SINUSITIS

JENNIFER WHITE · 2026 · Case ID: A26038504

MIXED

Summary

The veteran, who served from September 1999 to September 2003, appeals the denial of service connection for sinusitis, an acquired psychiatric disorder (other than PTSD), and a sleep disorder. The Board denied service connection for sinusitis, finding the evidence persuasively weighed against a current disability, noting the absence of sinus-related symptoms in service records and no diagnosis in VA or private treatment records. The Board also found the veteran's lay statements incompetent to establish a diagnosis of sinusitis, as it requires specialized medical knowledge. For acquired psychiatric disorders, the Board denied the claim, citing a negative VA depression screening and lack of diagnosis in treatment records. A licensed professional counselor's opinion was deemed not probative due to the clinician's lack of qualifications (not a psychologist or psychiatrist) and failure to use DSM-5 criteria. The Board also noted the veteran's sleep disturbance claim was secondary to PTSD, which is not service-connected. The Board found no duty to provide a VA examination for sleep disorders as no current disability was demonstrated. The Board remanded claims for allergic rhinitis, headaches, and vertigo, finding the VA TERA medical opinion inadequate for failing to address the combined effects of the veteran's toxic exposures (jet fuel, fumes, asbestos) and for not providing a proper nexus opinion. The Board noted the veteran's competence to report headaches and vertigo symptoms, but a proper diagnosis and nexus opinion are required.

Rationale

No current diagnosis of sinusitis; Service records negative for sinus symptoms; VA exam diagnosed allergic rhinitis, not sinusitis; Lay statements not competent for diagnosis

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250418-538359

Full Decision Text

Citation Nr: A26038504
Decision Date: 04/24/26 Archive Date: 04/24/26

DOCKET NO. 250418-538359
DATE: April 24, 2026

ORDER

Entitlement to service connection for sinusitis is denied.

Entitlement to service connection for an acquired psychiatric disorder, other than posttraumatic stress disorder (PTSD), is denied.

Entitlement to service connection for a sleep disorder is denied.

REMANDED

Entitlement to service connection for allergic rhinitis is remanded.

Entitlement to service connection for headaches is remanded.

Entitlement to service connection for vertigo is remanded.

FINDINGS OF FACT

1. The evidence is persuasively weighted against finding that the Veteran has a current disability of sinusitis that is related to his service.

2. The evidence is persuasively weighted against finding that the Veteran has been diagnosed with an acquired psychiatric disorder, other than PTSD, in accordance with the DSM-5 criteria.

3. The evidence is persuasively weighted against finding that the Veteran has a sleep disorder that is related to his service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for sinusitis have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to service connection for a sleep disorder have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had confirmed service from September 1999 to September 2003.

This matter was appealed to the Board of Veterans' Appeals (Board) from an April 2025 rating decision through submission of an April 2025 VA Form 10182 with election of the direct review appeal docket

The Veteran elected higher-level review of these issues by submitting a March 2025 VA Form 20-0996 (Request for Higher-Level Review). Therefore, the Board may only consider the evidence of record at the time of the January 2025 and March 2025, respective to the issues adjudicated therein, agency of original jurisdiction (AOJ) decisions, which were subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decisions, which were subsequently subject to higher-level review the Board did not consider it in its decision. 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[s], 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 claims of allergic rhinitis, headaches and vertigo, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Board notes that the evidence raises the possibility that the Veteran may be diagnosed with acquired psychiatric disorders other than depression or major depressive disorder as originally claimed. Pursuant to Clemons, the claim on appeal is more accurately characterized as and is expanded to consider all psychiatric diagnoses, with the exception of PTSD, of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Regarding the PTSD, the Veteran elected this issue into the supplemental claim lane in a VA Form 20-0995, dated the same day as the VA Form 10182 on appeal considered herein. In acknowledgement of the Veteran's right to choice and control in the AMA, the Board declines adjudication of the issue of entitlement to service connection for PTSD at this time.

Regarding the issue of entitlement to service connection for a sleep disturbance, the Board notes that the Veteran submitted a higher level review in July 2025, citing the same rating decision on appeal as the one considered herein. However, the Board notes that the subsequent
record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Regarding the PTSD, the Veteran elected this issue into the supplemental claim lane in a VA Form 20-0995, dated the same day as the VA Form 10182 on appeal considered herein. In acknowledgement of the Veteran's right to choice and control in the AMA, the Board declines adjudication of the issue of entitlement to service connection for PTSD at this time.

Regarding the issue of entitlement to service connection for a sleep disturbance, the Board notes that the Veteran submitted a higher level review in July 2025, citing the same rating decision on appeal as the one considered herein. However, the Board notes that the subsequent July 29, 2025 rating decision was spurious in nature as the AMA prohibits higher level review of a higher level review decision. The Board thus proceeds with adjudication of the issue regarding sleep disturbance.

The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. Required notice and information were provided in the claim form which the Veteran signed, certifying to the fact that such notice was received and further than they have included or identified relevant evidence. VA requested records for which the Veteran submitted a proper release and/or adequately identified. The duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

The standard set forth in 38 C.F.R. § 3.103(c)(2)(iii) only permits constructive receipt of Veterans Health Administration (VHA) records that not only existed prior to the issuance of the AOJ decision on appeal, but also for which the claimant furnished sufficient information to make the Veterans Benefits Administration (VBA) aware of the existence of those records. Thus, the Board's consideration of VHA records is limited to the same. Here, the Board finds that VA treatment records were obtained and reviewed consistent with 38 C.F.R. § 3.103(c)(2)(iii) and the AMA framework. 38 C.F.R. § 3.103 provides that a Veteran, upon request, is entitled to a hearing prior to VA's adjudication of an initial or supplemental claim.

Service Connection - General Criteria

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303 (a). The three-element test for service connection requires evidence of: (1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

The PACT Act directs that in certain circumstances, when a veteran is found to have been involved in a toxic exposure risk activity (TERA) during service, VA must obtain an opinion addressing whether such toxic exposure caused a diagnosed disability. 38 U.S.C. § 1168. The TERA threshold, in the same manner as with all claims for service connection, requires lay or other evidence of a current disability before determining whether an examination is necessary. See M21-1.IV.i.1.A.1.b

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

1. Entitlement to service connection for sinusitis

Factual Background & Analysis

The Veteran has claimed that service
by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other).

1. Entitlement to service connection for sinusitis

Factual Background & Analysis

The Veteran has claimed that service connection is warranted for sinusitis. See October 2024 VA Form 21-526 (Application for Compensation or Pension). A September 2001 Report of Medical History indicates no reports of any sinus-related symptoms during service. A January 2004 Report of Medical History similarly indicates no prior medical history of any sinus-related symptoms.

A review of the VA and private treatment records indicates no diagnosis or treatment for sinusitis during the appeal period. The VA treatment records reflect that the Veteran repeatedly denied having any sinus tenderness during primary care general examinations.

The Veteran underwent a VA examination in December 2024. He was diagnosed with allergic rhinitis and not sinusitis. In conjunction with this VA examination the Veteran also underwent x-rays of his sinuses. The clinician who reviewed the x-rays indicated a "normal sinus series" with no evidence of sinusitis.

The threshold question which must be first addressed is whether the evidence demonstrates a current disability of sinusitis.

After review, the Board finds that the evidence is persuasively weighted against finding that a current disability of sinusitis has been demonstrated during or approximate to the period on appeal. The December 2024 x-rays of the sinuses indicating no presence of sinusitis is objective medical evidence which is highly probative to this determination. There is no conflicting medical evidence of record indicating that the Veteran has a current disability of sinusitis.

The Board has considered the Veterans lay reports. While the Veteran is competent to report his symptoms, the issue of whether he has a diagnosis of sinusitis involves internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Jandreau v. Nicholson, 492 F.3d 1372, 1376, n.4 (Fed. Cir. 2007). Due to the Veteran's status as a lay witness, his lay statements are not competent to establish a diagnosis of sinusitis. Id.; 38 C.F.R. § 3.159(a)(1).

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether the Veteran has had a current disability of sinusitis, or approximate to, the appeal period. Rather, the evidence at this time weighs persuasively against the claim, and the benefit of the doubt doctrine is therefore not for application. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

2. Entitlement to service connection for an acquired psychiatric disorder, except for PTSD, is denied.

Factual Background & Analysis

The Veteran has claimed that service connection is warranted for depression related to a domestic violence incident. See October 2024 VA Form 21-526 (Application for Compensation or Pension).

A November 2023 VA depression screening returned a PHQ-2 score of 0 which represented a negative screen for depression. The Veteran replied "not at all" to feeling down, depressed or hopeless. VA treatment records otherwise contain no indication of any diagnosis or treatment for any acquired psychiatric disorder to include depression and/or a major depressive disorder.

An October 2024 Statement in Support of Claim for PTSD notes a report from the Veteran of suffering a domestic violence incident where he was stabbed in the right hand. He stated that he has severe depression and anxiety.

A December 2024 correspondence from a licensed professional counselor was received. The clinician stated the following, "It is my professional opinion, based on [the Veteran's] self-reported history, military records, and clinical evaluation, that his current conditions-including Post-Traumatic Stress Disorder (PTSD), adjustment disorder, and associated physical conditions-are more likely than not (?50% probability) directly related to his military service and contribute to total occupational and social impairment." The examiner did not support these diagnoses and medical opinion with a diagnostic psychological evaluation utilizing the DSM-5 criteria.

After review, the Board finds that the evidence is persuasively weighted against finding that a current disability of an acquired psychiatric disorder, other than PTSD, has been demonstrated by the evidence.

The only evidence tending to
received. The clinician stated the following, "It is my professional opinion, based on [the Veteran's] self-reported history, military records, and clinical evaluation, that his current conditions-including Post-Traumatic Stress Disorder (PTSD), adjustment disorder, and associated physical conditions-are more likely than not (?50% probability) directly related to his military service and contribute to total occupational and social impairment." The examiner did not support these diagnoses and medical opinion with a diagnostic psychological evaluation utilizing the DSM-5 criteria.

The only evidence tending to substantiate a diagnosis for an acquired psychiatric disorder is the December 2024 correspondence provided by a licensed professional counselor indicating a diagnosis for PTSD and adjustment disorder with panic attacks and attributed them to his service. Crucially, this clinician is not competent through their medical training to provide this diagnosis or a nexus opinion. They are not a psychologist, psychiatrist or a similarly competent mental health professional and their diagnosis and opinion is not entitled to probative weight. The competency of expert opinion evidence is predicated on the assumption that the provider of the opinion is "qualified through education, training, or experience" to offer such opinion. See 38 C.F.R. § 3.159(a)(1); see also Fed. R. Evid. 702 ("A witness who is qualified as an expert by knowledge, skill, experience training, or education may testify in the form of an opinion" provided certain conditions are met).

The Veteran is also not competent to provide this evidence through his lay statements alone. See Jandreau v. Nicholson, 492 F3d. 1372, 1376-77 and n.4 (Fed. Cir. 2007) (recognizing that the competence of a layperson to offer evidence on a medical issue is limited to where doing so does not require reliance on specialized medical knowledge or expertise).

With that in mind, the December 2024 correspondence also lacks probative value because the clinician gave no indication that they rendered diagnoses of PTSD and an adjustment disorder after utilization of the DSM-5 criteria. Consequently, no competent mental health provider has provided any diagnosis for an acquired psychiatric disorder consistent with the DSM-5 criteria at any time during the appeal period. Because the Veteran does not have a diagnosis that conforms with the DSM-5, the Board is unable to find that there is a current disability at any time during the appeal period. See Martinez-Bodon v. McDonough, 28 F.4th 1241 (2022) (a DSM-5 diagnosis is required for service connection to be awarded under 38 C.F.R. § 4.130); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (the requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim.").

Accordingly, service connection for an acquired psychiatric disorder must be denied at this time based on the evidence of record. See 38 C.F.R. §§ 3.303, 3.304; Brammer v. Derwinski, 3 Vet. App. 223 (1995) (Congress specifically limited entitlement for service-connected disease or injury to cases where such incidents had resulted in a disability).

Based on the foregoing, the evidence is persuasively weighted against finding that service connection is warranted for an acquired psychiatric disorder and this claim must be denied. Because the evidence is not in approximate balance or "nearly equal" for and against the claim, the benefit of the doubt doctrine is not for application. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).

3. Entitlement to service connection for a sleep disorder

Factual Background & Analysis

The Veteran has claimed service connection for "sleep disturbances" and sleep apnea. He has related sleep disturbances to his service-connected tinnitus. He relates sleep apnea to exposure to jet fuel and fumes while working on an air craft carrier during service. See October 2024 VA Form 21-526 (Application for Compensation or Pension).

A review of the VA treatment records indicates no treatment or diagnosis for any sleep disorders or sleep apnea.

A December 2024 correspondence from a licensed professional counselor was received indicating that the Veteran has sleep disturbances secondary to PTSD. The clinician stated that the Veteran experiences significant difficulty sleeping requiring the use of melatonin.

The Veteran additionally argues in the July 2025 higher level review election that his sleep disturbance is due to PTSD.

The threshold question
disturbances" and sleep apnea. He has related sleep disturbances to his service-connected tinnitus. He relates sleep apnea to exposure to jet fuel and fumes while working on an air craft carrier during service. See October 2024 VA Form 21-526 (Application for Compensation or Pension).

A review of the VA treatment records indicates no treatment or diagnosis for any sleep disorders or sleep apnea.

The Veteran additionally argues in the July 2025 higher level review election that his sleep disturbance is due to PTSD.

The threshold question which must be first addressed is whether the evidence demonstrates a current disability of a sleep disorder and/or sleep apnea.

Initially, there is no medical evidence indicating that the Veteran has ever been diagnosed or treated with sleep apnea following a diagnostic sleep study or otherwise.

With regards to the claimed sleep disturbances, the December 2024 correspondence was authored by a licensed professional counselor. They are not a mental health professional or a physician and their diagnosis and opinion is entitled to the same probative weight as lay evidence. In other words, they lack the medical training to provide a diagnosis for a sleep disorder or sleep apnea. See Martinez-Bodon v. McDonough, 28 F.4th 1241 (2022) (a DSM-5 diagnosis is required for service connection to be awarded under 38 C.F.R. § 4.130). The competency of expert opinion evidence is predicated on the assumption that the provider of the opinion is "qualified through education, training, or experience" to offer such opinion. See 38 C.F.R. § 3.159(a)(1); see also Fed. R. Evid. 702 ("A witness who is qualified as an expert by knowledge, skill, experience training, or education may testify in the form of an opinion" provided certain conditions are met). It is again emphasized that lay evidence is not competent to provide evidence of a current disability with respect to a sleep disorder to include sleep apnea because these disabilities require specialized medical testing and knowledge to diagnosis. See Jandreau v. Nicholson, 492 F3d. 1372, 1376-77 and n.4 (Fed. Cir. 2007) (recognizing that the competence of a layperson to offer evidence on a medical issue is limited to where doing so does not require reliance on specialized medical knowledge or expertise).

Further, this clinician, and the Veteran, indicated that the Veteran's sleep disturbance symptoms are secondary to PTSD. PTSD is not a service-connected disability so any symptoms claimed to be associated with this diagnosis, such as sleep disturbances, cannot be service connected on a secondary basis.

Finally, the Board recognizes that the Veteran was not afforded a VA examination in connection with a claimed sleep disorder or sleep apnea specifically. The AOJ had no duty to obtain a VA examination and medical opinion in connection with this claim prior to issuing the April 2025 rating decision. At that time and as is still the case, the evidentiary record does not demonstrate the presence of a current disability of a sleep disorder or sleep apnea. Thus, there was no pre-decisional duty to assist error by the AOJ for failure to provide a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

Based on the foregoing, the evidence is persuasively weighted against finding that service connection is warranted for a sleep disorder and/or sleep apnea and this claim must be denied. Because the evidence is not in approximate balance or "nearly equal" for and against the claim, the benefit of the doubt doctrine is not for application. Lynch v. McDonough, 21 F.4th 776, 781-82 (2021).

REASONS FOR REMAND

4. Entitlement to service connection for allergic rhinitis

5. Entitlement to service connection for headaches

6. Entitlement to service connection for vertigo

The matters are REMANDED for the following action:

BACKGROUND INFORMATION FOR THE REGIONAL OFFICE ADJUDICATOR:

" Service connection for allergic rhinitis: The Veteran was diagnosed with allergic rhinitis per a December 2024 VA examination. The claims file also indicates non-deployment related participation in toxic exposure risk activities (TERAs) through exposure to jet fuel and fumes and asbestos. See March 2025 VA TERA Memo. A December 2024 VA TERA medical opinion was obtained but it is not adequate. In providing a negative nexus opinion, the examiner did not address or consider the Veteran's jet fuel/fumes and asbestos exposure or the combined, synergistic effects of his TERAs. Therefore, this claim must be rem
REMANDED for the following action:

BACKGROUND INFORMATION FOR THE REGIONAL OFFICE ADJUDICATOR:

" Service connection for 1) headaches; 2) vertigo: The Veteran is competent to report experiencing headaches and symptoms of vertigo and therefore there is an indication that he has these claimed disabilities. See October 2024 VA Form 21-526 (Application for Compensation or Pension). Therefore, these claims must be remanded pursuant to VA's statutory duty to provide a medical examination and medical opinion which addresses whether these disabilities are related to the combined, synergistic effects of his TERAs, when there is evidence of a current disability and that the Veteran participated in a TERA.

THE REMAND DIRECTIVES FOLLOW:

1. Request the following medical opinion from a qualified medical practitioner. The examiner must address the following, with a full supporting rationale:

Is it at least as likely as not (likelihood is at least approximately balanced, if not higher) that the Veteran's allergic rhinitis is related to the synergistic, combined effect of all the Veteran's TERAs during his active service? Why or why not?

The examiner must review the entire record in conjunction with rendering the requested opinions.? The examiner's attention is drawn, but not limited to, the following evidence:?

" December 2024 TERA Memo noting exposure to asbestos and jet fuel/fumes.

2. In connection with the claimed disability of headaches, provide the Veteran with a TERA examination and obtain a medical opinion from a qualified medical examiner which addresses the following:

(a.) Identify any headaches disability.

(b.) For any disabilities identified in (a.), is it at least as likely as not (likelihood is at least approximately balanced, if not higher) that this disability is related to the synergistic, combined effect of all the Veteran's TERAs during his active service? Why or why not?

3. In connection with the claimed disability of vertigo, provide the Veteran with a TERA examination and obtain a medical opinion from a qualified medical examiner which addresses the following:

(a.) Identify any peripheral vestibular disorders.

The examiner must review the entire record in conjunction with rendering the requested opinions.? The examiner's attention is drawn, but not limited to, the following evidence:?

" December 2024 TERA Memo noting exposure to asbestos and jet fuel/fumes.

The Board notes that the claims folder must be provided to and reviewed by the examiner for all post-remand cases per AOJ policy. See VBA Manual M21-1, Part IV.i.2.A.8.b. Thus, the examiner must specifically note that the claims folder was received and reviewed in the body of the examination report.

The examiner is informed that a positive opinion with respect to direct service connection causation does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against, the examiner should make a determination favorable to the Veteran.

All requested opinions must be supported with a rationale based on generally accepted medical principles and the examiner's medical training and expertise.

Readjudicate.

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Mckone, Kyle

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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