Citation Nr: 22017745 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 19-24 895 DATE: March 26, 2022 ORDER New and material evidence has been presented, and the previously denied claim for service connection for depression is reopened. New and material evidence has been presented, and the previously denied claim for service connection for headaches is reopened. Service connection for sleep apnea, to include as secondary to service-connected sinusitis and/or obesity, is denied. Service connection for headaches, to include as secondary to service-connected sinusitis, is granted. A reduction of the rating for the Veteran's sinusitis from 30 percent to 10 percent was not proper; the 30 percent rating is restored, effective April 17, 2018. REMANDED The claim for service connection for an acquired psychiatric disorder, to include adjustment disorder and depression, as due to military sexual trauma (MST) is remanded. The claim for a rating in excess of 30 percent for sinusitis is remanded. FINDINGS OF FACT 1. The March 2017 rating decision denied service connection for depression is final. 2. The evidence received since the March 2017 rating decision raises a reasonable possibility of substantiating the claim. 3. The April 2002 rating decision denied service connection for headaches is final. 4. The evidence received since the April 2002 rating decision raises a reasonable possibility of substantiating the claim. 5. The Veteran's sleep apnea is not shown to be causally or etiologically related to any disease, injury, or incident during service, nor was it caused or aggravated by a service-connected disability and it did not manifest to a compensable degree within one year of separation from active duty. 6. The Veteran's favor, his headaches are proximately due to his service-connected sinusitis. 7. In July 2018 rating decision, the Regional Office (RO) reduced the Veteran's 30 percent disability rating of the service-connected sinusitis, to a 10 percent rating, effective April 17, 2018. 8. The reduction of the service-connected sinusitis was not carried out in accordance with applicable procedures and is void ab initio. CONCLUSIONS OF LAW 1. The March 2017 rating decision that denied the Veteran's claim for service connection for depression is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence has been received since the March 2017 rating decision that is sufficient to reopen the Veteran's previously denied claim for service connection for depression. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 3. The April 2002 rating decision that denied the Veteran's claim for service connection for headaches is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence has been received since the April 2002 rating decision that is sufficient to reopen the Veteran's previously denied claim for service connection for headaches. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). 5. The criteria for service connection for a sleep apnea, to include as secondary to the service-connected sinusitis, and/or obesity, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 6. The criteria for service connection for headaches, to include as secondary to sinusitis, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 7. The reduction in rating for sinusitis from 30 percent to 10 percent was not proper and is void ab initio. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from April 1988 to January 1999. The Veteran and his attorney testified at a Board videoconference hearing before the undersigned Veterans Law Judge in November 2020. A transcript of the hearing has been obtained and associated with the claims file. The evidence of record indicates that the Veteran has been diagnosed with various mental health diagnoses, to include depression and adjustment disorder. As such, the Board has recharacterized the claim on appeal as one for an acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Claims to Reopen Generally, a claim that has been finally denied in an unappealed RO decision or a Board decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104 (b), 7105(c). The exception is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Pursuant to Shade, evidence is considered new if it has not been previously submitted to agency decision makers, and it is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim. Id. The Court interprets the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Additionally, new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). 1. Whether new and material evidence has been presented, and the previously denied claim for entitlement to service connection for depression The Veteran was denied service connection for depression in a June 2011 rating decision as there was no evidence of the condition in service and while he was currently being treated, there was no link to his military service. The Veteran submitted a timely Notice of Disagreement (NOD) and a September 2014 Statement of the Case (SOC) was issued. A VA Form 9, substantive appeal, was not submitted. Additionally, the Veteran did not submit new and material evidence within one year of the issuance of the June 2011 rating decision. Because the Veteran did not timely perfect his appeal and did not submit new and material evidence within the one-year appellate period, the June 2011 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In March 2015, the Veteran submitted a request to reopen his claim. The November 2015 rating decision did not reopen his claim as new and material evidence was not submitted. The claim was denied in a November 2015 rating decision which found that no new and material evidence has been received. The Veteran was notified of the rating decision and his appeal rights. The Veteran did not appeal the decision and did not submit new and material evidence within the one-year appellate period. Accordingly, November 2015 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In November 2016, the Veteran made another request to reopen his claim. Again, a March 2017 rating decision denied the Veteran's claim to reopen as new and material evidence was not received. In February 2018, within one year of the March 2017 rating decision, the Veteran requested reconsideration of decision and indicated that new and material evidence would be submitted. However, no additional evidence was received. Therefore, the March 2017 rating decision was final. Id. Finally, the Veteran submitted a request to reopen his claim of service connection for depression in April 2018. A July 2018 rating decision denied the Veteran's claim as new and material evidence was not received. The Veteran filed a timely NOD and an SOC was issued in August 2019 continuing the decision to not reopen the claim. Evidence received since the final March 2017 rating decision includes the Veteran's testimony at the August 2020 Board hearing, VA treatment records reflecting treatment for depression, supporting buddy statements, and an etiological opinion from a private examiner. This evidence was not of record at the time of the March 2017 rating decision, and it relates to an unestablished fact necessary to establish the claim, in particular, the buddy statements of a military sexual trauma and the private examiner's positive nexus opinion. The Board finds the evidence to be both new and material, and therefore the claim for service connection for depression is reopened. 2. Whether new and material evidence has been presented, and the previously denied claim for entitlement to service connection for headaches The Veteran was denied service connection for headaches in a March 1999 rating decision as it was concluded that neither permanent residuals, nor a chronic disability connected to his military service was shown by the medical evidence of record. Additionally, the Veteran failed to attend the scheduled VA examination. The Veteran requested a new VA examination in April 1999. Subsequently, a July 1999 rating decision continued the denial as the VA examination revealed the Veteran's headaches started a year prior and he experienced them approximately once every two weeks. The Veteran did not appeal the July 1999 rating decision, nor did he submit any new and material evidence within a year of the decision. See 38 C.F.R. § 3.156(b). As such, the July 1999 rating decision became final. In July 2001, the Veteran filed a claim to reopen the issue of service connection for headaches. In an April 2002 rating decision, VA denied the Veteran's claim finding no etiological link between this disability and his military service. There was no chronic pathology to account for his headaches. The Veteran did not appeal the April 2002 rating decision, nor did he submit any new and material evidence within a year of the decision. As such, the April 2002 rating decision became final. Id. In April 2018, the Veteran filed a request to reopen this claim. A July 2018 rating decision denied the Veteran's claim as new and material evidence was not received. The Veteran filed a timely NOD and an SOC was issued in August 2019 continuing the decision to not reopen the claim. The Veteran submitted a timely VA Form 9. Evidence received since the final April 2002 rating decision includes, but is not limited to, the Veteran's testimony at the Board hearing, VA treatment record, and VA examinations suggesting his headaches may have been caused by his service-connected sinusitis. This evidence was not of record at the time of the April 2002 rating decision, and it relates to an unestablished fact necessary to establish the claim, in particular, the VA examination report showing his headaches were connected to his service-connected sinusitis. The Board finds the evidence to be both new and material, and therefore the claim for service connection for headaches is reopened. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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, 1167 (Fed. Cir. 2004). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established, there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303 (b) is limited to a chronic disease listed at 38 C.F.R. § 3.309 (a)). Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service connection for sleep apnea The Veteran contends that his sleep apnea is the result of his military service, to include secondary to his service-connected sinusitis and/or obesity as a result of a service-connected disability. The longstanding policy of the Department of Veterans Affairs is that obesity, per se, is not a disease or injury for purposes of 38 U.S.C. §§ 1110 and 1131 and therefore may not be service connected on a direct basis, consistent with title 38, United States Code. Nevertheless, obesity may be an "intermediate step" between a service-connected disability and a current disability that may be connected on a secondary basis. In order to meet this criteria, the Veteran must demonstrate that service-connected disability or disabilities caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). According to the Veteran's service treatment records, in November 1988, he reported being tired and getting only two to three hours of sleep in the last week due to worrying and "talking and fighting himself in sleep." He stated he was worried about his father's health and was unable to get enough sleep. He denied other constitutional symptoms. The Veteran's December 1998 Report of Medical History and Report of Medical Examination at separation is absent of sleep apnea or any other sleep disturbances. The VA treatment records confirm diagnosis and treatment of obstructive sleep apnea (OSA). These records, however, do not support the Veteran's contention that his condition is etiologically related to his service-connected sinusitis and/or obesity as a result of a service-connected disability. The Veteran's partner, S.T.B., submitted an August 2020 statement that he has been in a relationship with the Veteran since 2001 and since then he has witnessed the Veteran's struggle with insomnia and sleep apnea. He stated he was alarmed by the Veteran's condition interrupting his ability to sleep and breath. In May 2018, the Veteran was afforded VA sleep apnea examination at which a diagnosis of OSA was confirmed. Upon examination, a review of the evidence of record, including the Veteran's lay statements, the VA examiner opined it was less likely than not that the Veteran's condition was proximately due to or the result of a service-connected condition. The VA examiner explained that sinusitis and OSA were not medical related and as OSA was a separate entity entirely from sinusitis. Additionally, the medical literature did not support a medical relationship. According to an April 2021 private opinion from Huntington Behavioral Health, the medical examiner opined the Veteran's OSA was at least as likely as not related to or aggravated by the service-connected sinusitis. The private medical examiner also concluded that the Veteran's weight gain was at least as likely as not related to aggravated by the service-connected physical disabilities, namely the lumbar spine disability. In explaining, the private medical examiner cited to two medical treatises that nasal obstruction was a frequent condition in patients with OSA and that the treatment of rhinitis in patients with OSA alleviates symptoms but did not resolve OSA. The private medical examiner also cited to two medical treatises indicating the lumbar spinal stenosis can cause debilitating pain and weakness which make movement and performance of normal activities of daily living difficult. Additionally, obesity was strongly associated with sedentary lifestyle and lack of physical activity in the adult population. After consideration of the entire record and the relevant law, the Board finds that the Veteran's sleep apnea is not related to service or to a service-connected disability, and service connection is not established. The probative evidence of record does not show that the Veteran's sleep apnea is related to his active military service. There is also no showing that the Veteran's sleep apnea manifested to a compensable degree within one year following separation from service, there is also no basis for service connection on a presumptive basis. Here, while the Veteran reported tiredness and inability to sleep during service, it was attributed to concerns about his father's health. Additionally, while his partner stated he had known the Veteran since 2001 and witnessed the symptoms of OSA, this is well-beyond one year following the Veteran's separation from service. The Board acknowledges the positive opinion from the private examiner that the Veteran's OSA was at least as likely as not due to his service-connected sinusitis. However, while the medical literature supported a causal relationship between nasal obstruction and OSA, a close review of the VA treatment records does not indicate the presence of nasal obstruction as a result of the service-connected sinusitis. Additionally, the Board finds that while the private opinion provided a positive nexus opinion between the Veteran's OSA and sinusitis, the rationale, including the cited medical literature, failed to specifically link the conditions caused by his sinusitis to his OSA. The cited medical literature only referred to the causal relationship between rhinitis and OSA. To this end, the Veteran's April 2018 VA sinusitis examination, while confirming a diagnosis of chronic sinusitis and allergic rhinitis, found greater than 50 percent obstruction of the nasal passage on both sides due to rhinitis and no evidence of complete obstruction on the left and right side due to sinusitis. The VA examiner also clarified that allergic rhinitis was a "separate and different condition and has no relationship to the chronic sinusitis." The allergic rhinitis is not a service connected condition. Additionally, while the medical opinion suggested that back problems could cause obesity, there was no analysis as to whether this happened in the Veteran's specific case. Thus, because the private medical opinion provided little in the way of specific rationale connecting the specificities of the Veteran's case to the conclusions drawn, the Board assigns the private opinion little probative weight. Furthermore, while the private opinion determined that the Veteran's obesity was the result of his service-connected disability, there was no opinion supporting the contention that his obesity led to his OSA. Specifically, the private examiner's opinion failed to show that the Veteran's obesity was a substantial factor in causing OSA; and the OSA would only have occurred but for the obesity. See VAOPGCPREC 1-2017. The post-service treatment records also failed to establish this relationship. The Board acknowledges the Veteran's sincere belief that his OSA is secondary to his service-connected sinusitis and/or obesity caused by service-connected disabilities. To this end, he is considered competent to report the observable manifestations of his claimed disability. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). His assertions that he experiences symptoms are also credible. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2013), as to the specific issue in this case, given the complexity of the particular question of etiology and the fact that a nexus opinion may not be rendered based on personal observation, the Board finds that the Veteran is not competent to opine on the presence or etiology of his sleep apnea. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (providing that lay persons not competent to diagnose cancer). In sum, the criteria for service connection have not been met for sleep apnea. That is, the evidence does not show that this disability was diagnosed in service or within a year of service, and the evidence persuasively favors the conclusion that it is less likely than not that it existed continuously since service. 2. Service connection for headaches The Veteran testified that he believes his headaches are secondary to his service-connected sinusitis. Service treatment records reflect the Veteran had occasional headaches during service but it is unclear whether they were due to his sinusitis. The December 1998 Report of Medical History at separation reflect the Veteran experienced frequent headaches "during earlier part of [the] year." VA treatment records reflect the Veteran experiences occasional headaches in conjunction with his sinus symptoms. According to the April 2018 VA examination report, the Veteran stated he experienced headaches twice a week in conjunction with his chronic sinusitis. In sum, the Board finds it appropriate to award service connection on a secondary basis for headaches due to sinusitis. 38 C.F.R. § 3.310. It is noted that the grant of service connection does not guarantee a separate compensable rating will be assigned, as headaches are included in the relevant diagnostic code by which a rating for sinusitis is established. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis. Propriety of a Reduction Whether the in evaluation from 30 percent to 10 percent, effective April 17, 2018, for sinusitis was proper To properly reduce a disability rating requires VA to meet both procedural and substantive requirements. Procedurally, where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The beneficiary will be notified at his latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. The beneficiary must also be informed that he may request a predetermination hearing prior to the reduction. Id. at § 3.105(i)(1). Following this 60 day period, a final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. at § 3.105(e). Here, although no reduction notification procedures were undertaken in this case, the Board finds that none were required, as there was no reduction in the overall compensation paid to the Veteran. The special procedural requirements outlined in 38 C.F.R. § 3.105 (e) are therefore not applicable. See VAOPGCPREC 71-91 (Nov. 7, 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed.Cir.2007) (holding that provisions of § 3.105(e) do not apply when there is no change in the overall disability rating). However, reducing a rating also brings concurrent substantive requirements that must be followed. Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 213, 413, 420 (1993). The Board notes that for ratings in effect for five years or more, there are other specific requirements that must be met before VA can reduce a disability rating. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability, and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10, 4.13; Faust v. West, 13 Vet. App. 342, 350 (2000). Further, though a rating reduction must have been supported by the evidence on file at the time of the reduction, pertinent post-reduction evidence favorable to restoring the rating also must be considered. Dofflemeyer v. Derwinski, 2 Vet. App. 277 (1992). Following the Veteran's February 2018 claim for an increased rating in excess of 30 percent for his service-connected sinusitis, a July 2018 rating decision reduced the rating to 10 percent, effective April 17, 2018. A review of the July 2018 rating decision, which pertained to the reduction, shows that the RO appears to have essentially analyzed the issue of reduction of the 30 percent evaluation just as it would a claim for an increased rating. Specifically, the RO failed to discuss the provisions of 38 C.F.R. §§ 3.105 or 3.344 in its analysis. Of particular note, at no time did its analysis discuss the issue of whether there was "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work." Brown, 5 Vet. App. at 421. The RO merely discussed the rating criteria applicable to rating sinusitis. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991). Since the rating decision that accomplished the reduction of the 30 percent rating for the Veteran's service-connected sinusitis did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The appropriate remedy in this case is a restoration of the 30 percent for sinusitis, effective on the date of the reduction. Therefore, the 30 percent disability rating for sinusitis is restored. REASONS FOR REMAND 1. Service connection for an acquired psychiatric disorder, to include adjustment disorder and depression The Veteran contends that his acquired psychiatric disorder is due to his active service. Specifically, he alleges that during service he was sexually harassed and intimated by other service members. An assertion of personal assault in service requires corroboration by credible supporting evidence, but, because personal assault is an extremely personal and sensitive issue, and many incidents are not officially reported, this poses a proof problem with respect to the occurrence of the claimed stressor. However, credible evidence of the stressor may be seen in a Veteran's request for a transfer to another military duty assignment, deterioration in work performance, substance abuse, or unexplained economic or social behavior changes. The Veteran contends he experienced MST while in service which contributed the deterioration of his mental health. MST is a subset of personal trauma and refers to sexual harassment, sexual assault, or rape that occurs in a military setting. The record reflects that the Veteran has been diagnosed with, and treated for, depression and adjustment disorder. The Board acknowledges that the Veteran submitted two buddy statements supporting his claim of MST. First, C.C.T. stated in a February 2002 letter that while on board the USS Concord, he witnessed "harsh treatment" of the Veteran. This included harassment by fellow soldier and "ask[ed] if [the Veteran] would do unspeakable things with them." C.C.T. stated the Veteran was harassed daily and this caused him to be concerned that the Veteran "would harm himself to escape the torture he was subjected to..." C.C.T. stated that the Veteran confided to him that this treatment was taking a toll on his mental health. He stated that the Veteran's behavior changed and seemed depressed and was "jumpy, like he thought someone was going to harm him physically." C.C.T. further stated that this affected the Veteran and led him to seek "professional treatment." Additionally, R.J.W. submitted a statement in February 2020 where he stated that he and the Veteran were onboard the USS George Washington where they became close friends and their friendship continued post-service. He stated the Veteran shared with him the experiences of "harassment and bullying from other service member about his sexuality" onboard the ship. He was called "faggot, homo, and [faced] sexual advances." R.J.W. stated, "I really believe[d] that being sexual[ly] harassed and bullied was one of the main reasons [the Veteran] left the military. Now after many years being out of the military, [the Veteran] is still suffering from the abuse he endured in the military and the abuse is still having an effect on his life." R.J.W. further stated that the Veteran withdraws and isolates himself from others to avoid being ridiculed and judged by others. At the Board hearing, the Veteran's attorney testified that the service personnel records reflected that his performance declined while onboard the USS Concord. Specifically, his attorney stated that performance evaluation report reflecting the period from April 1995 to March 1996 reported a "time of tumultuous personal upheaval" but that the Veteran continued to perform his duties and responsibilities. However, upon a close review of this record, the Board finds this record states that the Veteran excelled in the performance of his duties despite a time of tumultuous "personnel" upheaval, not "personal" upheaval as inaccurately stated by his attorney. Furthermore, the Veteran's attorney referred to a performance report for the period of July 1988 to January 1989 which reflected a decrease in performance. On a scale of 4, the Veteran was rated a 3.8 for each Reliability and Military Bearing, and 3.6 for Personal Behavior. While these assessments are not the full mark of 4, it is questionable whether these ratings reflected a deterioration in the Veteran's work performance. Overall, there are no other markers within the Veteran's military personnel records that the Veteran experienced a decline in his work performance as a result of his MST. Rather, the Board found several performance evaluations and commendations throughout the Veteran's period of service praising his work and attitude. Similarly, the Veteran's service treatment records also did not support the contention that he experienced MST. The Veteran's attorney testified that the November 1988 service treatment record indicated that the Veteran was worrying excessively and could not sleep as a result, which supported the Veteran's MST. A close review of the November 1988 treatment note does reflect that the Veteran reported he was extremely tired and exhausted. However, the Veteran stated he was not getting "good sleep" due to his concern for his father's health. As such, the Veteran's attorney's representation of the November 1988 treatment note is also inaccurate. Significantly, an August 2020 private mental status examination report from Dr. J. Atkinson, Jr., contained a positive nexus opinion stating that the Veteran's "Adjustment Disorder with repressed mood which is persistent is directly related to [MST] and harassment while in the service..." However, Dr. Atkinson based his determination, in part, to "Case Notes" which he reported showed a decrease in performance from July 1988 to January 1989 and the November 1988 service treatment record indicating complaints of tiredness, lack of sleep, and worry. Based on this evidence, the Board finds additional development is warranted as Dr. Atkinson's opinion is not probative. Despite his statement that all pertinent medical records were reviewed in their entirety, including the Veteran's claims file, Dr. Atkinson's determination relied on erroneous or incomplete set of facts as described by the Board above. Dr. Atkinson's statement regarding the thoroughness of his review of the medical evidence of record is contradicted by his inaccurate representation of the facts, i.e., his representation of the November 1988 service treatment note that the Veteran was worried and could not sleep failed to address that it was attributed to concern for his father's health, not MST. Therefore, given these inaccuracies, the buddy statements describing ongoing MST, and as the Veteran has not yet been afforded a VA examination, one should be provided. Finally, Dr. Atkinson also raised the possibility that the Veteran was sexually abused prior to service during his childhood. According to his report, Dr. Atkinson asked the Veteran if he was sexually molested as a child. Dr. Atkinson indicated that the Veteran was hesitant in answering "no" and therefore, he did not believe the Veteran's response. To this end, Dr. Atkinson stated, "I think something did happen in childhood." Given the possibility of sexual trauma prior to the Veteran's military service, the VA examination should also consider and address the possibility of a preexisting condition and aggravation thereof. 2. A rating in excess of 30 percent for sinusitis The Veteran is seeking an increased disability rating in excess of 30 percent for his service-connected sinusitis. He and his attorney testified at the Board hearing that the Veteran has experienced more than six non-incapacitating episodes and has often been prescribed antibiotics for sinusitis. He has also stated that while he sought treatment at the VA, many times he did not. The Board finds that the Veteran's testimony of his current symptomatology regarding his sinusitis shows a possible worsening in severity of his disability since his most recent VA examination in April 2018. Therefore, in light of the Veteran's complaints of worsening symptoms, the Board finds that an examination to ascertain the current severity of the Veteran's sinusitis is needed. The matters are REMANDED for the following actions: 1. Schedule the Veteran for a VA mental health examination and opinion. The examiner is requested to address following: a. With respect to each diagnosed acquired psychiatric disorder, is there clear and unmistakable evidence that the disorder(s) pre-existed service? Why or why not? In responding to this question, the examiner is advised that "clear and unmistakable" means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood. In so doing, the examiner should review the opinion from Dr. Atkinson in which he suggests that the Veteran may have been sexually abused as a child. b. If there is clear and unmistakable evidence that the acquired psychiatric disorder pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disorder was not aggravated by service (meaning that any increase in the disability was not beyond the natural progression of the disorder). Why or why not? c. If the Veteran's acquired psychiatric disorder did not clearly and unmistakably preexist the Veteran's service, is it at least as likely as not (50 percent or greater) that the Veteran's acquired psychiatric disorder began during or was otherwise caused by his military service to include the claimed MST? Why or why not? 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-sinusitis. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yoo, Counsel 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.