Citation Nr: 1409080 Decision Date: 03/04/14 Archive Date: 03/12/14 DOCKET NO. 10-00 125A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a sleep disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and P.A. ATTORNEY FOR THE BOARD William Skowronski, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1977 to February 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the case to the RO in November 2011 for further development. The Veteran and a witness testified at a Board hearing at the RO in September 2011. A transcript is of record. A review of the Virtual VA paperless claims processing system (Virtual VA) reveals that it contains an appellate brief not found within the physical claims folder. FINDING OF FACT The Veteran's sleep disorder is proximately due to his service-connected tinnitus. CONCLUSION OF LAW Sleep disorder is proximately due to the Veteran's service-connected tinnitus. 38 U.S.C.A. §§ 1131, 5103, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The issue before the Board involves a claim of entitlement to service connection. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.30. Additionally, a 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. The Veteran's main contention is that he has a sleep disability secondary to his service-connected tinnitus, but the Board notes that service connection has also been established for asthmatic bronchitis. During a VA audio examination in May 2008, the Veteran reported his tinnitus interfered with his sleeping. After a March 2009 VA examination, a VA physician diagnosed the Veteran with sleep deprivation. The examiner opined that the Veteran's sleeping problem is less likely as not caused by or a result of the Veteran's service-connected tinnitus, primarily reasoning that the Veteran was not diagnosed with tinnitus in service, but had reported trouble sleeping in service and at separation. A different VA physician diagnosed the Veteran with a sleep disorder after a March 2010 VA respiratory examination and opined that that his "sleep disorder/poor sleep hygiene/fragmented sleep is not caused by or a result of condition in service or to [his service-connected] asthma." A clinical psychologist examined the Veteran later in March 2010. He diagnosed the Veteran with Depressive Disorder NOS and polysubstance abuse in full-sustained remission. The examiner opined that the Veteran's sleep disorder is less likely as not caused by or a result of military service or the Veteran's service-connected asthma. He found the Veteran's "current problems with sleep are more likely than not associated with the diagnosis of depression." The Board found these opinions inadequate in its November 2011 remand because they did not address the issue of aggravation. The Veteran was afforded a VA mental disorders examination in February 2012. The examiner, a doctor of psychology, diagnosed the Veteran with Mood Disorder NOS and indicated chronic sleep impairment as a symptom. However, she noted that offering an etiology opinion of a sleep disorder was out of her scope of practice as a psychologist and deferred to a medical examiner. He was afforded a general VA examination in July 2012. The examiner, a physician, found that "there is no clinical documentation or other evident medical condition found during the general medical exam above connecting the Veteran's remaining medical diagnoses to his claimed Insomnia condition at this time." She did not specifically find that the Veteran does not have a sleep disorder and did not address the issue of aggravation. The same doctor of psychology who performed the February 2012 examination performed another examination later in July 2012. She noted that the Veteran is not diagnosed with a DSM-IV specific sleep disorder and, therefore, an opinion regarding whether the Veteran's claimed insomnia is secondary to his service-connected tinnitus was not warranted. This examiner also commented that the first mention of insomnia due to tinnitus by the Veteran was not until the July 2012 general medical examination. Although the medical opinions obtained to date argue against a link between the service-connected tinnitus and insomnia, the Board is not persuaded by any offered rationales. The most recent negative opinion in July 2012 was based on an inaccurate factual predicate. The record shows that the Veteran has been reporting that his tinnitus affects his sleep since at least August 2008. Another examiner found no link between the asthma, but did not address tinnitus. Although other examiners cite to depression as the source of the insomnia, the Board notes records dated in the 1990's showing major depression mention that the Veteran's complaints included sleeping too much, not insomnia. In sum, the medical opinions, even viewed collectively, do not persuade the Board that the preponderance of the evidence is against a finding that the Veteran's insomnia is causally related to his service-connected tinnitus. The Board must also consider the Veteran's sworn testimony. At the Board hearing he stated that his insomnia began several years before when his tinnitus developed and that he did not have insomnia prior to that time. This appears to be consistent with the time medical records first note complaints of insomnia. The Board believes that the Veteran, even as a layperson, is competent to testify as to the time of onset of insomnia as well as what he was experiencing at the time of the insomnia (ringing in his ears). After observing the Veteran at the hearing, the Board has no reason to doubt his credibility in this regard. A witness at the hearing testified that she has observed the Veteran be unable to sleep and that he told her it was because of ringing in his ears. The witness is competent to testify about what she observed and heard, and the Board finds no reason to question her credibility. VA physicians diagnosed the Veteran with sleep deprivation and a sleep disorder in March 2009 and March 2010 respectively. In February 2012, another VA examiner indicated he experienced chronic sleep impairment. The Board finds these items of medical evidence sufficient to show current disability. The evidence in this case is not entirely compelling, but the Board is able to find that the evidence for and against the Veteran's claim is at least in a state of equipoise. 38 U.S.C.A. § 5107. Under such circumstances, the question is to be resolved in the Veteran's favor. Accordingly, the Board finds that service connection is warranted for a sleep disorder, secondary to service-connected tinnitus. Veterans Claims Assistance Act of 2000 (VCAA) There is no need to undertake any review of compliance with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board. See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The Board notes that the RO informed the Veteran how disability ratings and effective dates are assigned in a letter sent in September 2008. The RO will take such actions in the course of implementing this grant of service connection, and the Veteran may always file a timely notice of disagreement if he wishes to appeal from those downstream determinations. ORDER Entitlement to service connection for a sleep disorder is warranted. The appeal is granted. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs