Citation Nr: 18143376 Decision Date: 10/19/18 Archive Date: 10/18/18 DOCKET NO. 16-31 892 DATE: October 19, 2018 ORDER Entitlement to service connection for tinnitus is denied. REMANDED Entitlement to service connection for depression is remanded. FINDING OF FACT Tinnitus did not arise in active duty service or first manifest to a compensable degree within a year of active duty service and is not otherwise etiologically related to active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the United States Army from September 1969 to April 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to service connection for tinnitus Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to show a service connection, there must be (1) a competent diagnosis of a current disability;(2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Certain chronic diseases, including organic disease of the nervous system such as tinnitus, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The Board finds as an initial matter that there is no question that the Veteran has a current diagnosis of tinnitus, as confirmed at the Veteran’s January 2013 VA audiological examination. Accordingly, the Board will turn to the central questions of whether this disability first arose in service, manifested to a compensable degree within a year of the Veteran’s discharge from service, or is otherwise etiologically related to active duty service. Notably, the record contains numerous inconsistencies with respect to the Veteran’s contentions regarding the course and onset of his tinnitus. In his June 2012 claim form, the Veteran was asked the date the disability occurred, and he indicated at that time that tinnitus began in January 2002. A review of the Veteran’s claims file fails to uncover any treatment record or clinical note indicating he ever sought treatment for or was diagnosed with tinnitus prior to that date. Similarly, the Veteran’s service treatment records do not contain any mention of tinnitus-related symptoms and the Veteran underwent a reportedly unremarkable clinical examination at the time of his March 1972 separation evaluation. The first clinical reports of tinnitus appear to be from a treatment note completed in November 2004 by the Veteran’s primary care physician at which he was noted to have chronic serous otitis media with associated signs and symptoms of hearing loss and tinnitus. The record indicates that the Veteran received a subsequent evaluation in February 2005 with an otolaryngologist, who noted that the Veteran had chronic eustachian tube dysfunction and secretory otitis media with associated tinnitus. To evaluate the Veteran’s claim, he was afforded the above-mentioned January 2013 VA audiological examination. In contrast to the earlier statement in the June 2012 claims form that his tinnitus occurred in January 2002, the audiological examiner reported that the Veteran had stated that his tinnitus began approximately 20 years earlier. In his June 2016 VA Form 9, the Veteran instead stated that he first noticed a slight clicking noise between 1973 and 1974 while lying quietly in bed in addition to developing at that time annual episodes of dizziness, nausea, and passing out that occurred roughly the same time of year. The Veteran is competent to report the observable symptoms of tinnitus as well as his statement in the VA Form 9 regarding the significant noise exposure he stated he experienced in active duty service. Nonetheless, the Board finds that the significant inconsistencies regarding the reported onset of the Veteran’s tinnitus reduces the probative weight and credibility of the recent claim that these symptoms began as early as 1973. Although he is competent to report on the symptoms he experiences and the noise exposure that occurred in service, the record does not indicate that he possesses the medical knowledge, training, or experience to provide a competent opinion regarding the complex medical question of the etiology of his tinnitus. See Jandreau, supra. To evaluate that question, VA arranged the January 2013 audiological examination with a trained audiologist who is competent to provide such an opinion. After personally examining the Veteran and reviewing the claims file, she ultimately opined that it was less likely than not that his tinnitus was caused by or a result of military noise exposure. She explained that the Veteran reported that his tinnitus had its onset roughly 20 years after military service and stated that tinnitus due to noise exposure or acoustic trauma typically has its onset immediately after or shortly following the traumatic event. The Board finds that this opinion, which appears to be based on her experience and training as an audiologist, provides a clear, understandable, and persuasive answer to the question of whether the Veteran’s tinnitus is related to his active duty service. Moreover, it appears consistent with the record as it appeared at the time of the examination given that the Veteran had not yet contended that his symptoms had first arisen in 1973 or 1974. Ultimately, the Board finds that this audiologist’s opinion is supported by a reasoned rationale and is both the most probative and the most credible of the competent evidence relating to the etiology of the Veteran’s tinnitus. In making this finding, the Board acknowledges the July 2018 appellate brief in which the Veteran’s representative cited medical literature regarding the onset of tinnitus. However, that medical literature appears to only state that a single instance of noise exposure may be hazardous and that the noise doses associated with hearing loss are likely to be associated with tinnitus. It does not address the specific facts of the Veteran’s claim, to include the issue of whether his contended in-service noise exposure caused the subsequent development of his tinnitus. The Board therefore finds that the preponderance of the credible, probative, and competent evidence is against the contention that the Veteran’s tinnitus arose in service, manifested to a compensable degree within a year of his separation from service, and is otherwise etiologically related to active duty service. As such, the doctrine of the benefit of the doubt is not for application and the claim for service connection for tinnitus must be denied. REASONS FOR REMAND Entitlement to service connection for depression is remanded. The Veteran also was afforded a February 2013 VA examination in connection with his claim for service connection for depression. The psychologist indicated that symptoms related to the in-service stressor had resolved and that the Veteran did not have subsequent psychological treatment until only two years before than the date of examination. However, private treatment notes suggest that the Veteran’s psychological symptoms may be attributable to or have been worsened by his physical symptoms. Specifically a private treatment note from August 2010 suggests these psychological symptoms were exacerbated by the Veteran’s physical health problems. Notably, the Veteran receives VA disability compensation benefits for coronary artery disease. The February 2013 VA examination report did not address the possibility of secondary service connection or the question of whether the Veteran’s active service may have caused the subsequent development of his depression, notwithstanding a gap in treatment. The Board therefore finds that an addendum opinion must be obtained. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the following questions: (a.) Is it at least as likely as not that the Veteran’s depression is etiologically related to his active duty service, to include the in-service reports of nervous trouble, his contention that he has not been able to attend Fourth of July celebrations since service due to nervousness around fireworks, and his reported in-service grief regarding the death of a friend? (b.) Is it at least as likely as not that the Veteran’s depression is proximately due to his service-connected coronary artery disease? (c.) Is it at least as likely as not that the Veteran’s depression has been aggravated by (worsened in severity beyond the natural progression of the disability) his service-connected coronary artery disease? MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel