Case A26039138

Summary

The Veteran served and Air Force Reserves from February 2005 to February 2009, with subsequent periods of active duty and reserve service until October 2011. The Veteran appealed the denial of service connection for chronic sinusitis and sought an increased rating for persistent depressive disorder with anxious distress, alcohol use disorder, and traumatic brain injury. During the February 20, 2025, hearing, the Veteran withdrew the appeal regarding the increased rating for the mental health and TBI conditions. The Board dismissed this issue due to the withdrawal. Regarding chronic sinusitis, the Board found that the Veteran had a current diagnosis and in-service treatment for an upper respiratory infection. The evidence also indicated exposure to airborne pollutants, including desert dust, diesel exhaust, and burn pit emissions, during service. A private nurse practitioner provided an opinion linking the sinusitis to these exposures, citing the known connection between prolonged exposure to such conditions and chronic respiratory issues. The Board found this evidence persuasive, concluding that service connection for chronic sinusitis was warranted due to in-service exposure to airborne toxins. The Veteran's service branch was identified as Navy and Air Force Reserves.

Full Decision Text

Citation Nr: A26039138
Decision Date: 04/27/26	Archive Date: 04/27/26

DOCKET NO. 210809-177453
DATE: April 27, 2026

ORDER

A rating higher than 50 percent for persistent depressive disorder with anxious distress and alcohol use disorder and traumatic brain injury has been withdrawn.

Service connection for chronic sinusitis is granted.

FINDINGS OF FACT

1. At the February 20, 2025, hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the appeal regarding the issue of a rating higher than 50 percent for persistent depressive disorder with anxious distress and alcohol use disorder and traumatic brain injury is requested.

2. The Veteran's chronic sinusitis is related to in-service exposure to airborne pollutants.

CONCLUSIONS OF LAW

1. The criteria for withdrawal of the claim for a rating higher than 50 percent for persistent depressive disorder with anxious distress and alcohol use disorder and traumatic brain injury by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for chronic sinusitis are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from February 2005 to February 2009, from May 2010 to August 2010, from October 2010 to February 2011, and from April 2011 to October 2011 with additional service in the Navy and Air Force Reserves.

In May 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of an April 2020 statement of the case.  In October 2020, the agency of original jurisdiction (AOJ) issued a HLR decision, which found a duty to assist error at the time of the April 2020 statement of the case with regard to the sinusitis claim.  This finding converted the HLR claim to a supplemental claim.

In March 2021, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which found that new and relevant evidence had been received and denied the claim based on the evidence of record at the time of that decision.  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.

In the August 9, 2021, VA Forms 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket.  A Board hearing was held on February 20, 2025.  Therefore, the Board may only consider the evidence of record at the time of the March 2021 agency of original jurisdiction (AOJ) supplemental claim decision on appeal, as well as any evidence submitted by the Veteran or representative at the hearing or within 90 days following the hearing.  38 C.F.R. §?20.302.  If evidence was submitted either (1) during the period after the AOJ issued the supplemental claim 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.

Withdrawal

A rating higher than 50 percent for persistent depressive disorder with anxious distress and alcohol use disorder and traumatic brain injury

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
 for filing a Supplemental Claim are included with this decision.

Withdrawal

A rating higher than 50 percent for persistent depressive disorder with anxious distress and alcohol use disorder and traumatic brain injury

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 February 20, 2025, the Veteran withdrew the issue of an increased rating for persistent depressive disorder with anxious distress and alcohol use disorder and traumatic brain injury orally at the hearing.  All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue and it is dismissed.

Service Connection

Service connection for chronic sinusitis

As an initial matter, the Board notes that the March 2021 decision found a current diagnosis of chronic sinusitis and in-service treatment for an upper respiratory infection with tenderness to palpation along the frontal sinuses on July 13, 2006.  There is no evidence that identifies a clear and unmistakable error in this favorable finding and so the current disability and in-service injury elements are satisfied.  38 C.F.R. § 3.104 (c).

In addition to the in-service upper respiratory infection, the evidence of record shows that the Veteran is considered to have been exposed to high levels of particulate matter and hexavalent chromium during his deployments while in service.

The Board concludes that the Veteran has a current disability that is related to in-service exposure to desert dust, diesel exhaust, burn pit emissions, and other airborne toxins.  38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

As noted above, the Veteran has a current diagnosis of chronic sinusitis and conceded exposure to airborne pollutants.  Thus, the question becomes whether the current disability is related to service.  In an April 2025 opinion, a private nurse practitioner opined that the two were linked noting the Veteran's service in multiple hazardous environments placed him at heightened risk for respiratory issues, including chronic sinusitis.  The rationale was that the scientific and medical communities have long acknowledged the link between prolonged exposure to such conditions and the development of chronic upper respiratory conditions.

Accordingly, the Board finds that service connection for chronic sinusitis is warranted.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

JIMMY L. BARDIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Houbeck, Bridgid

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.