Citation Nr: 20077458 Decision Date: 12/07/20 Archive Date: 12/07/20 DOCKET NO. 15-10 591A DATE: December 7, 2020 ORDER Entitlement to service connection for bilateral tinnitus, to include as secondary to and/or aggravated by medications prescribed for service-connected depression, is denied. FINDING OF FACT The objective medical evidence shows the Veteran’s tinnitus is not caused by an event, disease or injury during active duty service, it is not proximately due to, the result of or made worse beyond its natural progression by medications prescribed for service-connected depression, nor did it manifest to a compensable degree within one year of separation from active service. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus, to include as secondary to and/or aggravated by medications prescribed for service-connected depression, have not been met, nor are they presumed to be. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from August 1962 to September 1965. The Veteran testified at a videoconference Board hearing in December 2017 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. Service Connection Generally, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for a disability requires evidence of: (1) The existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). See also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). Additionally, service connection may be granted on a secondary basis for a disability which is proximately due to, the result of or made worse beyond its natural progression by a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Moreover, service connection of a nonservice–connected disease or injury will be established if an increase in severity of the nonservice–connected disability is shown to be proximately due to or the result of a service-connected disease or injury and not due to the natural progress of the nonservice–connected disease or injury. 38 C.F.R. § 3.310 (b). The evidence must show (1) a current disability exists and (2) the current disability was the (a) proximately caused by or (b) proximately aggravated (worsened in severity beyond its natural progress) by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). Certain chronic diseases may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). 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. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing and in-service disease or injury and a nexus for chronic diseases is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was “noted” during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). Entitlement to service connection for bilateral tinnitus, to include as secondary to and/or aggravated by medications prescribed for service-connected depression. The Veteran’s service treatment records (STRs) show that the Veteran’s August 1962 enlistment examination and June 1965 and September 1965 separation examinations show that the categories of “Ears -general,” “Drums” and “Neurologic” were either checked off as normal or had no checks entered for abnormal. Additionally, the August 1962 enlistment examination had additional entries of “No” for past or current ear trouble, hearing loss and running ears. Although audiometric test results were included in the two separation examinations, there were no notations, remarks or comments concerning tinnitus. The post-service record shows the Veteran that in a VA visit in October 2008, the Veteran denied tinnitus. In October 2011, the Veteran, now age 67, presented at VA, reporting “unremitting tinnitus x 1 month.” He further reported first noting bilateral, non-pulsatile tinnitus 3-4 months prior, which was intermittent at first, occurring only at night. He added that now he experiences constant, non-pulsatile tinnitus, left greater than right and believes the ringing increases when he takes his medication at night. In December 2011 the Veteran reported symptoms of pulsatile tinnitus. However, a subsequent cleaning of wax out of the ear relieved the symptoms. In a December 2011 VA ear, nose and throat clinic note, the Veteran reported he has chronic decreased hearing and bilateral tinnitus because of his depression medication. A January 2012 VA mental health attending note states the Veteran “feels that tinnitus worsened after starting [] bupropion.” However, in an April 2012 VA mental health attending note, the Veteran reported that discontinuing bupropion did not decrease the frequency or intensity of tinnitus. An April 2012 VA internal medicine attending note shows the treatment provider decided to “hold” the Veteran’s aspirin prescription for the present to see if his tinnitus improves. In May 2012, when presenting as an otolaryngology outpatient, the Veteran reported infrequent periods of left-ear otalgia when his left-ear tinnitus is particularly loud. However, he denied otorrhea, vertigo/dizziness and nasal/sinus congestion. He further reported that he has a one-year history of decreased hearing and tinnitus from his depression medication. Additionally, by this date, he also denied pulsatile tinnitus. In November or December 2012, the Veteran was fitted for hearing aids, in part, to relieve the symptoms of tinnitus. March 2013 VA audiology progress notes show the Veteran reported the in-service origins of his tinnitus (rifle fire) and that it has been constant since 1962. The note further stated the Veteran was counseled on tinnitus management, ways to change his reaction to his tinnitus and on sound therapy, as well as instructed on the sue of a Sound Oasis machine (providing relaxing sounds to induce sleep). The Veteran reported that his tinnitus gets louder when he is driving in the car, which the treatment provider noted is the opposite of regular perception, as the more sound there is, the less perceived is tinnitus. The Veteran was encouraged to keep using his hearing aids and keep sounds present. A VA otolaryngology outpatient note in July 2013 noted the Veteran’s sensorineural hearing loss and tinnitus. The treatment provider observed that neither had changed, tinnitus bothers the Veteran when he drives, there was no ear pain or vertigo, and the Veteran is satisfied with hearing aids. The treatment provider further noted that the Veteran’s tinnitus was stable. In July 2013, the Veteran underwent a VA examination for hearing loss and tinnitus, in which the VA examiner noted the Veteran’s reports of his tinnitus being intermittent, only becoming constant within the past two years. Based on findings upon examination, the VA examiner opined that the Veteran has a diagnosis of clinical hearing loss and his tinnitus is at least as likely as not (50 percent probability or greater) a symptom associated with the hearing loss, as tinnitus is known to be a symptom associated with hearing loss. She further opined that it is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. She explained: Rationale: Although as an infantryman, the Veteran has a high probability of noise exposure, the Veteran had normal hearing on his separation audiogram from September 1965. Based on the Institute of Medicine Report on noise exposure in the military which concluded that based on current knowledge noise-induced hearing loss occurs immediately, i.e. there is no scientific support for delayed onset noise-induced hearing loss weeks, months or years after the exposure event, and given the Veteran’s hearing was within normal limits at time of separation exam, it is less likely than not the Veteran’s tinnitus was caused by or a result of military noise injury. A VA audiology note in February 2016 noted that, when given the Tinnitus and Hearing Survey, the Veteran scored a 15/16 on tinnitus, 10/16 for hearing, and 6/8 for sound tolerance. When given the Tinnitus Handicap Inventory, he scored a 74/100, validating his complaints. VA audiology notes in March and April 2016 note the Veteran’s reports that he has been continuing the use of nighttime sound generators, meditation and 40 years of Tai Chi to help manage his tinnitus and, additionally, he has found watching television shows he likes also helps. However, he reported tinnitus still causes sleeplessness. In this period, the Veteran reported that tinnitus began when in proximity to a high caliber weaponry on the firing line when in service and has continued ever since. The Board further notes from the record an October 2018 VA mental health attending note contains the Veteran’s report that tinnitus has become more constant and wonders if his trial-use of bupropion and citalopram could have caused it to become more constant. The treatment provider stated it is a possibility. Additionally, he was interested in stopping Cymbalta to see if tinnitus will improve. A November 2018 VA mental health note shows the Veteran’s attending physician advised him tinnitus may or may not improve when discontinuing Cymbalta and that his depressive symptoms must be closely watched for recurrence. The Veteran also wanted to discontinue duloxetine as a trial to see if it will improve his tinnitus, even though he had been reporting tinnitus began in the service. A February 2019 VA health maintenance note indicates the Veteran was informed that there is one case report in literature in which mirtazapine was used to treat a case of tinnitus induced by an SSRI [selective serotonin reuptake inhibitor]. The Veteran agreed to a trial of mirtazapine for his tinnitus. Also in February 2019, the Veteran, now on no medications, reported the “‘[b]ad microphone sound’ part of his tinnitus has gone away with the discontinuance of duloxetine. But, majority of his tinnitus is still there.” In a March 2019 visit for depression medication, the Veteran was advised that fluoxetine could worsen his tinnitus, but it was started on a low dose with close monitoring of his tinnitus. A VA mental health note in May 2019 noted that the Veteran feels like tinnitus was triggered by either bupropion or citalopram. However, the Veteran was advised in June 2019 that tinnitus is an uncommon side-effect of bupropion, any side-effects typically cease and loud noise and not medication likely caused his tinnitus. A VA mental health note in May 2019 noted the Veteran’s treatment history depression with medications as fluoxetine, Buspar, sertraline, Effexor, mirtazapine, Wellbutrin, trazodone, citalopram and noted again the Veteran’s report that he feels tinnitus is triggered by either bupropion or citalopram. In August 2019, the treatment provider also noted the Veteran’s history of exposure to loud noise in the military and initial tinnitus at that time. A June 2019 VA mental health note shows the Veteran was advised that tinnitus is an uncommon side-effect of bupropion, but with “Citalopram it’s much more rare, but does exist in post-marketing data. Discussed side effects typically go away with medication. In the case of the patient, likely pt had exposure to loud noises prior that made him more sensitive to develop tinnitus and not the medications themselves solely contributing to his current tinnitus.” After the Board’s denial of this claim and upon appeal to the Court of Appeals for Veterans Claims (Court), the May 2019 Joint Motion for Remand (JMR) submitted by the parties noted that, during the course of his appeal, the Veteran asserted that medication he takes for his service-connected depression causes and/or worsens the ringing in his ears. The JMR asserted that the Board failed to address this theory of entitlement. In November 2019, the Board remanded the claim for a new VA opinion addressing whether the Veteran’s tinnitus is proximately due to, the result of or made worse beyond its natural progression by the use of prescribed medications for service-connected depression, to include bupropion (Wellbutrin), citalopram (Celexa), Fluoxetine, BuSpar, sertraline, Effexor, mirtazapine, trazodone, Cymbalta (duloxetine), and any other medication prescribed for depression which appears in the record. As directed, a January 2020 VA examiner conducted an in-person examination of the Veteran, reviewed the record and rendered an opinion, stating tinnitus is less likely than not (less than 50 percent probability) caused by or a result of military noise exposure. She explained: Rationale: Veteran’s MOS [military occupation specialty] of Infantry indicates a high probability of hazardous noise exposure. Veteran’s separation examination shows normal hearing sensitivity in both ears across the range of frequencies tested. Veteran reported that prior to beginning these medications he had a ringing in his ears, after being exposed to loud noises that would subside after a few hours. This is a normal auditory response to loud (Tyler, 2000) [sic]. Veteran reported the constant ringing in his ears began post-separation after he began taking the medications listed above. Tinnitus can be a side effect of certain medications. Additionally, [o]nset of tinnitus is reported by the Veteran to be post-separation. There is no report of tinnitus in service treatment records or at separation. The current literature does not support late onset noise-induced tinnitus. Although the opinion addressed direct causation and mentioned medications, the VA examiner was requested by the Agency of Original Jurisdiction (AOJ) to produce another opinion to address with greater specificity the possibility of secondary causation and aggravation due to the various depression medications. In August 2020, the VA examiner again reviewed the evidence and opined that tinnitus is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service connected condition. She explained: Rationale: Veteran’s previous C&P exams from 2013 and 2015 state tinnitus began during military service in 1965. Much before use of prescribed medications for service connected depression. Although some medications are known to cause tinnitus as a side effect[,] Veteran’s conflicting reports of the onset of his tinnitus do not ultimately support that prescribed medication is the cause of his tinnitus. Therefore, it is less likely than not that veteran’s tinnitus is a result of prescribed medication after military service. However, the AOJ informed the VA examiner that she only addressed secondary service connection and, as she herself had noted that the onset of tinnitus was prior to the Veteran’s prescribed medication, an aggravation opinion is required. Later in August 2020, the VA examiner responded with an addendum opinion, in which she opined as follows: It is less likely than not that Veteran’s tinnitus [is] aggravated beyond normal progression due to use of prescribed medication for depression. Anxiety and depression themselves are known to exacerbate tinnitus symptoms, so treating anxiety and depression can help alleviate tinnitus symptoms. Tinnitus itself is subjective and there is no way to prove aggravation in this case. Other factors such as sleep, stress, salt/alcohol/caffeine consumption also have well researched effects on tinnitus. There is no way to prove that it is the medication alone causing a worsening of this veteran’s tinnitus symptoms; therefore, it is less likely than not a result of use of prescribed depression medication. The foregoing summary of treatment does not provide evidence of direct causation of tinnitus by any event, injury or illness during active duty service. As stated above, treatment records show the Veteran’s first reports at VA of bilateral, non-pulsatile tinnitus in October 2011, first noting it only 3 to 4 months prior and approximately 46 years after separation from active duty service. The Veteran in fact specifically denied having tinnitus or hearing loss as recently as October 2008, as shown in a VA progress note. Additionally, the July 2013 VA examiner took note of the Veteran’s report that his tinnitus only became constant in the two previous years. Additionally, there is no objective evidence of military noise injury while in service, as noted by the July 2013 VA examiner. Although the Veteran has testified that he did not have a hearing examination upon discharge from service, the record shows what appear to be two separation examinations, one designated “Separation” in June 1965 and another as “Sep. Pay.” in September 1965, which contains on line 77 the handwritten note that the Veteran is qualified for “Separation.” Both examinations in fact contain audiometric results produced from hearing examinations. The entries are not identical and have only slight numeric differences, but nonetheless indicate two separate hearing examinations. As stated earlier in this decision, there are no remarks, comments or notations by the in-service examiners which accompany the results to indicate symptoms of tinnitus. Additionally, the July 2013 VA examiner stated in her opinion’s rationale that current audiology literature does not support late-onset noise-induced tinnitus. The January 2020 VA examiner addressed secondary causation of the Veteran’s tinnitus and concluded that his assertions throughout the record that tinnitus began during infantry training, such as in his November 2012 lay statement and April 2015 Veterans Appeals Form 9, contradict his other assertions that tinnitus is now caused by medications for depression. As a factual determination for adjudication purposes, the Board agrees. Additionally, as a subjective disease, she further concluded there is no way to prove that medication alone caused a worsening of tinnitus symptoms, thereby aggravating it. Lastly, “Organic diseases of the nervous system” are included among chronic diseases eligible for presumptive service connection under 38 C.F.R. § 3.309 (a). VA considers tinnitus to fall within this category. However, the record offers no evidence of the manifestation of tinnitus to a compensable degree within one year of separation from active service. Additionally, because it was never identified in service or directly after, and putting aside the lack of medical evidence of treatment for hearing loss at that time, it would be otherwise impossible to establish continuity of symptomatology based on the identification of symptoms during, directly after or continuing for a longer period after active service. Consequently, the presumption of service connection for tinnitus as a chronic disease, is not available to the Veteran. Turning to the Veteran’s lay evidence, the Board has carefully reviewed and considered the Veteran’s December 2017 Board hearing testimony, his November 2012 correspondence statement, the statement accompanying his April 2015 VA Appeals Form 9, and his August 2015 correspondence statement, as well as his numerous reports to treatment providers, as they appear throughout the record. The Board acknowledges that lay persons are competent to report symptoms which impact their senses, events they observe and the drawing of certain inferences and there is no reason otherwise to doubt their credibility. However, although it is error to reject categorically a lay person as competent to provide a nexus opinion, not all questions of nexus are subject to non-expert opinion. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Whether a lay person is competent to provide a nexus opinion depends on the facts of the particular case. In Davidson, the United States Court of Appeals for the Federal Circuit (Federal Circuit) drew from an earlier decision to explain its holding. In that earlier decision, the Federal Circuit stated the following: “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, (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.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Federal Circuit provided an example, stating that a lay person would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question, such as a form of cancer. Id. at n.4. Also of note, it was the United States Court of Appeals for Veterans Claims (the Court) which explained that non-expert witnesses are competent to report that which they have observed with their own senses, as already mentioned above. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Taking Davidson, Jandreau and Layno together, the complexity of the question and whether a nexus opinion could be rendered based on personal observation are factors in determining whether a non-expert nexus opinion or diagnosis is competent evidence. Looking first to the December 2017 Board hearing, the Veteran testified tinnitus began in service during active duty advanced infantry training with rifles on a firing line, due to excessive and repeated noise when rifles and other weapons were fired. He further testified that tinnitus has been constant from his first drills in service to the present, with ever-worsening symptoms. The Veteran adds that at present his tinnitus manifests at different pitches and volumes and interferes with his sleep. The Veteran’s testimony and his various lay statements consist essentially of the Veteran’s assertions that tinnitus was either caused by in-service noise exposure or caused or made worse by medications. Nonetheless, the Veteran’s lay evidence must in turn be weighed against other evidence, as all relevant evidence of varying kinds must be considered. As the Board has indicated, the Veteran’s testimony and his lay statements, without factual support shown in the record, demonstrate only the belief of the Veteran as a lay person that a certain legal conclusion should be reached. What remains in the Veteran’s testimony and other lay evidence is no more than the suggestion that tinnitus is associated with prescribed medications. However, such an inference is not competent evidence, as this is a complex medical question. As already stated, the Veteran’s reports tinnitus began in service, but also reports that he first noticed it in October 2011, approximately 46 years later. These conflicting reports present awkward and problematic inconsistencies. See Jandreau, 492 F.3d at 1377. The Veteran is competent to report the sensations of hearing static-like noise or a “swishing” sound, as it was personally experienced by him. However, the inferences he has drawn from what he has experienced and observed fall outside the realm of his competency and, not being a medical expert, he is therefore not able to identify the origins, distinctions in pathology and causes, whether by medications or otherwise, concerning what he feels and hears. For the reasons stated, the Board ascribes greater probative weight to the examination findings and opinions of the July 2013 and January 2020 VA examiners. As they were rendered by medical professionals after objective review of the medical evidence of record and in-person examination of the Veteran, they display a thorough knowledge of the Veteran’s medical history and their conclusions have exhibited consistency and sound clinical judgment. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection on any basis. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Franke, Associate 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.