Citation Nr: 1414351 Decision Date: 04/02/14 Archive Date: 04/11/14 DOCKET NO. 10-04 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable disability rating for insomnia prior to July 9, 2012; and a disability rating in excess of 10 percent from July 9, 2012. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. M. Olson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to September 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held at the RO. A transcript of that hearing is associated with the record. Insomnia itself does not have a diagnostic code under the VA rating schedule. The disability is currently rated by analogy to a mental health disorder, and the Board finds that the diagnostic codes for mental health disorders most closely approximate the Veteran's insomnia. Therefore, the disability will be rated by analogy to mental health disorders. 38 C.F.R. § 4.20 (2013). In an October 2012 rating decision, the RO granted an increased disability rating of 10 percent for insomnia, effective July 9, 2012. Because the increased disability rating assigned is not the maximum rating available for this disability, the claim remains in appellate status, and the Board has re-characterized the issue as shown on the title page. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). FINDING OF FACT Throughout the pendency of the appeal, the Veteran's insomnia was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress. CONCLUSIONS OF LAW 1. Prior to July 9, 2012, the criteria for a disability rating of 10 percent for insomnia have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413 (2013). 2. From July 9, 2012, the criteria for a disability rating in excess of 10 percent for insomnia have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSIONS After review of the claims file, the Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The information contained in a March 2008 letter satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Moreover, the Veteran was notified of regulations pertinent to the establishment of an effective date and disability rating in the March 2008 letter. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's service treatment records, VA treatment records, and identified private treatment records have been obtained and associated with the claims file. The Veteran also underwent VA examination in April 2008 in connection with his claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Pursuant to the Board's June 2012 remand, the Veteran underwent additional VA examination in July 2012 to determine the current nature and severity of his service-connected insomnia. The record demonstrates that the VA examiners reviewed the pertinent evidence and the Veteran's lay statements. Additionally, the examinations provided sufficient information to rate the service-connected disability on appeal. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). As such, the Board finds the examinations to be sufficient and adequate for rating purposes. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. At the December 2011 hearing, the VLJ explained the necessity to submit evidence indicating an increase in the severity of the Veteran's service-connected disability and asked questions to ascertain the extent of any current symptoms or treatment for the disability. In addition, the Veteran was assisted at the hearing by an accredited representative from Veterans of Foreign Wars of the United States. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative. The hearing focused on the elements necessary to substantiate the claim for a higher disability rating, and the Veteran, through his testimony, demonstrated that he had actual knowledge of those elements. Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matter on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2013). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM-IV), a global assessment of functioning (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV, American Psychiatric Association (1994), pp. 46-47; 38 C.F.R. §§ 4.125(a), 4.130 (2013). A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41-50 indicates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. The Veteran's service-connected disability has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9413, which provides: A 10 percent disability rating is warranted when the Veteran experiences occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent disability rating is warranted when the Veteran experiences occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when the Veteran experiences occupational and social impairment with reduced reliability and productivity, due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted when the Veteran experiences occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); and inability to establish and maintain effective relationships. A 100 percent disability rating is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Veteran's service-connected insomnia is currently rated noncompensable prior to July 9, 2012 and as 10 percent disabling from July 9, 2012. Therefore, to warrant a higher disability rating prior to July 9, 2012, the evidence must show occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. In order to warrant a disability rating in excess of 10 percent from July 9, 2012, the evidence must demonstrate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In his February 2008 claim, the Veteran asserted that he was unable to get a good night of sleep. In April 2008, the Veteran underwent VA examination in connection with his claim. The Veteran reported nightly sleep impairment of moderate duration for many years. Specifically, he reported initial insomnia nightly and getting up and down every 45 minutes to an hour. The Veteran stated that he got up at approximately five or six o'clock in the morning despite falling asleep at three o'clock in the morning and that he felt tired during the day. The Veteran was oriented, clean, and casually dressed. His affect was appropriate and his mood was good, and his thought processes and thought content were unremarkable. He denied delusions, hallucinations, ritualistic behavior, panic attacks, homicidal thoughts, and suicidal thoughts. The Veteran reported episodes of violence. He was able to maintain minimum personal hygiene and had no problems with activities of daily living. The Veteran reported that he was unemployed but not retired and stated that he had not liked his job and would return to his prior work in one or two months. He did not assert that his unemployment was due to his insomnia. The VA examiner diagnosed primary insomnia and assigned a GAF score of 70. The VA examiner reported that the Veteran's symptoms did not require continuous medication and were not severe enough to interfere with occupational and social functioning. In an April 2008 written statement, the Veteran's wife asserted that in 1999 she had urged the Veteran to seek medical attention for his condition because he was up and down out of bed all night. She stated that if the Veteran was disturbed once asleep, he would awake with urgency and in a defensive position. The Veteran's wife reported that the Veteran's lack of sleep left him irritable, grumpy, and tired the following day. She stated that the disrupted sleep had continued for years past the Veteran's retirement from service. The Veteran also submitted a November 2008 private nocturnal polysomnogram in support of his claim. The impression was reduced sleep efficiency characterized by prolonged wakefulness after sleep onset; slightly prolonged sleep onset latency and normal REM latency; mild primary snoring; mild elevation of PLM activity without complaints of restless leg syndrome; and insufficient sleep syndrome with the Veteran averaging five hours of sleep per night. In a written statement received in February 2009, a co-worker of the Veteran reported that he had known the Veteran for approximately four years and that the Veteran had always told him that he did not get adequate sleep at night. The co-worker reported that the Veteran was constantly walking because he had a difficult time sitting at his computer for long periods of time without nodding off and that on many occasions he had walked in to find the Veteran nodding off at his desk. The Veteran's co-worker asserted that the Veteran's condition affected his daily activities. In his February 2009 notice of disagreement, the Veteran reported that he had problems functioning on a daily basis as the result of his insomnia. He stated that he was very tired when he woke up in the morning and all during the day. He also reported that he was very afraid on the way home from work in the evenings as he had found himself falling asleep while driving. He asserted that his insomnia was taking a toll on him physically and that his eyes were always red and puffy and he had to keep eye drops with him. In his January 2010 substantive appeal, the Veteran asserted that his insomnia should be rated as 10 percent disabling because of the harm it was causing him. He stated that his insomnia did not allow him to get the proper rest he needed. At the December 2011 hearing, the Veteran reported that due to his insomnia, he found himself dosing off at his desk at work all of the time. He testified that he had several co-workers come in and catch him sleeping at his desk. The Veteran stated that he was always tired and that he sometimes had to pull over when driving home because he felt like he was going to fall asleep. He also testified that he did not plan certain things because he was too fatigued, and his insomnia caused him to be grouchy and made him difficult to handle. The Veteran reported that he felt better on the weekends when he could sleep later. He also testified that he had snapped at co-workers because of his insomnia and had report to work late because of his insomnia; however, he denied missing a whole day of work as a result of his insomnia. The Veteran asserted that he experienced the same problems on a nightly basis. The Veteran underwent additional VA examination in July 2012. The VA examiner diagnosed primary insomnia and assigned the Veteran a GAF score of 65. The VA examiner opined that the Veteran's primary insomnia was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported having friends and being married to his second wife for sixteen years. He liked to walk and watch television. The Veteran reported that he had been working as a correctional probation officer since 2008. He denied medical treatment for his insomnia following his separation from service. The Veteran specifically reported symptoms of chronic sleep impairment. He described difficulty falling and maintaining sleep on a daily basis, with moderate, chronic symptoms. He also reported feeling tired during the daytime on a daily basis, which was mild and chronic. The Veteran stated that he was able to sleep for approximately three to four hours. The VA examiner noted the Veteran had been able to keep a job for many years without any major difficulties. Given the above record, the Board concludes that the evidence demonstrates that throughout the pendency of the appeal, the Veteran's insomnia was manifested by occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.130, Diagnostic Code 9413. Initially, the Board notes that the Veteran experienced symptoms that are not listed in the rating criteria, and as a result, the Board has considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment with decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The evidence demonstrates that the Veteran's insomnia was manifested by chronic sleep impairment, daily fatigue, irritability, and difficulty with interpersonal relationships and interactions with co-workers. Throughout the pendency of the appeal, VA examiners assigned GAF scores ranging from 65 to 70, which indicate some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, and having some meaningful interpersonal relationships. In this respect, the Veteran reported that his daily fatigue made him difficult to handle and that he had experienced conflicts with his co-workers as the result of his fatigue. The Veteran's wife also asserted that his lack of sleep made him irritable and grouchy on a daily basis. In addition, the Veteran's co-worker reported that he had experienced the Veteran falling asleep at his desk. The Veteran testified that his insomnia had affected his ability to remain awake at work and had caused him to show up for work late. In this case, the Board has focused specifically on the impact of the Veteran's insomnia on his daily functioning, to include his interpersonal relationships and occupation. As such, the Board concludes that the evidence as a whole more nearly approximates the criteria for a 10 percent disability rating throughout the pendency of the appeal. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413; see Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's insomnia at any time during the pendency of the appeal. The evidence does not reflect occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In this case, the Veteran does not experience depressed mood, anxiety, suspiciousness, or panic attacks. More importantly, the April 2008 VA examiner reported that the Veteran's symptoms were not severe enough to interfere with occupational and social functioning, and the July 2012 VA examiner found it significant that the Veteran had been able to keep a job for many years without any major difficulties. Furthermore, the Veteran explicitly testified that his insomnia did not affect his ability to perform his job duties, but only made it difficult for him to stay awake while sitting at his desk. Again, the Board has focused the determination on the effects of the Veteran's service-connected insomnia on his occupational and social functioning rather than the specific symptoms associated with his disability. Resolving the benefit of the doubt in favor of the Veteran, the Board finds the criteria for a disability rating of 10 percent, but no more, for insomnia have been met throughout the pendency of the appeal. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Consideration An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating to the Chief Benefits Director or the Director, Compensation and Pension Service. 38 C.F.R. § 3.321(b)(1) (2013). Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. In this case, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the ratings assigned herein inadequate. The Veteran's service-connected insomnia is evaluated as a psychiatric disability, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.130, Diagnostic Code 9413. Throughout the pendency of the appeal, the Veteran's insomnia was manifested by chronic sleep impairment, daily fatigue, irritability, and difficulty with interpersonal relationships and interactions with co-workers. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds the Veteran's experiences are contemplated by the evaluation assigned. An evaluation in excess of that assigned is provided for certain manifestations of a psychiatric disability, but the medical evidence does not demonstrate that those manifestations are present in this case. Here, the Board finds the criteria for the evaluation assigned more than reasonably describe the Veteran's disability level and symptomatology throughout the pendency of the appeal, and therefore, the schedular evaluation is adequate and no referral is required. See 38 C.F.R. § 4.130, Diagnostic Code 9413; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Total disability rating based on individual unemployability (TDIU) The Court has held that a TDIU claim is part and parcel of an increased rating claim when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the Board has jurisdiction to consider the Veteran's possible entitlement to a TDIU when the issue is raised by assertion or reasonably indicated by the evidence and is predicated, at least in part, on the severity of the service-connected disability in question, regardless of whether the RO has expressly addressed this additional issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993); EF v. Derwinski, 1 Vet. App. 324 (1991). Here, the Veteran has not asserted that he was totally unemployable as the result of his service-connected insomnia, and the evidence shows that he continued to work full-time during the pendency of the appeal, with the exception of a brief time period where the Veteran left his job because he did not enjoy it. Accordingly, the Board concludes that a claim for entitlement to a TDIU has not been raised. ORDER Entitlement to a disability rating of 10 percent, but no more, for insomnia is granted prior to July 9, 2012. Entitlement to a disability rating in excess of 10 percent for insomnia is denied from July 9, 2012. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs