Citation Nr: 1731990 Decision Date: 08/08/17 Archive Date: 08/16/17 DOCKET NO. 10-24 547 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 30 percent for primary insomnia. ORDER Entitlement to an evaluation in excess of 30 percent for primary insomnia is denied. FINDING OF FACT The Veteran's primary insomnia is not shown at any time to have been manifested by impairment greater than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to chronic sleep impairment, daytime hypersomnolence, fatigue, irritability, concentration difficulties, and subjective mild memory difficulties. CONCLUSION OF LAW A rating in excess of 30 percent for the Veteran's primary insomnia is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321 (b)(1), 4.130, Diagnostic Code (DC) 9410 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1976 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In May 2013, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in November 2013 and July 2016. The appeal is now before the Board for further appellate action. The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. Entitlement to an evaluation in excess of 30 percent for primary insomnia. The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence that is relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail every piece of evidence. See Gonzales v. West, 218 F, 3d, 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. With the initial rating assigned following a grant of service connection, separate (staged) ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's primary insomnia is rated under the General Rating Formula for Mental Disorders (General Formula). A 10 percent evaluation is warranted when the evidence demonstrates occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms controlled by continuous medication. A 30 percent rating is warranted when the evidence demonstrates 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 rating is warranted when there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is 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 a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9410. The Veteran has been assigned various Global Assessment of Functioning (GAF) scores for his insomnia, dyssomnia, hypersomnia, adjustment disorder with depressed mood and depressive disorder ranging from 65 to 70. Scores ranging from 61 to 70 reflect mild symptoms (e.g., depressed mood or mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Lesser scores reflect increasingly severe levels of mental impairment. See 38 C.F.R. § 4.130 [incorporating by reference VA's adoption of the American Psychiatric Association: DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), for rating purposes]. [Per recent regulation revision, use of DSM-IV has been supplanted by DSM-5, which has not incorporated use of GAF scores. As this matter arose when the previous regulatory criteria were in effect, the GAF scores will be considered as evidence pertaining to the status of the disability at the points they are assigned.] As to the Veteran's contention that his service-connected primary insomnia has increased in severity, the Board reviewed the results of a February 2007 polysomnography (sleep study) report that indicated that the Veteran had obstructive sleep apnea syndrome and psychophysiological insomnia. The Veteran complained of excessive daytime sleepiness, heroic snoring, depression, restless sleep, and irritability. His score on the Epworth Sleepiness Scale was 16 out of 24 which indicates excessive daytime sleepiness. The Veteran reported difficulty initiating sleep, waking frequently during the night and often times being unable to go back to sleep. He occasionally had nightmares. The Veteran did not have symptoms consistent with restless leg syndrome. When the sleep study was conducted, the Veteran worked in air defense during the nightshift since discharged from service. The Veteran complained that his symptoms impact his job and quality of life. He reported that a potential employer disqualified him as a candidate for a position because of his sleep disorder. The Veteran revealed that he frequently drank alcohol to aid him in initiating sleep. He denied sleep paralysis, nocturnal palpitations, sleepwalking, hypnagogic hallucinations or cataplexy. The Veteran also denied waking up choking or gasping for air, witnessed apnea, being awakening by his own snoring, extreme fatigue, morning headaches, memory loss or poor concentration. The baseline oxyhemoglobin saturation while awake on room air was 98 percent. Electroencephalogram (EEG) findings confirmed total sleep time of 334 minutes with a normal sleep efficiency of 81.3 percent. Sleep onset after the lights were out was short, 8 minutes; rapid eye movement (REM) latency was normal, 91.5 minutes; wake after sleep onset time was 69 minutes. The apnea/hypopnea index (AHI) was 1.1. events per hour of sleep. Moderate snoring was noted. There was no evidence of significant obstructive sleep apnea (OSA) and sleep disturbed breathing in the study. The Veteran was diagnosed with idiopathic hypersomnolence with long sleep time. The examiner noted that the Veteran appeared insightful and a fair historian; his affect was normal. The examiner prescribed the Veteran Provigil and recommended weight loss and avoidance of sleep deprivation. During a February 2007 VA alcohol evaluation/screen, the Veteran was advised to stay within recommended consumption limits. In several subsequent examination reports, the Veteran admitted that he consumes alcohol approximately every night to help him fall asleep. Several examiners encouraged the Veteran to abstain from alcohol use and to maintain an ideal body weight; he was informed of the impact on sleep deprivation. In April 2007, the Veteran was seen by Dr. J.E.C. for a follow-up examination after completing the February 2007 sleep study. Dr. J.E.C. described the Veteran as alert and oriented; and that his affect was normal. Dr. J.E.C. confirmed the Veteran's idiopathic hypersomnia diagnosis. A January 2008 VA nursing note indicates that the Veteran denied feeling guarded, detached from others or activities. In January 2009, the Veteran was afforded a VA mental disorders compensation and pension (C&P) examination. The Veteran's insomnia diagnosis was confirmed. The Veteran did not endorse any symptoms suggestive of anxiety, a mood disorder, or psychosis. The report indicates that the Veteran is guarded in his interactions with others; mistrustful and quick to take offense. The examiner reported that he was able to establish an adequate relationship with the Veteran and that the Veteran was able to disclose some personal information. The Veteran reported that he was never treated for a psychiatric disorder and reported problems with insomnia for the preceding 12 years. The Veteran complained of initiating sleep and his resultant irritability due to his inability to sleep. Through the years the Veteran was prescribed various medications for insomnia, including Provigil, which helped him "stay alert" during the day. The Veteran revealed that he consumed alcohol approximately every night in an effort to help him sleep. The Veteran's symptoms are present on a daily basis and moderately severe; he has severe sleep disturbance. The Veteran revealed that he was employed and in a long-term stable marriage. He has not lost time from work due to his sleep disturbance, but has excessive daytime hypersomnolence and irritability which impaired his work relationships. The examiner noted that the Veteran appeared guarded in his interactions with others, he was very sensitive, and he engaged in isolative behavior. There was no evidence of impaired thought process or communication, inappropriate behavior, or an inability to maintain minimal personal hygiene or other basic activities of daily living. The Veteran was oriented to person, time and place. There was no memory loss or impairment (both short and/or long term); and there was no ritualistic behavior that interfered with routine activities. The examiner noted that the Veteran speaks at a normal rate with normal volume. There was no evidence of panic attacks; his mood was euthymic and his affect was appropriate. The Veteran's GAF score is 70. A March 2012 Army Medical Center Waiver was denied after the Veteran underwent a physical examination for employment/deployment readiness. The Veteran did not have any medical disorder or physical impairment which would interfere in any way with the full performance of his duties as a weapons system mechanic. The Veteran reported hypersomnolence since a 1997 sleep study diagnosis, he also reported diagnosed shift workers syndrome. On the report of medical history, the Veteran endorsed frequent trouble sleeping and that he received counseling. He denied psychiatric problems and an inability to maintain employment due to medical reasons. The Veteran's hypersomnolence diagnosis was noted. In a January 2013 mental disorders C&P examination the Veteran was diagnosed with dyssomnia NOS and adjustment disorder with depressed mood; Axis IV psychological and environmental problems manifested as limited socialization, financial concerns, occupational frustrations, and hostility. The Veteran's symptoms included: depressed mood; chronic sleep impairment (2-3 hours of sleep a night); and mild memory loss-such as forgetting names, directions or recent events. There was no evidence of impairment of short and long-term memory- retention of only highly learned material, while forgetting to complete tasks; flattened affect; circumstantial, circumlocutory or stereotyped speech; impaired judgement; gross impairment in thought processes or communication; or grossly inappropriate behavior. The Veteran's GAF score was 65 to 70. It was the psychologist's opinion that the Veteran's reported sleep difficulties with subsequent fatigue, irritability, and concentration difficulties with subjective mild short-term memory difficulties were attributable to his dyssomnia NOS. The psychologist further opined that the Veteran's reported depressed mood, appetite changes, and decreased libido were attributable to his adjustment disorder with depressed mood. The psychologist noted that the Veteran's adjustment disorder likely exacerbates the subsequent difficulties the Veteran experienced related to his dyssomnia NOS, controlled by medication. The Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he "wasn't able to get a few jobs" because of his affect mood/behavior as a result of chronic insomnia. The Veteran also revealed that he had a difficult relationship with his wife (decreased libido) and children at times; it was difficult to connect with others; he fell asleep at work; and he had to stay busy or he would fall asleep. At the May 2013 hearing, the Veteran testified that he was currently taking medication for insomnia. He testified that after his sleep study, he was informed that he has "shift work syndrome." The Veteran testified that he worked 24 hour shifts while in the military and that "it threw off [his] clock." The Veteran also testified that he has depression, no sexual desire, feels good initially then his energy decreases by the end of the day, has a quick temper, homicidal ideation, nightmares, daytime hypersomnolence and memory loss. The Veteran was prescribed Lunesta and testified that "it knocked [him] out." The Veteran further testified that he was also prescribed medication to keep him awake during the day that "keeps him up all night and causes crazy dreams." A May 2015 VA treatment note confirms the Veteran's 2007 idiopathic hypersomnolence diagnosis. The Veteran reported a history of disturbed sleep for more than 20 years; that he felt tired during the day; and that he slept for approximately 7 hours each night, but at times he was unable to sleep at all. The examiner referred the Veteran for a mental health consultation for features of depression, nightmares and insomnia, complaints of snoring, disturbed sleep, daytime hypersomnolence and fatigue. The examiner noted that the Veteran was depressed; he had no suicidal ideation and he was hostile to others. A June 2014 VA sleep study resulted in the Veteran being diagnosed with mild positional OSA; upper airway resistance insomnia. No parasomnias or electrocardiogram (ECG) abnormalities were observed; the study was suboptimal for the lack of rapid eye movement (REM) sleep. Continuous positive airway pressure (CPAP) therapy was prescribed. The Veteran presented pleasant and in no distress. The Veteran was advised on weight loss and the importance of maintaining an ideal body weight as it relates to his sleep disorder; improved sleep hygiene was also recommended. A June 2014 mental health note indicates that the Veteran presented with depressed mood, insomnia, anhedonia, anxiety, alcohol use, irritability, anger, memory problems- mentally replaying a friend's suicide, mood swings, pain, sexual preoccupations with wife, sexual performance problems, self-esteem problems, excessive spending (lottery tickets), appetite changes, and little interest in doing pleasurable things. The Veteran's sleep difficulties with subsequent fatigue, irritability, and concentration difficulties with subjective mild short term memory difficulties were attributable to dyssomnia NOS. The Veteran reported that he was functional. The Veteran was unemployed at the time of the interview, however, he revealed that has "gone off on people at work and sometimes people rub [him] the wrong way." The Veteran claimed that "no one has said anything about [his work] performance." The Veteran worked as a trainer; he performed contract work until a month prior to the examination. The Veteran reported that his anger issues cause problems between him and his wife and children. His mood, anxiety, and anger were rated a 6 out of 10; he did not report paranoia or suicidal ideation. He reported that he used cannabis and cocaine during the preceding 8-9 years. There was no objective evidence of affected speech (speaking slowly or rapidly). The Veteran demonstrated insight into coping skills that are effective in managing his symptoms; his mood was euthymic/nondysphoric; and his affect was mood congruent, full and appropriate. His thought process was logical; there was no evidence of suicidal/homicidal ideation, auditory/visual hallucinations, or delusions. The Veteran was alert and oriented to person, place, time and situation. His insight and judgement were adequate. In a June 2014 mental health consultation note, the Veteran was described as angry during the interview; his affect was flat; and he "snapped" at the mental health examiner; however, his perception, thought process/content, insight, judgment and memory were normal. The Veteran reported that he was prescribed Provigil which made him edgy and irritable and that he isolated because of his irritability. He reported difficulty forming and maintaining close relationships and that he generally did not get along well with others. A November 2016 sleep apnea disabilities and benefits questionnaire (DBQ) examination confirmed the Veteran's June 2014 upper airway resistance syndrome diagnosis. The examiner noted that the Veteran has mild positional OSA; however, he does not meet the criteria for OSA. The Veteran uses a CPAP machine but continuous medication is not required for control of his sleep disorder. According to the examiner, there were no complications related to his upper airway resistance syndrome diagnosis; it did not impact the Veteran's ability to work. The examiner opined that the Veteran's primary insomnia was diagnostically coded in error as sleep apnea. The Veteran was also afforded a mental disorders DBQ in November 2016. The psychologist confirmed the Veteran's dyssomnia NOS diagnosis and depressive disorder. The Veteran presented with depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work (was fired from his previous 4 jobs) and social relationships; he cried during the examination. The Veteran denied any suicidal/homicidal ideation and audio/visual hallucinations. The Veteran reported that he always had sleep problems. He used a CPAP machine but still had problems sleeping, and on average he slept 2 hours per night. The psychologist noted that the Veteran exhibited occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. According to the psychologist, 25 percent of the Veteran's symptoms were attributable to dyssomnia, while 75 percent were attributable to depression. After carefully reviewing the evidence of record, the Board finds that the Veteran's primary insomnia has not more nearly approximated the criteria for a higher, 50 percent, 70 percent, or 100 percent rating under DC 9410. The probative medical evidence shows that the impairment from the Veteran's primary insomnia more nearly approximates occupational and social impairment contemplated by a 30 percent rating, rather than 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 required for a 50 percent evaluation. The private physicians and VA examiners consistently opined that the Veteran's service connected condition did not manifest as flattened affect, circumstantial, circumlocutory or stereotyped speech, panic attacks, impaired judgment and/or thought process or communication, impaired short- and long-term memory, inappropriate behavior or other behavior that more nearly approximates symptoms requiring a 50 percent evaluation. Namely, the January 2009, January 2013 and November 2016 mental disorders examinations indicate that the Veteran exhibited no objective memory loss or impairment (both short and/or long term) and no ritualistic behavior that interfered with routine activities. He spoke at a normal rate and with normal volume, his thought process was logical, and he did not report experiencing any panic attacks. Crucially, it was the January 2013 VA examiner's opinion that the Veteran's reported sleep difficulties with subsequent fatigue, irritability, and concentration difficulties with subjective mild short-term memory difficulties were attributable to his dyssomnia NOS. The examiner opined that the Veteran's reported depressed mood, appetite changes, and decreased libido were attributable to his nonservice connected adjustment disorder with depressed mood. The examiner also noted that the Veteran's adjustment disorder likely exacerbated the subsequent difficulties the Veteran experienced related to his dyssomnia NOS. VA compensation is not available for "reverse" secondary service connection (i.e., a nonservice connected disability aggravating a service connected disability). The June 2014 mental health note similarly noted that the Veteran's sleep difficulties with subsequent fatigue, irritability, and concentration difficulties with subjective mild short term memory difficulties were attributable to dyssomnia NOS. The November 2016 VA examiner found that 25 percent of the Veteran's symptoms were attributable to dyssomnia, while 75 percent were attributable to depression. Although the Veteran's contentions are, but not limited to, that he has chronic sleep impairment, daytime hypersomnolence, depression, no sexual desire, decreased energy, homicidal ideation, has "gone off on people at work," was fired from his previous 4 jobs, isolates, has decreased interest in doing pleasurable things, has a difficult relationship with his wife and children, consumes alcohol daily to assist him in falling asleep, and was described by a May 2014 mental health professional as angry during an interview, only the Veteran's symptoms of chronic sleep impairment, daytime hypersomnolence, fatigue, irritability, concentration difficulties, and subjective mild memory difficulties have been attributed to the service connected insomnia. His service connected disability caused only 25 percent of his overall functional impairment. As such, the type, frequency, severity, and duration of his symptoms more nearly approximate that which are contemplated by a 30 percent evaluation. With regards to the Veteran's assertions, lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but are not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Veteran is competent to describe current symptoms, such as chronic insomnia, interrupted sleep, irritability, etc. However, as to the severity of the Veteran's primary insomnia and the diagnosis of the underlying condition causing a particular symptom, the Board finds such subject matter to be complex in nature and beyond the competence of a lay person. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the greatest weight is placed on the examination findings in regard to the type and degree of the Veteran's impairment. Having carefully considered the Veteran's contentions in light of the evidence of record and the applicable law, the Board finds that the Veteran's primary insomnia is appropriately evaluated as 30 percent disabling throughout the appeal period. As such, the Veteran's lay contentions are not borne out by the more probative medical testing and psychological evaluations conducted to evaluate the Veteran's complaints. The VA examiners and private physicians have the training and expertise necessary to administer the appropriate tests and/or assessments for a determination of the type and degree of the impairment associated with the Veteran's complaints. The Board has also considered whether a referral for extraschedular rating is warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule; therefore, the assigned schedular evaluation is adequate, and no referral is required. See VA Gen. Coun. Prec. 6-96; see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The schedular evaluation for the Veteran's primary insomnia is not inadequate. The Veteran has primarily complained of chronic insomnia with interrupted sleep, daytime hypersomnolence, fatigue, irritability, concentration difficulties, and memory difficulties, which are contemplated by the rating criteria. The Veteran merely disagrees with the assigned evaluation for his level of impairment. In other words, he does not have any symptoms from his service-connected disorder that are unusual or are different from those contemplated by the schedular criteria. The available schedular evaluations reasonably describe the service-connected disability; thus, the schedular evaluations are adequate to rate the Veteran's disability. The Board need not determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms" such as "marked interference with employment" and "frequent periods of hospitalization." See Thun, 22 Vet. App. at 115. Referral for extraschedular consideration is not warranted. See Gen. Coun. Prec. 6-96. The Board also does not find that the evidence reflects that there is an exceptional circumstance in the Veteran's case even when the disabilities are considered in the aggregate. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). As such, the Board finds that the preponderance of the evidence is against the Veteran's increased rating claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs