Citation Nr: 20004015 Decision Date: 01/16/20 Archive Date: 01/16/20 DOCKET NO. 18-49 961A DATE: January 16, 2020 ORDER Entitlement to a compensable rating for service-connected unspecified sleep-wake disorder is denied. FINDING OF FACT The Veteran’s unspecified sleep-wake disorder is manifested by a disability that has been formally diagnosed, but its symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. CONCLUSION OF LAW The criteria for a compensable rating for service-connected unspecified sleep-wake disorder have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.16, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Air Force from November 1995 to November 2015. 1. Entitlement to a compensable rating for service-connected unspecified sleep-wake disorder. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. The Veteran contends that the symptoms of his sleep wake disorder are more disabling than reflected by his current noncompensable rating. As there is no pertinent diagnostic code for sleep-wake disorder, the Veteran’s disorder has been rated under Diagnostic Code 9413 for unspecified anxiety, which is under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9413. Under the rating criteria for mental disorders, a noncompensable rating is warranted for a mental disability that has been formally diagnosed, but its symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Id. A 10 percent rating is assigned when there is 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 where symptoms are controlled by continuous medication. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remissions. 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 at the moment of the examination. Id. 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 on the basis of social impairment. 38 C.F.R. § 4.126(b). After careful review, the Board finds that for the entire period on appeal, the Veteran’s sleep-wake disorder meets the criteria for a noncompensable rating under Diagnostic Code 9413 and no higher. The Veteran’s VA treatment records do not show ongoing treatment or that he was prescribed any medication. In statements submitted in support of his claim, the Veteran indicated that he should be rated higher because he used a continuous positive airway pressure machine (CPAP). In a November 2019 rating decision, the RO granted him service connection for obstructive sleep apnea and is assigned a 50 percent rating because he uses a CPAP. At the time of the January 2016 examination, the Veteran reported he was married, but separated from his wife. He had a good relationship with his children and had some friends with whom he regularly socializes. He noted that his sleep issues began in 2010, at which time he began waking up hot and sweaty. He did not have flashbacks but on occasion has heard a loud “boom.” He never received any counseling or psychotherapy and did not take any medication for his symptoms. The examiner noted infrequent, mild symptoms and his sleep hygiene was good. Overall, the examiner opined that the Veteran’s sleep-wake disorder was manifested by a mental disability that has been formally diagnosed, but its symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. He noted the Veteran’s history of night sweats but there was no evidence of any mental health issues in his records. The examiner noted the Veteran’s only current symptom as suspiciousness. At the time of the April 2017 examination, the Veteran reported that he occasionally had some depressive or anxious feelings but coped with physical activity. He reported a good support system through his brother and best friend. He also enjoyed certain hobbies such as video games and transformers. At the time of the exam, he was in technical school and reported that he was doing well. He endorsed occasional depressive or anxious feelings, but he copes by doing push-ups. The examiner noted that the Veteran’s only current symptom was chronic sleep impairment but also noted his disorder had mild to moderate features. Ultimately, the examiner opined that the Veteran’s unspecified sleep-wake disorder was manifested by a mental disability that has been formally diagnosed, but its symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Upon weighing the evidence of record, the Board finds that the Veteran’s psychiatric symptoms most closely approximate the criteria for a noncompensable rating for the period on appeal. The medical evidence of record does not demonstrate that the Veteran’s symptoms are manifested by occupational and social impairment due to mild or transient symptoms to warrant a 10 percent evaluation. As noted by both VA examiners, the Veteran reported good relationships with his children and some friends. He also noted that he was enjoying his classes in technical school and was doing well. Additionally, neither the January 2016 or the April 2017 examiner indicated that the Veteran suffered from any level of social or occupational impairment due to his sleep-wake disorder. Moreover, the medical evidence of record, including the Veteran’s statements, show that he does not use continuous medication to control his symptoms, nor did he require any psychiatric therapy. Finally, both the January 2016 and April 2017 examiners opined that the Veteran’s unspecified sleep-wake disorder is manifested by a mental disability that has been formally diagnosed, but its symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication; the criteria for a noncompensable rating. In reaching this conclusion, the Board has considered the Veteran’s reports of symptoms as well as the medical evidence of record. The most probative evidence of record does not show that a compensable rating is warranted for his sleep-wake disorder at this time. Again, his sleep apnea is separately service-connected and assigned a 50 percent rating. A compensable rating is not warranted for the Veteran’s sleep-wake disorder. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.