Citation Nr: 21061314 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-61 402 DATE: October 1, 2021 ORDER Restoration of a 50 percent rating for primary insomnia from January 1, 2011 is granted. FINDING OF FACT The reduction in the disability rating for primary insomnia from 50 percent to 10 percent was not based on improvement in the Veteran's ability to function under the ordinary conditions of life and work. CONCLUSION OF LAW The criteria for restoration of a 50 percent rating for primary insomnia from January 1, 2011 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 3.344, 4.1, 4.2. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1986 to December 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified before the undersigned. Here, the Veteran sought service connection for posttraumatic stress disorder and did not claim that his primary insomnia had progressed. See February 2015 VA Form 21-526b. Pursuant to a January 2016 rating decision, the RO reduced the Veteran's rating for primary insomnia from 50 percent to 10 percent disabling effective April 1, 2016. In his March 2016 Notice of Disagreement (NOD), the Veteran appealed the reduction of his primary insomnia and not the denial of service connection for PTSD. While he noted on the NOD that he was seeking restoration of a 50 percent rating "or higher," the rating decision on appeal did not address the Veteran's entitlement to a rating in excess of 50 percent, nor did the October 2017 Statement of the Case, and the Board cannot address this separate issue in the first instance. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992), Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (noting the difference between rating-increase claims and rating-reduction claims), Brown v. Brown, 5 Vet. App. 413, 421-22 (1993) (when the RO reduces a disability rating, the Board is required to establish that rating reduction rather than reinstatement of rating is warranted). Thus, the Board concludes the issue is not whether the Veteran was entitled to service connection for PTSD or an increased disability rating for his primary insomnia, but whether the reduction of the Veteran's disability rating from 50% to 10% was proper. The Veteran is encouraged to file an increased rating claim on the appropriate VA-promulgated form if he wishes to pursue a rating in excess of 50 percent for his insomnia. Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). Where a rating has been in effect more than five years, benefits will not be reduced based upon an examination that is less full and complete than the examination on which payments were authorized or continued. Ratings on account of diseases subject to temporary or episodic improvement, such as manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, etc., will not be reduced on any one examination, except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. See 38 C.F.R. § 3.344. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344 (c). The Veteran's 50 percent rating for primary insomnia was in effect from January 1, 2011 to April 5, 2016, i.e., for more than five years. Thus, the additional protections set forth in 38 C.F.R. § 3.344 are for application in this case. The Veteran was granted service connection for primary insomnia rated as 50 percent disabling in an April 2011 rating decision based on a February 2011 VA examination report. The February 2011 VA examiner noted the Veteran's primary insomnia was resulting in symptoms of depression, anxiety, daytime somnolence, fatigue, poor concentration, and decreased social and occupational effectiveness. The Veteran's reduction was based on a singular VA examination conducted in October 2015, as noted above, in conjunction with the Veteran's claim for entitlement to service connection for PTSD. The October 2015 VA examiner concluded that the Veteran's primary insomnia (now diagnosed as insomnia disorder) resulted in chronic sleep impairment and depressive symptoms. The VA examiner concluded that the Veteran's depressive symptoms were best accounted for by the Veteran's recent medical issues and surgery and his insomnia disorder. Thus, the examiner has attributed depressive symptoms to the Veteran's insomnia. The Veteran also reported experiencing psychosocial stress. The October 2015 VA examiner, a psychologist, noted the Veteran's insomnia symptoms were significantly improved with medication. In May 2016, the Veteran submitted a privately completed psychiatric examination. Notably, the psychiatrist that completed the disability benefits questionnaire, Dr. J.C., also provided the Veteran with treatment from May 2016 through April 2018. The private medical doctor diagnosed the Veteran with primary insomnia, major depressive disorder, and panic disorder without agoraphobia. Dr. J.C. made a specific finding that these disorders symptoms could not be differentiated from each other. Thus, all the reported symptoms are associated with the Veteran's insomnia. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Dr. J.C. noted the Veteran's symptoms were depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, circumlocutory or stereotyped speech, disturbances of mood and motivation, intermittently illogical speech, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and suicidal ideation. In any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred but also that the observed improvement actually reflects an improvement in a veteran's ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000); Brown, 5 Vet. App. at 420-21; 38 C.F.R. §§ 4.2, 4.10. Thus, the Board finds, based on the Veteran's report at the October 2015 VA examination that his symptoms had worsened in the 18 months prior to the examination now requiring prescription medication and the May 2016 examination completed by Dr. J.C. to be demonstrative of the fact that the Veteran's psychiatric disorder has not stabilized, is unlikely to improve, and does not reflect an improvement in the Veteran's ability to function under the ordinary conditions of life and work. See Dofflemyer, 2 Vet. App. At 281 (post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement). Critically, at the time of the reduction in January 2016, the Veteran's 50 percent rating had been in place for more than 5 years and was not subject to a reduction based on a single examination. Given the medical evidence of record, the Board finds that that the reduction in the rating was improper. The Board finds that the evidence shows that the RO improperly relied upon a single examination when reducing the Veteran's disability rating, contrary to the requirements of 38 C.F.R. § 3.344. Additionally, as it is not shown that the Veteran demonstrated material improvement under the ordinary conditions of life, a restoration of the 50 percent rating for insomnia is warranted and the relief sought on appeal is granted in full. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.