at the time of the May 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or a representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a),
Hearing docket. A Board hearing was held on March 13, 2025. Therefore, the Board may only consider the evidence of record at the time of the May 2021 AOJ decision on appeal, as well as any evidence submitted by the Veteran or a representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claim for service connection for a bilateral knee condition, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

Withdrawal

1. Service Connection for MRSA

2. Increased Rating for Scars

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by an appellant or an appellant's authorized representative. Id.

An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the appellant. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

On March 13, 2025, the undersigned Veterans Law Judge discussed with the Veteran their desire to withdraw the claims for service connection for a skin condition/MRSA and also the claim for increased rating for scars. The Veterans Law Judge explained that this meant no testimony would be taken on those issues and no decision issued by the Board, but that the Veteran would remain free to file supplemental claims with new evidence if they wished to do so. All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeals as to the issues of entitlement to service connection for MRSA or for increased rating for scars and each is dismissed.

Service Connection

1. Entitlement to service connection for chronic sinusitis

The Veteran is seeking service connection for chronic sinusitis.

Effective August 5, 2021, sinusitis is presumptively service connected for Persian Gulf veterans who were exposed to fine particulate matter. See 86 Fed. Reg. 42,724, 42,732 (codified at 38 C.F.R. § 3.320). An October 7, 2016, memorandum by a researcher at the Joint Services Records Research Center (JSRRC) confirmed that the Veteran served in the Persian Gulf in 2011, which qualifies him for the presumption of exposure to fine, particulate matter during that service. See 38 C.F.R. § 3.317(e)(2), 38 C.F.R. § 3.320(a)(5)(i). Thus, the question remaining before the Board is whether the Veteran has a current diagnosis of sinusitis.

There is conflicting evidence regarding whether the Veteran has a current diagnosis of sinusitis. The evidence against the Veteran's claim includes the opinion of December 2016 VA examiner, based on a CT scan and in-person examination, as well as a review of the Veteran's claims file. Citing the December 2016 CT scan, the examiner opined that the Veteran had no current diagnosis of sinusitis and no history of chronic sinusitis. They diagnosed only mildly deviated septum, which they opined was less likely than not related to service. A July 2020 CT scan to evaluate the cause of reported "sinus headache[s]" was also normal.

The evidence in favor of the Veteran's claim includes
a current diagnosis of sinusitis.

The evidence in favor of the Veteran's claim includes his own competent lay statements regarding recurrent lay-observable symptoms since service and a January 2025 CT scan and related private treatment records. The Veteran testified at his March 2025 Board hearing that his sinus symptoms began during service and have consistently recurred since leaving service. VA treatment records confirm several complaints of sinus related symptoms including congestion and headaches over several years. A January 2025 private treatment record, submitted within 90 days after his March 2025 Board hearing, showed diagnosis of chronic bilateral frontal and sphenoid sinusitis, confirmed on CT scan.

Resolving reasonable doubt in favor of the Veteran, the Board finds that he has a current diagnosis of chronic sinusitis.

Therefore, service connection for chronic sinusitis, presumptively due to in-service exposure to fine particulate matter, is warranted. See 38 C.F.R. § 3.317(e)(2), 38 C.F.R. § 3.320(a)(5)(i).

2. Service Connection for Depressive Disorder

The Veteran is seeking service for an acquired psychiatric disorder, claimed as depressive disorder, anxiety disorder, chronic depression, PTSD, and adjustment disorder. He has argued that this is properly diagnosed as PTSD related to an in-service stressor. In the alternative, he has argued that it may be depressive disorder related to his service-connected disabilities.

VA examiners in August 2016 and August 2019 diagnosed unspecified depressive disorder but opined that it was less likely than not related to service, as there were more likely post-service causes such as marital stress. A December 2016 VA examiner diagnosed anxiety but could not offer an opinion as to the cause without resorting to speculation. The August 2019 examiner also opined that the Veteran's symptoms began before he entered active service and were not aggravated beyond their natural progression by service. However, the Board notes that no psychiatric disorders were noted on the Veteran's January 2006 report of medical examination so the Veteran is presumed to have been sound at entry to service in the absence of clear and unmistakable evidence to the contrary. See 38 C.F.R. § 3.305(b). None of these opinions addressed whether the Veteran's depressive disorder was caused or aggravated by one or more service-connected disabilities.

An April 2025 private psychiatric examiner's report, submitted within 90 days of the Veteran's March 2025 Board hearing, opined that the Veteran's depressive disorder was caused, or at the very least aggravated, but chronic pain symptoms from his service-connected lumbar strain and right lower extremity radiculopathy disabilities. In support of this conclusion the private examiner cited relevant medical literature explaining the causal connection between chronic pain and mood disorders. They also applied these general principles to the Veteran's own reported symptoms and the effect they have had on his mental health. The Board finds that this private opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

After resolving all doubt in favor of the Veteran, the Board finds that service connection for depressive disorder, secondary to service-connected lumbar strain and service-connected right lower extremity radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102, 3.310.

REASONS FOR REMAND

1. Service Connection for Bilateral Knees

REASONS FOR REMAND

1. Service Connection for Bilateral Knees

The issue of entitlement to service connection for a bilateral knee condition is remanded to correct a duty to assist error that occurred prior to the May 2021 rating decision on appeal. The AOJ obtained a December 2016 medical examination and opinion prior to the May 2021 rating decision on appeal. However, this medical examination and opinion did not provide an adequate rationale regarding whether the Veteran has a bilateral knee condition which had its onset in service or is otherwise related to service. The examiner noted no in-service complaints, diagnosis, or treatment of a knee condition, including on the Veteran's separation examination, but did not discuss the Veteran's separation report of medical history on which the Veteran endorsed knee trouble. The examiner also stated they could not estimate the extent of any functional loss experienced after repeated use over time or during a flare-up without resorting to mere speculation but did not appear to have attempted to elicit relevant information from the Veteran and did not indicate whether the inability to provide an estimate was due to their own lack of knowledge or a lack within the medical community as a whole. Finally, they did not record range of motion testing for passive motion or answer whether there was pain when the joint was used in non-weightbearing motion. A remand is required to provide an adequate examination.

The matter is REMANDED for the following action:

Schedule the Veteran for a VA examination for his claimed bilateral knee disability. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

For each knee, the examiner is asked to provide a response to the following:

Does the Veteran have a knee disability which is at least as likely as not related to service, including repeated climbing ladders and carrying heavy weight during active service?

In assessing whether the Veteran has symptoms severe enough to cause functional impairment, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

In assessing whether the Veteran has symptoms severe enough to cause functional impairment, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner should provide a rationale to support each opinion.

In providing each requested opinion, consider the Veteran's description of the in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

L. M. BARNARD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Zimmerman, Micah

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.

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