Citation Nr: 0727635	
Decision Date: 09/04/07    Archive Date: 09/14/07

DOCKET NO.  04-36 599	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boise, 
Idaho


THE ISSUE

Entitlement to service connection for insomnia or a sleep 
disorder secondary to service-connected tinnitus.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of 
the United States


ATTORNEY FOR THE BOARD

Rebecca N. Poulson, Associate Counsel


INTRODUCTION

The veteran served on active duty from December 1972 to 
December 1976.

This matter is before the Board of Veterans' Appeals (Board) 
from a June 2003 Rating Decision by the Department of 
Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, 
which denied the veteran's claim for service connection for 
insomnia as secondary to his service-connected tinnitus.  The 
RO issued a notice of the decision in June 2003, and the 
veteran timely filed a Notice of Disagreement (NOD) in April 
2004.  Subsequently, in August 2004, the RO provided a 
Statement of the Case (SOC), and the veteran timely filed a 
substantive appeal.  

As recognized by the RO, the claims file appears to raise an 
informal claim of entitlement to service connection for 
depressive disorder secondary to service-connected tinnitus.  
This issue is not developed for appellate consideration and 
is referred to the RO for appropriate action.   

The veteran did not request a hearing on this matter. 


FINDING OF FACT

It is at least as likely as not that the veteran's sleep 
disorder was caused by his service-connected tinnitus.


CONCLUSION OF LAW

With application of the doctrine of reasonable doubt, a sleep 
disorder is the result of a service-connected disability.  
38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.310 
(2006).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Veterans Claims Assistance Act of 2000 (VCAA)

The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107 (West 2002), significantly changed the law 
prior to the pendency of this claim.  VA has issued final 
regulations to implement these statutory changes.  See 38 
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2005).  The VCAA 
provisions include an enhanced duty to notify a claimant as 
to the information and evidence necessary to substantiate a 
claim for VA benefits, and they redefine the obligations of 
VA with respect to the duty to assist the veteran with the 
claim.  

In the instant case, the Board has rendered a decision in 
favor of the veteran, finding that service connection for 
insomnia is warranted.  Therefore, a further discussion of 
the VCAA duties is unnecessary at this time.  It should be 
noted, however, that the RO should cure any potential defects 
in notice, as would be demonstrated by a failure to notify 
the veteran of all five elements of a service connection 
claim (to include the type of evidence necessary to establish 
a disability rating and the effective date for the claimed 
disability), or assistance provided by VA, prior to its 
determination of a proper disability rating and effective 
date for the veteran's service-connected disability.  See 
Pelegrini v. Principi, 18 Vet. App. 112,  119-20 (2004) 
(holding that proper VCAA notice must "precede an initial 
unfavorable [RO] decision"); see also Dingess v. Nicholson, 
19 Vet. App. 473, 484, 486 (2006) (holding that the VCAA 
notice requirements contained in 38 U.S.C.A. § 5103(a) and 38 
C.F.R. § 3.159(b) apply to all five elements of a service 
connection claim, which include: (1) veteran status; (2) 
existence of a disability; (3) a connection between the 
veteran's service and the disability; (4) degree of 
disability; and (5) effective date of the disability).


II.  LAW AND REGULATIONS
 
a.  Secondary Service Connection 

Pursuant to 38 C.F.R. § 3.310(a), a "disability which is 
proximately due to or the result of a service-connected 
disease or injury shall be service connected."  Evans v. 
West, 12 Vet. App. 22, 29 (1998) (noting requirements for 
establishing service connection on a secondary basis).  Thus, 
in order to establish a secondary service connection claim, 
the veteran must show: (1) the existence of a current 
(secondary) disability; (2) the existence of a service-
connected disability; and (3) evidence that the service-
connected disability proximately caused the secondary 
disability.  38 C.F.R. § 3.310(a).  If a veteran succeeds in 
establishing service connection for a secondary condition, 
"the secondary condition shall be considered a part of the 
original condition."  38 C.F.R. § 3.310(a).  

b.  Standard of Proof 

38 U.S.C.A. § 5107 sets forth the standard of proof applied 
in decisions on claims for veterans' benefits.  A veteran 
will receive the benefit of the doubt when an approximate 
balance of positive and negative evidence exists.  38  
U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Thus, when a veteran 
seeks benefits and the evidence is in relative equipoise, the 
veteran prevails.  Wells v. Principi, 18 Vet. App. 33, 36 
(2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  A 
claim will be denied only if a preponderance of the evidence 
is against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 
519-20 (1996).   

III.  ANALYSIS

a.  Factual Analysis

The service medical records are entirely silent for any 
findings attributed to a sleep disorder.

In May 2000, the veteran was examined by a private physician.  
The doctor noted that "the patient was counseled in regards 
to his hearing loss, as well as the tinnitus in his left ear.  
He apparently has adapted to that and no longer has trouble 
sleeping."

In August 2000, service connection was granted and a 10% 
rating assigned for tinnitus.

In November 2000, the veteran sought treatment from VA for 
sleep disturbance.  The clinician made the following 
notation: "insomnia perhaps related to tinnitus."  
He prescribed nortriptyline at that time and in April 2002 
prescribed trazodone.

In May 2002, the veteran was seen by a VA social worker and 
complained that he was "not sleeping due to constant humming 
noise."  He also reported being depressed "due to his 
chronic tinnitus."  (As noted in the introduction to this 
decision, a claim for service connection for depressive 
disorder is referred to the RO for appropriate action.)  In 
May 2003, a VA examiner prescribed celexa.  

In September 2004, the veteran was seen by a VA social worker 
and physician and reported that his "depression and sleep 
deprivation symptoms related to his ongoing [t]innitus 
problem have worsened."  The social worker made the 
following notation:  "The patient indicated that he gets 
very little sleep and feels exhausted in the morning and 
throughout the day."  

In October 2004, the veteran was seen by a VA audiologist.  
The veteran reported that "his tinnitus is so severe that it 
greatly affects his ability to concentrate and interferes 
with his ability to fall and stay asleep."  The examiner 
prescribed a noise generator.  

In November 2004, the veteran was seen by a private 
physician.  According to the doctor's notes, the veteran 
"states with any stress the tinnitus bothers him more and 
keeps him awake at night."  

Also in November 2004, the veteran was seen by a VA social 
worker, who made the following notation:  

Pt has significant problems with insomnia.  The ongoing 
severe tinnitus causes the patient to have problems with 
falling to sleep and frequently waking throughout the 
night.  [The veteran] wakes-up feeling exhausted.  His 
daytime energy level is poor.  [The veteran] has had to 
give up his business as an airplane mechanic due to 
problems with concentration and having to check and 
recheck his work.  ([The veteran] indicated that due to 
lack of adequate sleep, his daytime ability to 
concentrate and stay focused is impaired.)  [The 
veteran] had to give up his pilot license and not fly 
anymore due to tinnitus, insomnia, and current 
medications he is taking for these conditions.

The social worker also noted that the veteran "continues to 
have a great deal of difficulty managing his tinnitus problem 
with related insomnia and depression symptoms."

The veteran underwent a VA psychiatric examination in May 
2005.  He reported difficulty falling to sleep and getting 
only five to seven hours of sleep a night.  According to the 
veteran, the onset of his insomnia coincided with the onset 
of tinnitus.  He further reported awakening unrefreshed and 
feeling chronically sleep deprived.  Additional history 
obtained from the veteran included taking several low dose 
antidepressants to treat his insomnia, which were "modestly 
helpful" but caused daytime drowsiness.  The psychiatrist 
diagnosed a sleep disorder due to tinnitus, insomnia type, 
and depressive disorder.  The doctor explained:

The main question to be addressed by this report is 
whether the patient's insomnia is solely due to tinnitus 
or whether it is caused by a depressive or anxiety 
disorder.  This is a difficult question to answer with 
certainty, as there is no simple diagnostic test that 
would permit a definite conclusion.  However, based on 
the patient's presentation today and history as well as 
a review of the available records, I conclude that it is 
as likely as not that he suffers from a sleep disorder 
due to tinnitus, insomnia type, and also from a 
depressive disorder but one that contributes minimally 
to his insomnia. 

The veteran also underwent a general medical examination in 
May 2005.  The veteran reported that the combination of the 
noise generator and the nortriptyline was helping with his 
sleep.  The doctor reviewed the claims file and diagnosed 
insomnia.  He explained:

In my opinion I do not believe, after reviewing the 
records, that his insomnia is only the result of the 
tinnitus however I do believe that the tinnitus is the 
major contributing factor to his insomnia...In review of 
the labs and other tests that I have ordered and 
reviewed, I could not find any other diseases or 
illnesses that would be manifested by insomnia.

The veteran also underwent an audiology examination in May 
2005.  The veteran complained of high pitched tinnitus 
bilaterally, with the left louder than the right, present 
since service.  He rated it a "5" on a "1-5" scale.  The 
veteran further reported that the tinnitus was very 
detrimental to his daily life, sleep habits, and mental 
wellbeing.  The examiner noted that "[t]he tinnitus was 
approximately matched to 4000 Hz steady puretone at 40 dB HL 
in the left ear, and ~30 dB in the right ear."  The examiner 
reviewed the claims file and opined that "[t]he tinnitus is 
very likely greatly aggravating his insomnia, however it 
cannot be definitely stated that it is the sole contributor 
to the problem."  

In December 2005, the Boise RO requested an advisory opinion 
from the Director, Compensation and Pension Services 
(Director), to determine whether service connection for the 
veteran's insomnia should be established "[g]iven that the 
VBA rating schedule does not recognize 'insomnia' or 'sleep 
disorder' as an independent disability."  The RO also asked 
the Director whether it was "incumbent upon VA to infer the 
issue of service connection for depression as secondary to 
the tinnitus", noting that this issue had neither been 
claimed nor decided.  In what can best be described as an 
inarticulate opinion, the Director determined that service 
connection for the veteran's insomnia should be denied.  The 
Director noted that the June 2003 rating decision denied 
service connection for insomnia as not diagnosed in service 
and that "VA treatment records showed episodes of treatment 
for problems sleeping which the veteran attributed to 
tinnitus; however, clinical findings also showed complaints 
of job stress, life stresses, and depression."  The Director 
further determined that the RO should not infer the issue of 
secondary service connection for depression, noting that 
"service medical records are devoid of diagnosis or 
treatment for chronic depression, nor does the evidence show 
chronic depression was diagnosed within the one year 
presumptive period." 

In August 2006, the RO provided a Supplemental Statement of 
the Case (SSOC).  This SSOC demonstrates that the RO 
specifically relied on the Director's July 2006 advisory 
opinion.  However, it appears that the veteran did not 
receive a copy of the RO's request or the Director's 
response.  The RO provided additional SSOCs in October and 
November 2006.
 
In August 2006, the veteran was seen by a private physician.  
He reported that the tinnitus had become "quite 
distracting."  The doctor diagnosed, inter alia, tinnitus 
and depression.  He opined that "treating [the veteran's] 
depression here will be very useful in his ability to cope 
and manage the tinnitus."  There is no mention of a sleep 
disturbance.  In October 2006, the same physician submitted 
an addendum to his previous letter.  The letter states, in 
pertinent part:

[The veteran's] tinnitus, he now reports, is loud enough 
that it certainly causes sleep disturbances.  When he 
lies down in bed at night, he feels the tinnitus is of a 
level and intensity that interferes with his ability to 
get to sleep.  He certainly admits that this has caused 
some level of anxiety, as well as some levels of 
depression.  

The clinician diagnosed a sleep disturbance related to either 
tinnitus or anxiety.  He explained:

Ultimately, there is an amount of speculation that I 
have to insert in trying to determine whether or not 
[the veteran's] tinnitus is disrupting his sleep.  
Certainly it can, and it usually does in severe 
tinnitus.  However, I certainly think that a 
psychiatrist is in a better position professionally to 
be able to determine the level of anxiety and amount of 
sleep disturbance that is affected by this level of 
tinnitus.

b.  Discussion

As explained above, the veteran currently is service-
connected for tinnitus and has been diagnosed with a sleep 
disorder by several medical providers, both VA and non-VA.  
The veteran is seeking service connection for his sleep 
disorder, which he claims is related to his service-connected 
tinnitus.  

The Board determines that service connection for a sleep 
disorder is warranted on a secondary basis.  38 C.F.R. 
§ 3.310.  

In the November 2000 VA treatment note, a clinician indicated 
that the veteran's insomnia was "perhaps" due to tinnitus.  
The examiner's use of the word "perhaps" is too speculative 
to support the contended causal relationship.  See Obert v. 
Brown, 5 Vet. App. 30 (1993).  See also Tirpak v. Derwinski, 
2 Vet. App. 609, 611 (1992) (holding that a physician's 
statement that a service-connected disorder "may or may not" 
have prevented medical personnel from averting the veteran's 
death was not sufficient); Beausoleil v. Brown, 8 Vet. App. 
459 (1996) (holding that a general and inconclusive statement 
about the possibility of a link was not sufficient).  The 
Board also recognizes that the May 2000 letter indicates that 
the veteran no longer had trouble sleeping.  

By contrast, three different VA examiners reviewed the entire 
claims file and conducted a lengthy and thorough examination 
of the veteran.  Each examiner concluded that the veteran 
suffers from a sleep disorder and attributed the condition to 
the veteran's service-connected tinnitus.  Although the 
psychiatrist determined that depression also contributed to 
the insomnia, he clearly stated that "it is as likely as not 
that [the veteran] suffers from a sleep disorder due to 
tinnitus."  The general practitioner concluded that tinnitus 
is the major contributing factor to the veteran's insomnia.  
The examiner provided a rationale for the opinion, noting 
that he could not find any other diseases or illnesses that 
would be manifested by insomnia.  The audiologist opined that 
the tinnitus is "very likely greatly aggravating" the 
veteran's insomnia."  Furthermore, in the October 2006 
letter, the veteran's private doctor declined to speculate as 
to whether or not the veteran's tinnitus is causing insomnia, 
but instead deferred to the VA psychiatrist's opinion on this 
issue.

In view of the foregoing, the Board finds that the evidence 
is in relative equipoise as to whether the veteran's constant 
tinnitus has caused a sleep disorder.  The law is clear that 
when the evidence is in relative equipoise as to the merits 
of an issue, the benefit of the doubt in resolving the issue 
is to be given to the appellant.  38 U.S.C.A. § 5107(b).  In 
this case, the evidence as a whole indicates that it is at 
least as likely as not that the veteran's recurrent sleep 
disturbance is due to his persistent tinnitus.  

There are two final matters.  First, the Board is cognizant 
of the recent amendment to 38 C.F.R. § 3.310, which 
prescribes that VA will not concede that a nonservice-
connected disease or injury was aggravated by a service-
connected disease or injury unless the baseline level of 
severity of the nonservice-connected disease or injury is 
established by medical evidence created before the onset of 
aggravation or by the earliest medical evidence created at 
any time between the onset of aggravation and the receipt of 
medical evidence establishing the current level of severity 
of the nonservice-connected disease or injury.  See 71 Fed. 
Reg. 52744 (Sept. 7, 2006).  In this case, however, the 
amendment is not applicable as the Board's grant of service 
connection for tinnitus is based upon causation rather than 
aggravation.

Second, the Board rejects the opinion obtained by the RO that 
the veteran's sleep disorder is not a ratable disability.  VA 
has a long history of granting service connection for 
variously diagnosed sleep disorders and rating them by 
analogy (38 C.F.R. § 4.20), to include under 38 C.F.R. 
§ 4.104, Diagnostic Code 6847 (sleep apnea) and 38 C.F.R. 
§ 4.124a, Diagnostic Code 8108 (narcolepsy).  Whether such 
disability warrants a compensable evaluation is a rating 
question not before the Board; that matter will be addressed 
by the RO when it effectuates this Board decision.

Given the above described medical evidence, the Board finds 
that the evidence is at least in equipoise, and that the 
reasonable doubt rule applies to this case.  See 38 U.S.C.A. 
§ 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. 
Cir. 2001) (holding that "the benefit of the doubt rule is 
inapplicable when the preponderance of the evidence is found 
to be against the claimant"); Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).  Accordingly, the Board finds that secondary 
service connection for a sleep disorder is warranted.  


ORDER

Service connection for a sleep disorder secondary to the 
veteran's service-connected tinnitus is granted. 



____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs