REDUCTION OF DISABILITY EVALUATION FOR CHRONIC SINUSITIS

MARISSA CAYLOR · 2026 · Case ID: A26040105

MIXED

Summary

The veteran, who served with multiple periods of service including January 1976 to January 1979, December 2001 to May 2004, and September 2005 to August 2010, appeals the reduction of his chronic sinusitis rating and the denial of service connection for bilateral hearing loss. The Board found the reduction of the chronic sinusitis rating from 50% to 0% improper, as the VA failed to demonstrate actual improvement in the veteran's ability to function under ordinary conditions. The Board restored the 50% rating for chronic sinusitis, effective April 1, 2018. Service connection for a laryngeal disability, including throat clearing, vocal cord paresis, dysphonia, and sensory/motor neuropathy, was granted. The Board found the veteran's lay testimony regarding in-service pneumonia and subsequent laryngeal symptoms credible and persuasive, and the VA's negative nexus opinion inadequate. Service connection for bilateral hearing loss was denied because the audiometric testing did not meet the VA's criteria for hearing loss, and the veteran's lay testimony regarding his hearing was not given significant weight. The Board also dismissed the veteran's attempt to appeal a prior denial of service connection for right upper extremity peripheral neuropathy as untimely, finding no good cause for the late filing. The case is remanded for further development regarding bilateral tinnitus secondary to service-connected disability and for a new examination addressing the chronic sinusitis and its surgical history.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

201026-119058

Full Decision Text

Citation Nr: A26040105
Decision Date: 04/29/26 Archive Date: 04/29/26

DOCKET NO. 201026-119058
DATE: April 29, 2026

ORDER

The reduction of the disability evaluation from 50 to 0 percent, effective April 1, 2018, for chronic sinusitis with deviated septum, non-traumatic, status post repair, was improper, and restoration to 50 percent is granted effective April 1, 2018.

Service connection for a laryngeal disability, to include throat clearing, vocal cord paresis, dysphonia and sensory/motor neuropathy, is granted.

Service connection for bilateral hearing loss is denied.

The October 26, 2020, Board Appeal request attempting to appeal a rating decision issued on October 24, 2019, that denied service connection for right upper extremity peripheral neuropathy is dismissed.

REMANDED

Service connection for bilateral tinnitus secondary to service-connected disability is remanded.

Entitlement to a rating in excess of 50 percent for chronic sinusitis is remanded.

FINDINGS OF FACT

1. A January 2018 Rating Decision reduced the evaluation for the Veteran's service-connected chronic sinusitis disability from 50 percent to 0 percent, effective April 1, 2018.

2. At the time of the reduction, the Veteran's rating had not been in effect for more than five years, however, the probative evidence of record did not show actual improvement in the Veteran's ability to function under ordinary conditions of life and work due to his chronic sinusitis disability.

3. The Veteran's laryngeal disability is related to service.

4. The Veteran does not have a bilateral hearing loss disability for VA compensation purposes.

5. The Veteran did not timely file a Board Appeal request (VA Form 10182) with respect to the rating decision issued on October 24, 2019, that denied service connection for right upper extremity peripheral neuropathy, and good cause has not been shown to accept the late filing.

CONCLUSIONS OF LAW

1. The reduction of the disability evaluation from 50 to 0 percent for chronic sinusitis with deviated septum, non-traumatic status post repair, effective January 1, 2024, was improper, and the criteria for restoration to 50 percent have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.105, 3.343(a), 3.344, 4.130, Diagnostic Code (DC) 6512.

2. The criteria for service connection for a laryngeal disability, to include throat clearing, vocal cord paresis, dysphonia and sensory/motor neuropathy, have been met. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. § 3.102, 3.303.

3. The criteria for service connection for bilateral hearing loss have not been met. 38 U.S.C. § 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

4. The October 26, 2020, Board Appeal request is not timely with respect to the rating decision issued on October 24, 2019, that denied service connection for right upper extremity peripheral neuropathy and the criteria for an extension of time to file a Board Appeal request have not been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.109(b), 3.2500(a), 20.202, 20.203.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1976 to January 1979, December 2001 to May 2004, and September 2005 to August 2010. He also had periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA), including one from October 1991 to January 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 24, 2020, Statement of the Case (SOC) and an October 7, 2020, Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO), also known as the agency of original jurisdiction (AOJ).

In the October 26, 2020, VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In June 2024, the Veteran testified before a Veterans
inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA), including one from October 1991 to January 1992.

In the October 26, 2020, VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In June 2024, the Veteran testified before a Veterans Law Judge (VLJ); a copy of the transcript has been associated with the claims file.

Therefore, the Board may only consider the evidence of record at the time of the September 24, 2020 SOC with respect to the hearing loss and laryngitis issues, and the October 7, 2020 rating decision regarding the sinusitis issue, 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(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. For the remanded claim, 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).

Rating Reductions

"[D]isability benefits are a protected property interest and may not be discontinued without due process of law." Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009). Veterans receiving disability benefit payments should not be deprived of that income without receiving appropriate notice and an opportunity to respond. But see Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (finding no reduction in compensation paid occurred despite reduction in single rating assigned to disability; Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010) (staged rating not a reduction because no compensation was being received at the time of the staged rating); VAOPGCPREC 71-91.

If a rating reduction results in a decreased level of compensation or discontinuance of compensation paid to a veteran, VA must follow the procedural safeguards in 38 C.F.R. § 3.105(e). First, VA must issue a rating proposing the reduction or discontinuance that sets forth all material facts and reasons. VA must notify the veteran of the proposed reduction using his or her latest address of record and provide detailed reasons for the reduction. The veteran must be given 60 days to present additional evidence to show that compensation payments should be continued at their present level. VA must also inform the veteran that he or she may request a predetermination hearing within 30 days from the date of the notice. If no hearing is requested and no additional evidence is received within the 60-day period, VA may take final rating action and implement the reduction or discontinuance effective the last day of the month in which a 60-day period from the date of notice to the veteran expires. 38 C.F.R. § 3.105(e).

If VA reduces the disability compensation paid to a veteran without following these substantive regulatory requirements for reduction, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999).

Where a rating has been in effect for less than five years, reduction is warranted where an adequate examination shows actual improvement in a veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342, 350 (2000); see also 38 C.F.R. § 3.344 (c). A rating reduction requires an inquiry as to "whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting such a change are based upon thorough examinations." Brown v. Brown, 5 Vet. App. 413, 421 (1993). The burden of proof is on the VA to establish that the evidence persuasively favors reduction. See Brown, 5 Vet. App. at 421; Kitchens v. Brown, 7 Vet. App. 320, 324 (1995).

Pursuant to 38 C.F.R. § 4.1, it is essential, both in the examination and in the evaluation of the disability, that each disability be viewed in relation to its history. Brown, 5 Vet. App at 420. Similarly, 38 C.F.R. § 4.2 establishes that "[i]t is the responsibility of the rating specialist to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present." Id. Furthermore, per 38 C.F.R. § 4.13, the rating agency should assure itself that there has been an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms.

1. Propriety of the reduction of the disability evaluation from 50 to 0 percent for chronic sinusitis with deviated septum, non-traumatic, status post repair.

The Veteran contends that the reduction in the rating for sinusitis was improper. See September 2018 Statement in Support of Claim; June 2024 Board Hearing Transcript.

As an initial matter, the Board notes that the Veteran was granted service connection for chronic sinusitis in a June 2015 rating decision with an evaluation of 50 percent, effective January 23, 2015. In August 2017, a special review was mandated. Following a September 2017 VA Examination, the AOJ issued a January 2018 rating decision reducing the Veteran's rating to 0 percent, effective April 1, 2018. In January 2018 VA Form 21-526EZ, the Veteran filed a claim for an increased rating for sinusitis and requested reconsideration of the reduction decision. The AOJ continued the zero-percent rating in a February 2018 Rating Decision. In October 2018, the Veteran submitted another VA Form 21-526EZ, again requesting an increased rating for sinusitis and reconsideration of the reduction. In a November 2018 Rating decision, the AOJ continued the 0 percent rating.

In February 2019, the Veteran submitted a Notice of Disagreement (NOD), appealing the reduction in the legacy system. In response, the AOJ issued a September 24, 2020 SOC, continuing the zero-percent rating prior to September 21, 2020 and granted a 50 percent rating thereafter. However, a rating decision issued on October 7, 2020, appeared to grant only a 30-percent rating for chronic sinusitis, also effective September 21, 2020.

Regardless, records show that the Veteran is rated at zero percent prior to September 21, 2020, and at 50 percent from September 21, 2020. The Board will proceed with adjudication based on these ratings.

The Board also notes that the Veteran has been diagnosed with chronic sinusitis as well as related deviated septum, non-traumatic, status post repair. See September 2020 VA Examination. The Board has recharacterized the issue herein to better reflect the scope of the Veteran's initial claim, his intent, and the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

After reviewing the record, the Board agrees with the Veteran that the reduction in the rating for his sinus disability effective April 1, 2018, was improper.

Regarding notice, because the rating reduction reduced the Veteran's combined disability rating from 50 percent to 0 percent
ication based on these ratings.

After reviewing the record, the Board agrees with the Veteran that the reduction in the rating for his sinus disability effective April 1, 2018, was improper.

Regarding notice, because the rating reduction reduced the Veteran's combined disability rating from 50 percent to 0 percent, resulting in a reduction in the amount of overall compensation payable to the Veteran, the procedural requirements of 38 C.F.R. § 3.105(e) apply. See September 2017 Notification Letter. Here, the AOJ complied with the requirements of 38 C.F.R. § 3.105(e). In addition to issuing a September 2017 Rating Decision proposal to reduce the disability rating from 50 percent disabling to 0 percent disabling, the RO sent the Veteran a letter that complied with the requirements of 38 C.F.R. § 3.105(e). See September 2017 Notification Letter. This letter informed him of the proposed action, reduction of his combined disability rating, and that he could submit additional evidence and request a hearing within the applicable time periods. The Veteran submitted additional evidence in January 2018 and requested a predetermination hearing. See October 2017 Statement in Support of Claim. A hearing was held on November 20, 2017. The January 2018 rating decision then addressed the Veteran's additional evidence and implemented the reduction, made effective April 1, 2018.

Turning to the merits, as the 50 percent rating for chronic sinusitis was in effect for less than five years prior to reduction, the provisions of 38 C.F.R. § 3.344(c) apply. At the time of the January 2018 AOJ decision implementing the reduction, the 50-percent disability rating had only been effective since January 23, 2015, and the prospective effective date of the reduction was April 1, 2018. Where a disability rating has been in effect less than five years, a rating reduction is warranted if reexamination of the disability discloses improvement of that disability and the improvement reflects an improvement in the ability to function under the ordinary conditions of life and work. 38 C.F.R. § 3.344(c); 38 C.F.R. §§ 4.2, 4.10; Stern v. McDonough, 34 Vet. App. 51, 59 (2021). The burden of proof lies with VA to show the Veteran's disability has undergone an improvement.

Here, the reduction is based on a September 2017 VA Examination, which suggested that there may have been an improvement in the Veteran's disability. However, the September 2017 examiner appeared to rely primarily on October 2016 private treatment records and focused on symptoms which the examiner indicated were not related to the Veteran's sinusitis. In addition, the examiner did not address whether there was a sustained improvement or whether such improvement would be maintained under the ordinary conditions of life outside of an examination setting. 38 C.F.R. § 3.344. Thus, while the September 2017 VA Examination findings may have suggested objective improvement, the record does not contain adequate evidence regarding whether any such improvement actually reflected an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-21; 38 C.F.R. § 3.344(c). Therefore, VA has not met its burden and the reduction in the Veteran's disability evaluation for his chronic sinusitis disability was improper.

Accordingly, a 50 percent rating, the highest available under the General Rating Formula for Sinusitis, is restored, effective April 1, 2018.

Service connection

In general, service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the
connection

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

The Board must also fully consider the lay assertions of record. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed by a lay person, to include observable symptoms. See 38 C.F.R. § 3.159(a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Further, a lay witness may opine on questions of diagnosis and etiology, provided that such matters are amenable to a lay person's observation. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

VA is responsible for determining whether the evidence supports the claim or is in relative balance, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the evidence persuasively weighs against a claim, the claim is denied.

2. Service connection for a laryngeal disability, to include throat clearing, vocal cord paresis, dysphonia and sensory/motor neuropathy.

The Veteran contends he has a chronic laryngitis disability that is related to service. See September 2018 Statement; October 2018 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ); October 2020 VA Form 20182: June 2024 Board Hearing.

In this case, the Veteran has not been diagnosed with chronic laryngitis but has been diagnosed with throat clearing, vocal cord paresis, dysphonia and sensory/motor neuropathy. See May 2017 Dr. S.H. records; January 2018 Private Disability Benefits Questionnaire (DBQ); November 2018 VA Examination; September 2020 VA Examination. Therefore, the Board has recharacterized the chronic laryngitis issue to better reflect the scope of the Veteran's initial claim, his intent, and the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

Regarding the first element of service connection, a current disability, as noted above, VA treatment records show the Veteran has a current diagnosis of chronic laryngitis but has been diagnosed with throat clearing, vocal cord paresis, dysphonia and sensory/motor neuropathy. See May 2017 Dr. S.H. Consult; January 2018 Private
Disability Benefits Questionnaire (DBQ); November 2018 VA Examination; September 2020 VA Examination. Therefore, the Board has recharacterized the chronic laryngitis issue to better reflect the scope of the Veteran's initial claim, his intent, and the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

As for the second element of service connection, an in-service occurrence or injury, the Board finds that element has also been satisfied. The Veteran's entrance and separation examinations are silent for any complaints, treatment for, or diagnosis of a laryngeal disability. However, the Veteran reported that he contracted and was hospitalized with viral pneumonia while in boot camp and began experiencing laryngeal symptoms, including a feeling of having a lump in his throat, having to clear his throat frequently and hoarseness and such symptoms have continued and worsened since then. See May 2017 Dr. S.H. medical records; November 2018 VA Examination; January 2024 Board Hearing. The Board assigns great probative weight to the Veteran and his wife's consistent reports about his in-service and post-service symptoms throughout the record. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed by a lay person, to include observable symptoms. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the Veteran is competent to report to illness such as pneumonia in service and laryngeal symptoms such as lump in his throat, having to clear his throat and hoarseness while the Veteran was in service and after separation from service.

As both the first and second elements of service connection have been met, the question becomes whether the current disability is related to service. The record includes evidence that weighs both against and in favor of finding a nexus.

The Veteran submitted May 2017 private VA medical records that provide a positive nexus to service. His treating physician, Dr. S.H. asserted that the Veteran's throat clearing/coughing and dysphonia are related to mild laryngeal inflammation/mucous, and he also has very poor glottic closure due to right vocal folds paresis, contributing to dysphonia and laryngeal sensory neuropathy also contributes to his symptoms. Dr. S.H. opined that the Veteran's laryngeal disabilities stem from his pneumonia in service during basic training because he reported that symptoms, including paresis of his vocal cords, hoarseness and throat clearing began in service after his pneumonia. The clinician pointed out that this type of infectious vocal fold paresis is a common cause of dysphonia.

A VA examination was conducted in November 2018. The examiner opined that the Veteran's disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran attributes his throat disability, including throat clearing, mild laryngeal inflammation with mucous, laryngeal sensory/motor neuropathy and paresis of right vocal to an episode of pneumonia in-service. However, he is noted to have idiopathic dysphonia, as the etiology has not been identified. The Board finds this examination inadequate for two reasons. First, despite the examiner's recitation of Dr. S.H.'s May 2017 findings that the Veteran's disability stems from his in-service pneumonia, the examiner noted that his disability was idiopathic because an etiology has not been established. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). Second, the examiner provided a rationale finding no nexus to service for the Veteran's dysphonia, but failed to explain why the Veteran's throat clearing, vocal cord paresis and sensory/motor neuropathy are not related to service, including the Veteran's in-service pneumonia. Stefl v. Nicholson, 21 Vet. App. 120 (2007).

In this case, the record contains one inadequate medical
established. A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (per curiam). Second, the examiner provided a rationale finding no nexus to service for the Veteran's dysphonia, but failed to explain why the Veteran's throat clearing, vocal cord paresis and sensory/motor neuropathy are not related to service, including the Veteran's in-service pneumonia. Stefl v. Nicholson, 21 Vet. App. 120 (2007).

In this case, the record contains one inadequate medical opinion providing a negative nexus to service and one probative medical opinion in favor of a nexus. Accordingly, the Board finds that the evidence persuasively weighs in favor of finding that a nexus exists and service connection for a laryngeal disability is granted.

3. Service connection for bilateral hearing loss.

The Veteran asserts that he has bilateral hearing loss because of hazardous noise exposure in service, including years of weapons training and exposure to small arms fire and explosives during weapons qualifications. See October 2018 VA 21-526EZ; October 2018 Statement in Support of Claim. In the alternative, he asserts that his disability is secondary to his service-connected sinusitis. Id.; June 2024 Board Hearing.

After reviewing the records, the Board finds that service connection is not warranted for bilateral hearing loss because the Veteran does not have hearing loss for VA compensation purposes under 38 C.F.R. § 3.385.

For VA purposes, a minimum degree of hearing loss is a prerequisite for entitlement to service connection. McKinney v. McDonald, 28 Vet. App. 15 (2016). Hearing loss is a disability for VA purposes if it exceeds the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is between 0 and 20 decibels and higher thresholds show some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155 (1993).

The record contains audiological test results from the November 2018 VA Examination, which do not meet the criteria under 38 C.F.R. § 3.385. None of the frequencies 500, 1000, 2000, 3000, 4000 Hz is 40 decibels or greater; nor at least three are 26 decibels or greater. In addition, speech recognition scores are greater than 94 percent for both ears. In the left ear, the Veteran's puretone thresholds were 15 (500 Hz), 15 (1000 Hz), 15 (2000 Hz), 15 (3000 Hz), and 15 (4000 Hz). His speech recognition score was 100 percent. In the right ear, he had puretone thresholds of 10 (500 Hz), 10 (1000 Hz), 15 (2000 Hz), 10 (3000 Hz), and 15 (4000 Hz). His speech recognition score was 100 percent.

Moreover, the Board notes that the record does not appear to contain evidence that the Veteran has ever met the criteria for a hearing loss disability for VA purposes at any time during or after his period of active service.

During a November 2018 VA Examination, the Veteran reported difficulty hearing and needing to ask to repeat what was said and turn up the volume on his Television and radio. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Hearing loss issues are complex and can involve the interaction between multiple systems in the body, and audiometric testing for puretone thresholds requires use of specialized equipment. While the Veteran believes that he has hearing loss for VA purposes, the record does not contain evidence that he has specialized training or knowledge regarding audiology or conducting audiometric testing that would render him competent to provide evidence that he had puretone thresholds or speech discrimination scores that met the relevant criteria. Consequently, the Board gives more probative weight to the November 2018 VA examination audiometric test results.

Accordingly, after careful consideration of the evidence, the Board finds that the
expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Hearing loss issues are complex and can involve the interaction between multiple systems in the body, and audiometric testing for puretone thresholds requires use of specialized equipment. While the Veteran believes that he has hearing loss for VA purposes, the record does not contain evidence that he has specialized training or knowledge regarding audiology or conducting audiometric testing that would render him competent to provide evidence that he had puretone thresholds or speech discrimination scores that met the relevant criteria. Consequently, the Board gives more probative weight to the November 2018 VA examination audiometric test results.

Accordingly, after careful consideration of the evidence, the Board finds that the competent, credible, and probative evidence weighs against finding that the Veteran has a current disability of bilateral hearing loss. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (Fed. Cir. 1997); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). For this reason, the Board finds that direct service connection is not warranted for bilateral hearing loss.

Timeliness of an Appeal

Under the Appeals Modernization Act (AMA), an appeal consists of a properly completed Notice of Disagreement (NOD, Board Appeal request) on the form prescribed by the Secretary submitted to the Board within one year from the date that the agency of original jurisdiction (AOJ) mailed notice of the decision. 38?U.S.C. §?7105(b)(1)(A); 38?C.F.R. §§?3.2500(a)(1), 20.202, 20.203. A question as to the timeliness or adequacy of a Board Appeal request shall be decided by the Board. 38 U.S.C. § 7105(b)(1)(C).

An extension of the period for filing a Board Appeal request may be granted for good cause. 38 C.F.R. § 20.203(c). A request for such an extension must be in writing and must be filed with the Board. Id. When an extension is requested after expiration of a time limit, good cause must be shown as to why the required action could not have been taken during the original period and could not have been taken sooner than it was. 38 C.F.R. § 3.109(b). Whether good cause for an extension has been established will be determined by the Board. 38 C.F.R. § 20.203(c).

Examples of good cause may include serious illness or injury of the appellant or representative, or the appellant's inability to access mail services due to homelessness, or overseas deployment. Examples that would not constitute good cause include change in representation, change in preference of a review option at the AOJ or among the Board review options, difficulty in obtaining evidence, or discovery of new evidence during a period in which the duty to assist does not apply. 84 Fed. Reg. 138,155 (Jan. 18, 2019).

4. Timeliness of the October 26, 2020, Board Appeal request with respect to the rating decision issued on October 24, 2019.

The Veteran filed an October 26, 2020 Board Appeal request seeking to appeal the rating decision issued on October 24, 2019 that denied service connection for right upper extremity peripheral neuropathy, and selecting the Hearing docket.

The Board recognizes that the Veteran requested a hearing. Hearings are provided to appellants who properly request one in association with appellate review of a VA decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.302. In this case, the Board has not accepted appellate review, and no hearing will be provided.

For the reasons explained below, the Board concludes that the attempted appeal was not timely, and good cause has not been presented to warrant an extension of time to file an appeal from the rating decision issued on October 24, 2019.

As noted above, the rating decision issued on October 24, 2019 that denied service connection for right upper extremity peripheral neuropathy. The Veteran and the Veteran's representative were notified of the decision in a letter that included appeal rights and instructions for filing an appeal to the Board. The letter was sent to the Veteran's address of record and was not returned as undeliverable.

The Veteran's October 26, 2020, Board Appeal request was not filed timely because it was received more than one year after the rating decision issued on October 24, 2019. The Veteran did not provide an explanation for why the Board Appeal request was not timely filed and the record does not appear to contain other evidence of good cause. The Veteran had the ability to attend in-person VA examinations in November 2019, submit a statement in support of a different claim in February 2020. He underwent a surgery for his septum in August 2020, over 9 months after notification of the rating decision, but was able to attend in-person VA examinations in September 2020. The Board finds that the record does not contain sufficient evidence of good cause to explain why the Board Appeal request was not timely filed.

Further, the Board finds that it has not waived any claim-processing requirements. See Ferko v. McDonough, 37 Vet. App. 262 (2024); Hall v. McDonough, 34 Vet. App. 329 (2021). In Percy v. Shinseki, 23 Vet. App. 37, 46 (2009), the Court of Appels for Veterans Claims (Court) held that VA waived any objections it might have had to the timeliness of an appeal when it treated a matter as if it were part of a timely filed appeal for more than five years. Similarly, in Beryle v. Brown, 9 Vet. App. 24, 28 (1996), the Court held that VA waived the requirement of filing an appeal when the Board proceeded to review the claims, despite no appeal having been filed. However, the Board finds that this case is distinguishable from Percy because the Board did not lead the Veteran to believe that his October 24, 2020 Board Appeal request was accepted. The Board did not advise the Veteran that the October 2020 Board Appeal request was timely received with respect to the right upper extremity peripheral neuropathy issue and the June 2024 Board Hearing did not address the merits of the issue. Therefore, the Board finds that it has not waived any claim-processing requirements with respect to adequacy or timeliness of a Board Appeal request submitted to appeal the October 2019 rating decision. See Percy, 23 Vet. App. at 46; Beryle, 9 Vet. App. at 28.

Accordingly, the October 26, 2020, Board Appeal request was not timely filed with respect to the rating decision issued on October 24, 2019 that denied service connection for right upper extremity peripheral neuropathy, and good cause has not been shown to accept the late filing. The attempted appeal is dismissed.

REASONS FOR REMAND

5. Service connection for bilateral tinnitus secondary to service-connected disability.

The Veteran contends that his tinnitus disability is related to service, including years of weapons training and exposure to small arms fire and explosives during weapons qualifications. See October 2018 VA 21-526EZ; October 2018 Statement in Support of Claim. In the alternative, he asserts that his disability is secondary to his service-connected sinusitis. Id.; June 2024 Board Hearing.

Unfortunately, a remand is necessary to correct a pre-decisional duty to assist error in that the November 2018 VA examination is inadequate. See 38 C.F.R. § 20.802; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

In this case, despite the Veteran's assertion that his tinnitus disability is related to his service-connected sinusitis, the November 2018 VA examiner did not provide a medical opinion regarding secondary service connection. A medical opinion that provides no rationale or an incomplete analysis is not adequate to decide a claim. See Stefl v. Nicholson, 21 Vet. App. 120 (2007).

On remand, the AOJ should obtain an addendum medical opinion regarding secondary service connection.

6. Entitlement to a rating in excess of 50 percent for chronic sinusitis.

The Veteran's chronic sinusitis disability is currently rated at 50 percent. He contends that his disability is more severe than reflected by the current rating. See January and October 2018 Application for Disability Compensation and Related Compensation Benefits (VA Form 21-526EZ); October 2020 VA Form 10182.

provide a medical opinion regarding secondary service connection. A medical opinion that provides no rationale or an incomplete analysis is not adequate to decide a claim. See Stefl v. Nicholson, 21 Vet. App. 120 (2007).

On remand, the AOJ should obtain an addendum medical opinion regarding secondary service connection.

6. Entitlement to a rating in excess of 50 percent for chronic sinusitis.

Unfortunately, a remand is necessary to correct pre-decisional duty to assist errors. See 38 C.F.R. § 20.802. The AOJ failed to obtain relevant outstanding private treatment records and an adequate VA examination. 38 C.F.R. §§ 3.159(c)(1); See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).

VA treatment records from March through August of 2019 indicate that the Veteran is followed by a non-VA ear, nose and throat specialist at Methodist for his chronic sinusitis disability. VA's duty to assist claimants to obtain evidence needed to substantiate a claim includes making reasonable efforts to obtain relevant private medical records when the existence of such records has been made known to VA. 38 C.F.R. § 3.159 (c)(1); See Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992) (holding that evidence of record before VA may "raise enough notice of pertinent private medical records to trigger the duty to assist"). Here, the private records are relevant because they pertain to the Veteran's treatment for his disability. However, the claims file does not contain medical records from the private physician or evidence of reasonable efforts made to obtain such records. On remand, VA should attempt to obtain the relevant private medical records.

Further, the November 2018 VA examination is inadequate. The Veteran reported he was last treated for acute sinusitis a year ago with antibiotics and that he had deviated septum surgery in February 2018. However, the examiner found that the Veteran had not experienced non-incapacitating episodes of sinusitis characterized by headaches, pain and purulent discharge or crusting in the past 12 months or incapacitating episodes of sinusitis requiring prolonged (4 to 6 weeks) of antibiotics treatment in the past 12 months. Similarly, a September 2020 VA examiner noted no repeated sinus-related surgical procedures had been performed but February 2018 VA records show the Veteran had a deviated septum repair and February 2019 VA treatment records show the Veteran was scheduled for a septal perforation repair in March 2020, to be performed by his private ears, nose and throat specialist. August 2020 VA treatment records show that the Veteran underwent the surgery and had complications. A remand is warranted to ensure the Veteran receives an examination that addresses the full picture of his disability, including surgical treatment therefore.

The matters are REMANDED for the following action:

1. Make reasonable efforts to obtain the private treatment records from Dr. Ting, private ear, nose and throat specialist referenced in the March through August 2019 VA treatment records, including records of any surgeries performed.

2. After #1 is completed, schedule an examination by an appropriate clinician regarding the severity of the Veteran's service-connected chronic sinus disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability.

3. Obtain an opinion from an appropriate clinician regarding the Veteran's tinnitus disability. The examiner should review the claims file, including a copy of this remand, and answer the following:

(a) Opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the disability is caused by service-connected disability (i.e., the disability would not have developed but for the service-connected disability), or functionally worsened by the service-connected disability (i.e., the disability would not have worsened but for the service-connected disability), to include by an inability to treat it?

Please provide a complete rationale and detailed medical explanation to support the opinions. If speculation would be required, please explain why.

In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his 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
is at least approximately balanced or nearly equal, if not higher) that the disability is caused by service-connected disability (i.e., the disability would not have developed but for the service-connected disability), or functionally worsened by the service-connected disability (i.e., the disability would not have worsened but for the service-connected disability), to include by an inability to treat it?

Please provide a complete rationale and detailed medical explanation to support the opinions. If speculation would be required, please explain why.

In providing the requested opinion, consider the Veteran's description of his in-service injury and symptoms as well as his 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 his current disability, this should be noted. Stated another way, do the Veteran's reports about his 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?

Marissa Caylor

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Michel-Rossi, Mayerline

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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