Citation Nr: A26017444 Decision Date: 02/26/26 Archive Date: 02/26/26 DOCKET NO. 231212-401070 DATE: February 26, 2026 ORDER Entitlement to an initial evaluation in excess of 10 percent for chronic sinusitis is denied. Entitlement to service connection for treatment purposes only for an acquired psychiatric disorder, claimed as posttraumatic stress disorder (PTSD), is denied. REMANDED Whether the character of the Veteran's discharge from the period of service from January 26, 2000, to September 25, 2001, constitutes a bar to the receipt of VA benefits is remanded. Entitlement to service connection for treatment purposes only for a lumbar spine disability is remanded. Entitlement to service connection for treatment purposes only for sleep apnea is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's sinusitis manifested in three non-incapacitating episodes of sinusitis per year. 2. There is no evidence of a current psychiatric disorder in the record available for review in this appeal. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.97, Diagnostic Code 6513. 2. The criteria for establishing service connection for treatment purposes only for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.360. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from February 1996 to September 2001. The character of the portion of this service from January 26, 2000, to September 25, 2001, is one of the subjects of this appeal. The rating decisions on appeal were issued by the agency of original jurisdiction (AOJ) in January 2023 (lumbar spine), March 2023 (PTSD), and August 2023 (sinusitis and sleep apnea). In a timely VA Form 10182 (Decision Review Request: Board Appeal) received in December 2023, the Veteran elected the Evidence Submission option for this appeal. Therefore, the Board may consider only the evidence relevant to each claim that was present in the record at the time of the respective AOJ decision, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. See 38 C.F.R. § 20.303. If evidence was submitted during the period after the AOJ issued the decision on appeal or after the 90-day period following receipt of the Form 10182, the Board did not consider it in this decision. See 38 C.F.R. §§ 20.300, 20.303, 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. See 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. See id. Specific instructions for filing a Supplemental Claim are included with this decision. However, because the Board is remanding certain issues on appeal, any evidence the Board could not consider will be considered by the AOJ in the adjudication of these claims. See 38 C.F.R. § 3.103(c)(2)(ii). Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required 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 disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Entitlement to an initial evaluation in excess of 10 percent for chronic sinusitis The Veteran is currently in receipt of a 10 percent evaluation for chronic sinusitis under Diagnostic Code 6513, effective June 13, 2023, the date of service connection. Diagnostic Code 6513 uses the General Rating Formula for Sinusitis, which provides for a 10 percent evaluation where there are one or two incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned where there are three or more incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment, or more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A maximum 50 percent evaluation is assigned where a person has received radical surgery with chronic osteomyelitis, or there is near constant sinusitis characterized by headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, General Rating Formula for Sinusitis, Note. Here, the Veteran has not provided or identified any private treatment records documenting treatment for sinusitis. With his June 2023 claim for service connection for sinusitis, he reported irritated sinus with runny nose, scratchy throat, irritated eyes, and severe headaches. In July 2023, the Veteran was afforded a VA examination, at which he reported experiencing watery eyes, scratchy throat, headaches, shortness of breath, nose bleeds, and sinus pressure. He reported no current symptoms at the time of the examination. The Veteran endorsed having three non-incapacitating episodes of sinusitis in the past year, and no incapacitating episodes. The Veteran denied having sinus surgery in the past. The examiner noted no other symptoms of sinusitis or other upper respiratory conditions. Later in July 2023, the Veteran's VA treatment records reflect a report of runny nose, sinusitis, nasal congestion, and postnasal drip. The Veteran reported he was treating these symptoms effectively with an over-the-counter decongestant. After careful review of the evidence of record, the Board finds an increased initial evaluation for sinusitis is not warranted in this case. The Veteran reported having three non-incapacitating episodes of sinusitis in the past year. Applying this evidence of record to the General Rating Formula corresponds to a 10 percent evaluation, which is currently assigned. The evidence of record does not correlate to a finding that there are more than six non-incapacitating episodes of sinusitis per year or near-constant sinusitis, as the Veteran reported only three non-incapacitating episodes of sinusitis in the last year, was not experiencing sinusitis symptoms at the time of the examination. Likewise, the record does not reflect any incapacitating episodes of sinusitis, as there is no indication the Veteran required bedrest and treatment by a physician. Further, he denied having any surgeries to treat his sinusitis and reported treatment with over-the-counter medications. For these reasons, the Board finds that the Veteran's sinusitis does not warrant an evaluation in excess of 10 percent. Therefore, the claim for an initial evaluation in excess of 10 percent for sinusitis is denied. 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; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303, Hickson v. West, 12 Vet. App. 247, 252-53 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Entitlement to service connection for treatment purposes only for an acquired psychiatric disorder, claimed as PTSD As an initial matter, the Board notes the Veteran filed a claim for service connection for PTSD. As the Veteran is not expected to possess the medical knowledge to describe the universe of his claim and the record indicates the possibility that other psychiatric disorders are present, the Board has recharacterized his claim as one of service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In September 2022, the Veteran submitted a statement reporting an in-service stressor. He reported that a fellow sailor had died by suicide in August 2000 when he jumped from the ship and that he was present when the sailor's body was recovered. Also in September 2022, the Veteran submitted a written statement describing current psychiatric symptoms including avoidance behaviors, flashbacks to a stressful event in service, panic attacks, sleep impairment, self-medication with alcohol, and hypervigilance. He did not report receiving any mental health treatment or having received any psychiatric diagnosis. The AOJ scheduled a VA psychiatric examination in October 2022. The record contains a letter notifying the Veteran of this examination, and reflects that he was also notified by telephone and text message. However, the Veteran did not attend the examination. In January 2023, the AOJ requested further details of the in-service stressor, as the information provided in the September 2022 statement was insufficient to request verification of the stressor. The Veteran did not respond to this request. The Veteran's VA treatment records do not contain any records of mental health treatment prior to the decision on appeal. He did not submit or identify private treatment records prior to the decision on appeal, and did not submit any treatment records, either VA or private, during the applicable evidence window. After careful review of the evidence of record, the Board finds that service connection for an acquired psychiatric disorder is not warranted in this case. Specifically, the Board finds there is no evidence of a current diagnosis in the evidence available for the Board to review. See 38 C.F.R. § 20.303. Although the Veteran reported current psychiatric symptoms, he failed to attend the VA examination which would identify any current diagnoses and provide further relevant evidence for this claim. Further, he did not provide or identify any treatment records reflecting a current diagnosis. The Board finds VA has fulfilled its duty to assist the Veteran in developing this claim, but that the evidence of record available for review in this appeal is insufficient to establish a current psychiatric disability. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (the duty to assist is not a one-way street). As there is no evidence of a current disability, the Board finds that service connection for an acquired psychiatric disorder is not warranted in this case. See Brammer, 3 Vet. App. at 225. REASONS FOR REMAND 1. Whether the character of the Veteran's discharge from the period of service from January 26, 2000, to September 25, 2001, constitutes a bar to the receipt of VA benefits is remanded. When a person is seeking VA benefits, it first must be shown that the service member, upon whose service such benefits are predicated, has attained the status of a 'veteran' for VA purposes. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). "The term veteran means a person who served in the active military, naval or air service, and who was discharged or released therefrom under conditions other than dishonorable." 38 U.S.C. § 101(2). VA benefits are not payable unless the period of service upon which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 5303; 38 C.F.R. § 3.12(a). The Veteran filed a claim for service connection for PTSD, reporting an in-service stressor that occurred in approximately August 2000. Similarly, there is evidence in the service treatment records of reports of back pain made during the Veteran's second period of service, and he reported the onset of snoring in the year 2000, during the second period of service. As this period of service not currently considered honorable for VA purposes, the Board finds the Veteran's claim includes a claim to review his status as a veteran regarding benefit claims arising from this period of service. See D'Amico v. West, 209 F.3d 1322, 1326 (2000) ("[a] claim for veteran's disability benefits has five elements: (1) veteran status; (2) existence of a disability; (3) service connection of the disability; (4) degree of disability; and (5) effective date of the disability"). In June 2024, amendments to the regulation governing character of discharge went into effect, allowing VA to consider whether compelling circumstances mitigated willful and persistent misconduct in service. See Update and Clarify Regulatory Bars to Benefits Based on Character of Discharge, 89 Fed. Reg. 32,361 (April 26, 2024) (codified at 38 C.F.R. § 3.12). In the Federal Register notice announcing the amendments, VA specified that any claimant with a prior unfavorable character of discharge determination may request a new determination using the amended regulations. Update, 89 Fed. Reg. 32,361, § V. As the amended regulation must be considered in this case, the Veteran has the right to have this determination made by the AOJ in the first instance. Therefore, to fulfill the regulatory duty, a remand is necessary to issue an administrative decision reviewing the character of the Veteran's discharge from the period of service from January 26, 2000, to September 25, 2001, under the amended regulation. See 38 C.F.R. § 20.802(a). 2. Entitlement to service connection for a lumbar spine disability is remanded. In September 2022, the AOJ requested a VA lumbar spine examination, but no examination was scheduled due to a restriction in the contract with the examination vendor. As the Veteran's service treatment records contain a report of recurrent back pain, the Board finds it was an error in fulfilling VA's duty to assist not to obtain an examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). The record does not contain evidence addressing whether there is any relationship between the Veteran's current lumbar spine symptoms and his service; therefore, a remand is necessary to obtain an examination. See 38 C.F.R. § 20.802(a). 3. Entitlement to service connection for treatment purposes only for sleep apnea is remanded In July 2023, the Veteran reported at a VA examination that he started experiencing snoring, difficulty breathing, constant tiredness, and headaches during service in the year 2000. The AOJ obtained an opinion addressing whether the Veteran's sleep apnea was caused by in-service toxic exposures, but did not obtain an opinion addressing whether the Veteran's sleep apnea had its onset during service or was otherwise directly related to service. There is no medical evidence in the record regarding the development of sleep apnea and whether, in the Veteran's particular case, the symptoms he reported experiencing in service were associated with current sleep apnea. The Board finds it was an error in fulfilling VA's duty to assist not to obtain a direct service connection opinion, as there is an indication the Veteran's sleep apnea might have had its onset in service but insufficient medical evidence in the record to determine whether this is so. See McLendon, 20 Vet. App. at 83. Therefore, a remand is necessary to obtain an opinion addressing whether the Veteran's sleep apnea is directly related to service. The matters are REMANDED for the following action: 1. Issue a new character of discharge determination made using the revised provisions of the character of discharge regulation. See 38 C.F.R. § 3.12. 2. Schedule an examination with an appropriate clinician to determine whether any current lumbar spine disability is related to the Veteran's military service. Following review of the claims file and examination of the Veteran, the examiner should identify all current lumbar spine disabilities present during the course of this appeal. For EACH disability identified, the examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the lumbar spine disability began in or is otherwise caused by the Veteran's active service. In providing the opinion, the examiner should address the April 2001 service treatment record in which the Veteran reported recurrent back pain. For the purposes of the opinion, the examiner should assume the Veteran's statements about his symptoms are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition. The Board emphasizes that this does not constitute a positive credibility determination, as VA will weigh the evidence upon adjudication. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In doing so, the examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record, and may state whether the Veteran's lay statements are supported by medical or other evidence. The examiner may not dismiss the Veteran's statements about his symptoms solely because they are not documented in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. 3. Forward the claims file to an appropriate clinician to determine whether the current sleep apnea disability is related to the Veteran's military service. If the examiner determines that an additional in-person examination is required, one should be scheduled. Following review of the claims file and, if indicated, examination of the Veteran, the examiner should opine whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the sleep apnea began in or is otherwise caused by the Veteran's active service. For the purposes of the opinion, the examiner should assume the Veteran's statements about his symptoms are credible, unless they are inconsistent with the medical evidence or with medical principles concerning his condition. The Board emphasizes that this does not constitute a positive credibility determination, as VA will weigh the evidence upon adjudication. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. In doing so, the examiner may identify any discrepancies, inconsistencies, or contradictions contained in the evidence of record, and may state whether the Veteran's lay statements are supported by medical or other evidence. The examiner may not dismiss the Veteran's statements about his symptoms solely because they are not documented in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Josey 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.