Citation Nr: 20044827 Decision Date: 07/06/20 Archive Date: 07/06/20 DOCKET NO. 16-40 463 DATE: July 6, 2020 ORDER Entitlement to service connection for tinnitus, to include as secondary to service-connected posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), is denied. FINDING OF FACT Tinnitus did not manifest in active duty service and is not otherwise shown to be attributable to active duty service. Tinnitus was not proximately caused by, or aggravated beyond its natural progression by, PTSD with MDD. CONCLUSION OF LAW The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304. 3.310 (2019) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty as a United States Navy culinary specialist from February 2004 to July 2005. This appeal comes before the Board of Veteran’s Appeals (Board) from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The transcript of that proceeding has been associated with the claims file. Service Connection The Veteran contends that tinnitus was incurred in active duty service. Alternatively, the Veteran contends that tinnitus was proximately caused by, or aggravated beyond its natural progression by, PTSD with MDD. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. In order to establish service connection on a direct basis, the record must contain competent evidence of: (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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). 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. Secondary service connection is permitted based on aggravation; compensation is payable for the degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran is competent to report a current diagnostic impression of tinnitus. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) (noting that lay testimony may establish the presence of tinnitus because ringing in the ears is capable of lay observation). Evidence and Analysis Service personnel records show that his Navy occupational specialty (rating) was a culinary specialist (cook). As the RO noted in the August 2016 statement of the case (SOC), the Veteran’s rating is considered to have a low probability of acoustic trauma due to military noise exposure during active duty service. See August 1, 2016 SOC, p. 22. The Veteran’s service treatment records (STRs) do not contain complaints of, treatment for, or a clinical impression of, tinnitus. STRs show that the Veteran did experience an allergic reaction to shrimp, which caused a host of symptoms from wheezing to skin irritation; however, these symptoms did not include tinnitus. The Veteran was also hospitalized for anaphylactic shock. A clinician prescribed several medications to alleviate the associated symptoms. The Veteran’s June 21, 2005 Separation Report of Medical Assessment makes no mention of tinnitus. The Veteran’s 1000 plus pages of VA treatment records start with new outpatient treatment in April 2014. The records are silent for reported symptoms of tinnitus (“ringing or buzzing in the ears”) until October 2015 when the Veteran reported the symptom to outpatient clinicians. In a February 2016 audiology assessment, the Veteran reported tinnitus once or twice every other week lasting one to two minutes with an occasional low level of pain. A hearing acuity and organic ear examination was normal and there were no comments on the date of onset or possible causes. In December 2018, the Veteran denied any tinnitus but reported sinus congestion. He again reported tinnitus in December 2019. At the September 2019 Board hearing, the Veteran testified that VA had not provided a diagnosis of tinnitus; however, the Veteran did convey that VA clinicians informed him that the ringing in his ears could be from his sinuses. When questioned whether the ringing in his ears is associated with some medication prescribed, the Veteran responded that he did not “think so.” See September 18, 2018 Hearing Transcript, pp. 15-16. A review of the evidence of record discloses that the Veteran is neither service connected for sinus (“allergies”) or allergic rhinitis. See June 25, 2020 Rating Decision—Codesheet, p. 2. In November 2019, the Veteran was afforded a VA hearing loss and tinnitus examination. (As hearing loss is not before the Board on appeal, the Board limits its analysis to findings related to tinnitus exclusively.) A VA audiologist reviewed the claims file; considered the Veteran’s subjective accounts; and conducted an evaluation. The audiologist indicated that the Veteran reported that after he ate some shellfish during active duty in 2004, he went into anaphylactic shock. The Veteran claimed that he has experienced bilateral tinnitus 3-to-4 times weekly lasting for 10-to-15 minutes. The audiologist opined that tinnitus is less likely than not caused by or the result of military noise exposure. As a rationale for this negative nexus opinion, the audiologist noted that medical records show that the Veteran suffers from a sinus condition. Moreover, the audiologist wrote that the Veteran takes a number of medications for his sinus condition, including non-steroidal anti-inflammatory drugs (NSAIDS). Sinus problems, active allergies, and NSAIDS, according to the audiologist, are all known to cause tinnitus. And, lastly, the audiologist noted that the Veteran has not consumed shellfish since the 2004 in-service incident (15 years prior to the examination), which makes it highly unlikely that the “shellfish incident” is the cause of the Veteran’s currently endorsed tinnitus. In a June 2019 claim, the Veteran contended that his current tinnitus was proximately caused by, or aggravated beyond its natural progression by, service-connected PTSD with MDD. The Board places low probative weight on the Veteran’s contention that tinnitus started and was caused by eating shrimp and continued since service for the same reasons as expressed by the audiologist: that he stopped eating shrimp, but tinnitus first manifested many years after service in about 2015 when the sinus symptoms became more severe. In May 2020, the Veteran was afforded a VA opinion. An audiologist reviewed the claims file and rendered an opinion responsive to the Board’s February 2020 remand directives. The audiologist noted that the Veteran endorsed recurrent tinnitus. The audiologist also recounted that 2004 “shellfish incident” as noted in the November 2019 VA tinnitus examination. Further, the Veteran reported that tinnitus bouts had increased in frequency when his sinus and allergy issues worsened and required a septoplasty “around” 2015. The Veteran also conveyed that his otolaryngologist told him that his tinnitus is probably attributable to allergies, chronic rhinitis, and sinusitis. Based upon the entire medical of lay and medical evidence, the audiologist indicated that tinnitus is as least as likely as not due to a known etiology (and not military noise exposure.) The audiologist provided a comprehensive rationale for this opinion. The Veteran’s MOS of culinary specialist has a low probability of hazardous noise exposure. The Veteran reported that more frequent tinnitus began around 2015, when his sinus and allergy issues worsened. Moreover, the Veteran’s hearing was normal as recently as 2016. At that time, the Veteran endorsed tinnitus bouts 1-2 times every other week for 1-2 minutes. Such frequency and duration would be considered normal head noise rather than a diagnosis of tinnitus. Nasal congestion from a severe cold, flu, or sinus infection can create abnormal pressure in the middle ear, impacting normal hearing and causing tinnitus-like symptomatology. And, records in the Veteran’s claims file reflect a long history of treatment for allergic rhinitis and chronic sinusitis, as well as surgeries to include sinusotomy, maxillary antrostomy, anterior ethmoidectomy, and inferior turbinate reduction. Therefore, based upon the Veteran’s low probability of noise exposure during active duty service, normal hearing even through recent years, and no complaints of true tinnitus until many years after leaving the service, it is at least as likely as not that the Veteran’s current tinnitus is due to the known etiology of chronic sinusitis rather than a result of military noise exposure. The Board observes that the audiologist supported his opinion with secondary audiological literature. The audiologist also opined that the Veteran’s tinnitus is less likely as not proximately due to service-connected PTSD with MDD. Here, the audiologist noted the Veteran’s report that PTSD symptoms and tinnitus symptoms arose at the same time. Moreover, the Veteran did not indicate that his tinnitus symptoms changed or increased with an increase in the severity of his PTSD with MDD symptomatology. As noted above, the Veteran reported that his otolaryngologist told him that his tinnitus is probably attributable to allergies, chronic rhinitis, and sinusitis. And the audiologist again noted, with a reference, that nasal congestion from a severe cold, flu, or sinus infection can create abnormal pressure in the middle ear, impacting normal hearing and causing tinnitus-like symptomatology. Furthermore, the audiologist indicated that the Veteran’s tinnitus is less likely as not aggravated beyond its normal progression by service-connected PTSD with MDD. Here too, the audiologist provided a rationale with references to audiological literature. Findings from a study in the International Journal of Behavioral Medicine suggest that PTSD can increase negative reactions to tinnitus and worsen tinnitus perception. Findings further suggest that tinnitus can serve to exacerbate PTSD symptoms but not the reverse that PTSD caused or aggravated tinnitus. Nevertheless, the Veteran himself reported that he has not noticed any increase in his tinnitus during times of increased PTSD or depressive disorder symptoms. And, the Veteran indicated that he has never made connections between tinnitus and PTSD with MDD, adding that he simply cannot identify that his tinnitus has changed in any way in relation to PTSD with MDD. The Veteran and his representative contend that tinnitus was incurred in, aggravated by, or otherwise attributable to, active duty service. Additionally, the Veteran argues that tinnitus is proximately due to, or aggravated beyond its normal progression by, service-connected PTSD with MDD. While the Board recognizes that the Veteran is competent to report a current diagnosis of tinnitus see Charles, supra., the Veteran lacks the specialized audiological knowledge to render a complex opinion as to proximate causation. See Jandreau, Routen, both supra. As such, these lay contentions as to proximate cause warrant highly diminished probative weight. Other than his claims, neither the Veteran nor his representative has produced any competent evidence to support the contention that current tinnitus was proximately caused by, or aggravated beyond its natural progression, by service-connected PTSD with MDD. Moreover, as noted above, the Veteran himself reported that he has not noticed any increase in his tinnitus during times of increased PTSD or depressive disorder symptoms. A claimant still ultimately bears some burden of production. 38 U.S.C. § 5107(a); see also Cromer v. Nicholson, 455 F. 3d 1346 (Fed. Cir. 2006). The Board assigns substantial probative weight to the negative nexus opinions of the November 2019 and May 2020 VA audiologists. Each of these clinicians reviewed the claims file; considered the Veteran’s subjective accounts; and based conclusions upon the totality of evidence. Moreover, these audiologists supported their negative nexus opinions as to direct (military noise exposure) and secondary service connection with evidence-based rationales infused with references to audiological literature. The current disability prong of tinnitus is present. See Shedden, supra. However, the weight of evidence fails to establish an in-service incurrence or predicate. The Veteran’s MOS of culinary specialist has a low probability of hazardous noise exposure. And, the Veteran’s June 21, 2005 Separation Report of Medical Assessment makes no mention of tinnitus (or any association with such and the 2004 “shellfish incident”). Establishing service connection on a secondary basis is also not possible here. As noted above, the May 2020 audiologist opined that the Veteran’s tinnitus is less likely as not proximately due to service-connected PTSD with MDD. Also, this audiologist opined that that the Veteran’s tinnitus is less likely as not aggravated beyond its normal progression by service-connected PTSD with MDD. And, as noted above, the Veteran himself did not endorse such a causative relationship. Therefore, the weight of both medical and lay evidence is against a finding that the Veteran’s current tinnitus was proximately caused by, or aggravated beyond its natural progression by, service-connected PTSD with MDD. Hence, the Board must deny service-connection on a secondary basis. See Allen, supra. The weight of competent and credible evidence is against the Veteran’s tinnitus service connection claim; therefore, service connection is not warranted See 38 U.S.C. § 5107(b); Gilbert, supra. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.