Citation Nr: 18148454 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-42 917 DATE: November 7, 2018 ORDER Entitlement to a compensable rating for a breathing related sleep disorder (claimed as insomnia) is denied. REMANDED Entitlement to a rating in excess of 50 percent for sleep apnea is remanded. Entitlement to an earlier effective date for the grant of service connection for sleep apnea is remanded. FINDING OF FACT The evidence is insufficient to show that the Veteran’s breathing related sleep disorder (claimed as insomnia) manifested in 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 to warrant a compensable rating. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for a breathing related sleep disorder (claimed as insomnia) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.126, 4.130, DC 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from April 1987 to September 2012. 1. Entitlement to a compensable rating for a breathing related sleep disorder (claimed as insomnia). Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The assignment of a particular Diagnostic Code (DC) depends wholly on the facts of the particular case. Butts v. Brown, 5 Vet. App. 532, 538 (1993). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. Here, the Veteran’s breathing related sleep disorder (claimed as insomnia) is assigned a noncompensable rating under DC 9413 for an unspecified anxiety disorder. Under DC 9413, a 0 (zero) percent rating is warranted when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. An evaluation of 10 percent is warranted for 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. An evaluation of 30 percent is warranted for occupational and social impairment with occasional decreased 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A rating of 50 percent is assignable for 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 per week; difficulty in understanding complex commands; impairment of short- and long-term memory (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 rating of 70 percent is assigned for 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); inability to establish and maintain effective relationships. A 100 percent evaluation is assignable 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 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. Ratings are assigned according to the manifestation of symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability during the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation based on social impairment. 38 C.F.R. § 4.126(b). Here, the evidence is insufficient to show that the Veteran’s breathing related sleep disorder manifested in mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication to warrant a compensable rating. Notably, the Veteran was scheduled for a VA examination in January 2016 for his insomnia condition and failed to appear. The Veteran did not provide good cause as to why he did not appear. 38 C.F.R. § 3.655. Consequently, evidence that could have been favorable to the Veteran’s claim could not be obtained. Notably, in his August 2017 VA Form 9, the Veteran explicitly stated that he is not requesting an increased rating for his diagnosis of insomnia. As such, entitlement to a compensable rating for a breathing related sleep disorder is not warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 50 percent for sleep apnea is remanded. In September 2015 the Veteran filed an increased rating claim for his breathing related sleep disorder claimed as insomnia. In support of his claim he reported that he is currently assigned a noncompensable rating for his insomnia but also indicated that he had a diagnosis of sleep apnea and currently uses a CPAP machine. See September 2015 Statement in Support of Claim. A January 2016 rating decision granted service connection for sleep apnea and assigned a 50 percent rating effective September 25, 2015. The Veteran’s increased rating claim for a breathing related sleep disorder (claimed as insomnia) was deferred. In a March 2016 rating decision, the Agency of Original Jurisdiction (AOJ) continued the Veteran’s noncompensable rating for a breathing related sleep disorder. In January 2017, the Veteran filed a notice of disagreement (NOD). On the form, he indicated that he disagreed with the April 2016 notification letter regarding his noncompensable rating for a breathing related sleep disorder. On his NOD form, the Veteran also stated that his sleep apnea diagnosis was documented as insomnia upon retirement from service and that his medical records show severe symptoms. He further reported that he does not know why the reviewer wrote “insomnia” on his original paperwork. The Veteran requested an increase in his sleep apnea rating to 100 percent and an earlier effective date of November 2012 – the date when he originally filed a claim. Although the Veteran indicated on his form that he disagreed with the April 2016 notification, which specifically addressed the noncompensable rating for a breathing related sleep disorder, the Veteran’s statements clearly indicate that he disagreed with January 2016 rating decision regarding the effective date and rating for his sleep apnea. Because the two disabilities are similar and could be easily confused and because the NOD is timely with regard to both rating decisions, the Board will accept the January 2017 NOD as disagreeing with the January 2016 rating decision. In a June 2017 statement of the case (SOC) the AOJ addressed the issue of evaluation of a breathing related sleep disorder but did not adjudicate the Veteran’s contentions regarding an effective date for his sleep apnea evaluation or the sleep apnea evaluation. Notably, on the August 2017 VA Form 9, the Veteran reported that he believes the insomnia diagnosis was an error when it was entered in his record upon retirement. He further reported that he completed a sleep study in 2012 and was diagnosed with sleep apnea. He indicated that resubmitted all his paperwork in 2015 and received a 50 percent rating for sleep apnea. He again specifically indicated that he is requesting that his 50 percent rating for sleep apnea be increased and given an earlier effective date. He further stated that he is not requesting an increased rating for his diagnosis of insomnia. Based on the evidence of record, the Board construes the January 2017 NOD as a timely NOD with the January 2016 rating decision regarding sleep apnea. The RO has not issued a statement of the case (SOC) in response. Thus, the Board is required to remand the matter for issuance of a statement of the case addressing the claim. See 38 C.F.R. § 19.9(c); see also Manlincon v. West, 12 Vet. App. 238 (1999). 2. Entitlement to an earlier effective date for the grant of service connection for sleep apnea is remanded. As the January 2016 rating decision granted service connection for sleep apnea effective September 25, 2015 and the Veteran filed an NOD in January 2017 regarding the effective date, a remand for issuance of an SOC is required. See Manlincon, 12 Vet. App. at 238. The matters are REMANDED for the following action: (Continued on the next page)   Issue a statement of the case addressing the issues of entitlement to a rating in excess of 50 percent for sleep apnea and entitlement to an earlier effective date for the grant of service connection for sleep apnea. Inform the Veteran that to complete the appellate process for this issue, he should submit a timely substantive appeal. If the Veteran perfects his appeal by filing a timely substantive appeal, the matter should be returned to the Board for further appellate review, if otherwise in order. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel