Citation Nr: 1600946 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 13-27 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to service connection for a disorder manifested by sleep problems, to include insomnia, as secondary to service-connected tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A-L Evans, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1970 to August 1972. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2013 rating decision of the Des Moines, Iowa, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2015, the Veteran testified at a Board hearing. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his insomnia is caused by his service-connected tinnitus disability. CONCLUSION OF LAW The criteria for service connection for insomnia, as secondary to service-connected tinnitus, are met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). "To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Although this is the general standard for service connection, the Veteran primarily contends that he has sleep problems as a result of his already service-connected tinnitus. Thus, in addition to the elements of direct service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2015). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that he has developed a sleep disorder as a result of his service-connected tinnitus. The Veteran asserts that he awakes three to four times a night because of the noise produced by his tinnitus. He has not set forth a theory of direct service connection and his service treatment records do not reference any sleep problems. An August 2001 private treatment record shows that the Veteran was diagnosed with obstructive sleep apnea. The planned use of a continuous airway pressure (CPAP) machine was noted. Subsequent private treatment notes, to include records dated in January 2008, October 2010, February 2011 and February 2012 indicate continued treatment for obstructive sleep apnea and the use of a CPAP machine. A January 2011 VA treatment record notes that the Veteran's tinnitus interfered with his sleep. An April 2011 VA respiratory examination report reflects a diagnosis of obstructive sleep apnea and notes that the Veteran's sleep disorder was due to a general medical condition (tinnitus). An August 2011 VA medical opinion report reflects that the Veteran's claims file had been reviewed and the VA examiner noted a December 2010 VA treatment note which revealed that the Veteran had a body mass index of 32.76. The VA examiner opined that the Veteran's claimed condition was less likely as not proximately due to or the result of the Veteran's service-connected condition. The VA examiner noted that the Veteran's obstructive sleep apnea was more likely than not secondary to obesity which is a known significant risk factor of obstructive sleep apnea. He noted that there was no known relationship between tinnitus and obstructive sleep apnea and that the December 2010 VA treatment note reported that the Veteran's tinnitus did not interfere with sleep. A May 2012 private treatment note shows that the Veteran reported suffering from sleep latency due to his tinnitus. An assessment of insomnia was provided. A June 2012 private note from Dr. White indicates that the Veteran had experienced sleep apnea and used a CPAP machine. The private doctor stated that the Veteran's complaints regarding tinnitus in his sleep disturbance had to do with the initiation of sleep, which would be insomnia. He stated that tinnitus had been associated with insomnia. He noted that the relationship between the two is not well defined, but noted that people had reported that tinnitus made it difficult for them to sleep. He stated that the two had to go hand in hand and they tended to magnify the psychological effects of each other. He opined that the Veteran's tinnitus was impacting his sleep disturbance and that the association of tinnitus and sleep disturbance was irrefutable. In another private note received at the RO in June 2012, Dr, Konz noted that she had been seeing the Veteran since 2004. She noted that she concurred with a denial regarding a connection between the Veteran's sleep apnea and tinnitus; however, it has been established that part of the Veteran's sleep disturbance, insomnia, was because of his chronic tinnitus. In consideration of the evidence of record, it appears that the medical evidence of record is in equipoise as the possible relationship between the Veteran's service-connected tinnitus and his sleep problems. The VA examiner's opinion weighs against the claim, but the opinion seems to focus primarily on the physical disability of sleep apnea. On the other hand, the two private opinions distinguish between the Veteran's sleep apnea, which they do not necessarily indicate is related to tinnitus, and the Veteran's insomnia. The two opinions reflect a causational link between the Veteran's tinnitus and that specific sleeping problem. The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of equipoise. In this matter, as there is competent medical evidence both in favor of and against the claim of secondary service connection, the Board is of the opinion that this point has been attained. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). As such, after resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran has a sleep disorder-best characterized as insomnia-that is related to his service-connected tinnitus. Accordingly, service connection is warranted for insomnia. ORDER Service connection for insomnia, as secondary to service-connected tinnitus, is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs