Citation Nr: A25041203 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240329-427209 DATE: May 6, 2025 ORDER Service connection for a sinus disability is denied. FINDING OF FACT The evidence available for review is persuasively against a finding that the Veteran had a chronic disability of the sinuses at any time during the pendency or proximate to the filing of his claim. CONCLUSION OF LAW The criteria for an award of service connection for a sinus disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 2009 to September 2009, and from April 2017 to July 2018, to include service in Afghanistan. He also had service in the Army National Guard, to include a period of active duty for training from July 2007 to October 2007. His decorations include the Afghanistan Campaign Medal and the Combat Action Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2024 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran timely appealed to the Board by filing a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)) in March 2024, requesting direct review of the evidence considered by the agency of original jurisdiction (AOJ). 38 C.F.R. §§ 20.201, 20.202(b)(1). Under the direct review option, the Board may only consider the evidence of record at the time of issuance of the January 2024 rating decision on appeal. 38 C.F.R. § 20.301. The Board cannot consider evidence submitted after that decision was promulgated. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered that evidence in its decision on the Veteran's claim. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Service connection for a sinus disability is denied. The Veteran seeks to establish service connection for a sinus disability, to include sinusitis. He believes that he has a sinus disability that is attributable to his exposure to particulate matter during service. Of note, he is already service connected for allergic rhinitis. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The requirement of a current disability is satisfied when the claimant is shown to have the disability either at the time he files his claim for service connection, or during the pendency of that claim, even if the disability resolves prior to final adjudication. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). When the record contains a recent diagnosis of disability prior to the filing of a claim for benefits based on that disability, the report of diagnosis is relevant evidence that must be addressed in determining whether a current disability existed at the time the claim was filed or during its pendency. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A layperson is generally incapable of opining on matters requiring medical knowledge. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In essence, lay testimony is competent when it pertains to the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the veteran's present condition (e.g., whether the veteran's condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). See Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An approximate balance of the evidence includes, but is not limited to, equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id. The question for the Board is whether the Veteran has a sinus disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board must conclude that he does not. In short, although the evidence reflects a finding of rhinitis during and after service, the evidence properly available for review is persuasively against a finding that he had a chronic sinus disability at any time during the pendency or proximate to the filing of his claim. Romanowsky, 26 Vet. App. at 294; McClain, 21 Vet. App. at 321. The Veteran filed his claim for service connection in August 2023. Thereafter, he was afforded an in-person VA examination in connection with his claim in January 2024. Following an examination of the Veteran and review of the claims file, the examiner found that the Veteran had allergic rhinitis, but not chronic sinusitis or any other disability of the sinus, nose, throat, larynx, or pharynx. As to the specific presence of a sinus condition, the examiner indicated that there was no objective evidence to support a diagnosis. None of the other evidence available for review demonstrates that the Veteran had a chronic sinus disability at any time during the pendency or proximate to the filing of his claim. In addition, as noted previously, he is already service connected for allergic rhinitis. Following review of the available evidence, the Board must find that the evidence is persuasively against the Veteran's claim. In short, none of the medical evidence shows that he had a chronic disability of the sinuses at any time during the pendency or proximate to the filing of his claim. The Board has considered the Veteran's statements in this regard. While he is competent to report his observable symptoms, there is nothing in the record to establish that he has the specialized training or experience necessary to render a competent opinion with respect to medically complex matters relating to the etiological origin of his symptoms or to diagnose a chronic sinus condition. As such, his opinion in that regard is not entitled to any probative weight. In any event, the Board affords more weight to the VA examiner's opinion in that regard. As the evidence is persuasively against the claim, the benefit-of-the-doubt doctrine is not for application. The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.