Citation Nr: 18158340 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 16-53 521 DATE: December 18, 2018 ORDER A rating in excess of 30 percent for primary insomnia is granted. REMANDED A rating in excess of 10 percent for osteoarthritis of the thoracolumbar spine is remanded. FINDING OF FACT For the entire appeal period, the weight of the evidence shows that the Veteran’s service-connected mental health disorder resulted symptoms of a nature and severity most nearly approximating in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for primary insomnia during the entire appeal period, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1987 to June 2011. This rating matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 1. A rating in excess of 30 percent for primary insomnia Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence 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. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. Percentage ratings for mental health disabilities are based on the criteria in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list but, rather, serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating for a mental disorder. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Indeed, “VA must engage in a holistic analysis” that assess the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under General Rating Formula for Mental Disorders, a 30 percent evaluation is warranted for 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), 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 assigned 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: 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 closes relatives, own occupation, or own name. The Veteran seeks a rating in excess of 30 percent for his primary insomnia. In October 2012 VA examination, the Veteran was diagnosed with primary insomnia and adjustment disorder. The examiner indicated that it was possible to differentiate which symptoms and resulting occupational and social impairment were attributable to each diagnosis. A VA examiner in October 2016, also indicated that it was possible to differentiate which symptoms and resulting occupational and social impairment were attributable to each diagnosis. However, the examiner also wrote that multiple associations between the diagnoses were likely. The absence of sleep and anxieties likely exacerbated mood problems and anxieties likely interfered with sleep. In light of the foregoing, the Board finds that the competent and probative evidence is at least in equipoise as to whether the entirety of the Veteran’s psychiatric symptoms are attributable, either directly or on a secondary basis, to his service-connected primary insomnia. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam) (explaining that VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant’s service-connected disability). As such, the Board will consider all psychiatric symptom when analyzing the rating for this mental health disorder. After review of the relevant medical and lay evidence, the Board finds that the criteria for an initial rating of 70 percent, but no higher, is warranted. In statements from September 2013 (notice of disagreement) and October 2016 (substantive appeal), the Veteran reported he is prone to mood swings due to his sleeping issues. These mood swings have caused temper issues that lead to conflicts, disagreements, and occasionally to hostile environments. He also indicated that he had frequent panic attacks and memory loss. The October 2012 VA examiner documented symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, difficulty in understanding complex commands, disturbances in motivation and mood, suicidal ideation, and impaired impulse control. The Veteran reported frequently interrupted sleep and being tired to the point that it interfered with his daily functioning. Following review of the claims file and clinical evaluation, the VA examiner concluded the Veteran’s psychiatric disorders demonstrated 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. Mental health notes from 2013 document moderate depression. The Veteran reported insomnia, nighttime wakefulness, decreased interest in activities, anhedonia, low energy, lethargy, feelings of hopelessness, decreased appetite, and irritability. He denied suicidal and homicidal ideation. He was divorced and had three children. His relationship with his daughter was strained. He currently had a girlfriend and described the relationship as good. He also indicated that he enjoyed his job and the people that work for him. During his assessments, he was well groomed, alert, oriented to time and place, and cooperative. His cognition, short-term, and long-term memory all appeared intact. His insight, judgment, and impulse control were also grossly intact. In a September 2016 mental health assessment, it was noted that the Veteran had not been active in mental health treatment with VA providers. The Veteran reported several periods of depression and that his symptoms had recently increased. He endorsed initial and middle insomnia, depressed mood, irritability, poor concentration, poor memory, low motivation, and hopelessness. His wife complained of his irritability and a work review also noted irritability. He also experienced anxiety and panic attacks up to three times a day. He endorsed suicidal ideation without intent or plans. He was working as a supervisor in a warehouse. During the assessment, he was observed to be well groomed, cooperative, with linear and logical thought processes. At an October 2016 VA examination, documented symptoms were depressed mood, anxiety, near-continuous panic or depression, mild memory loss, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, obsessional rituals which interfere with routine activities, and persistent danger of hurting self or others. The examiner observed that the Veteran presented as less distressed than the problems he reported, though he was clearly upset about his worsening condition. He reported strained relationships with his wife and children. He was promoted to a supervisory position at a warehouse about two years prior. The Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s mental health symptoms result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood throughout the period on appeal, thus warranting a 70 percent rating. See 38 C.F.R. § 4.130. The Board engaged in a holistic analysis of the severity, frequency, and duration of the signs and symptoms of the Veteran’s psychiatric disorder, but finds that his mental health symptoms do not more nearly approximate a 100 percent rating. The Board notes that following symptoms exhibited by the Veteran are specifically contemplated under the rating criteria for a 70 percent evaluation: near-continuous panic or depression, difficulty in understanding complex commands, impaired impulse control, suicidal ideation, and obsessional rituals which interfere with routine activities. 38 C.F.R. § 4.130. Additionally, the Board finds that the evidence does not more nearly approximate total social and occupational impairment. For example, the Veteran was promoted to supervisor and got married during the period on appeal. With regard to an example symptom of persistent danger of hurting self or others, it was noted that he was at a low chronic risk for suicide and there was no evidence of risk for imminent harm to self or others. Additionally, the Veteran was always fully oriented and appropriately dressed at all VA examinations and mental assessments throughout the appeal period and demonstrated no significant impairment of thought process, memory, or speech. Moreover, none of the mental health professionals who evaluated the Veteran during the relevant period found that his PTSD symptoms resulted in total occupational and social impairment. In sum, the Board finds that a 70 percent rating, and no higher, is warranted for the Veteran’s mental health disorder during the entire appeal period. REASONS FOR REMAND 1. A rating in excess of 10 percent for osteoarthritis of the thoracolumbar spine is remanded. The record reflects that VA-generated evidence has been added to the claims file since the claim was last adjudicated in the January 2017 Supplemental Statement of the Case (SSOC). Specifically, a new examination for his service-connected osteoarthritis of the thoracolumbar spine was added in January 2018. The Veteran has not waived consideration of such evidence. The Board notes that Section 501 of the Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 provides for an automatic waiver of initial AOJ review of evidence submitted by a Veteran or his or her representative where a substantive appeal is filed on or after February 2, 2013, unless the claimant or the claimant’s representative request in writing that the AOJ initially review such evidence. 38 U.S.C. § 7105(e)(1). However, such is not the case here as the Veteran or his representative did not submit such evidence to VA. Additionally, evidence received by the agency of original jurisdiction prior to transfer of the records to the Board of Veterans' Appeals after an appeal has been initiated (including evidence received after certification has been completed) will be referred to the appropriate rating or authorization activity for review and disposition and a supplemental statement of the case (SSOC) will be furnished in accordance with 38 C.F.R. § 19.31. 38 C.F.R. § 19.37(a). Here, the RO certified the appeal on March 15, 2017, but the file was not transferred and activated at the Board until February 27, 2018. See 3/15/2017, VA Form 8; 2/27/2018 letter. The matter is REMANDED for the following actions: 1. Obtain and associate with the Veteran’s claim file all outstanding VA treatment records. 2. After associating any records with the claims file, issue a supplemental statement of the case that considers all relevant evidence of record, including the January 2018 VA examination report. Then, return the case to the Board, if otherwise in order. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel