Citation Nr: 21068315 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 16-51 023 DATE: November 10, 2021 ORDER Entitlement to a compensable rating for insomnia is denied. Entitlement to a rating in excess of 10 percent for the bilateral hearing loss is denied. FINDINGS OF FACT 1. The service connected insomnia has been shown to be manifested by no more than an inability to sleep at night and associated daytime fatigue and found to be "not severe enough either to interfere with occupational and social functioning or to require continuous medication." 2. Bilateral hearing loss was manifested by no more than right ear Level I hearing impairment and left ear Level XI hearing impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for insomnia have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.20, 4.130, Diagnostic Code 9434. 2. The criteria for a rating in excess of 10 percent for bilateral hearing loss have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1974 to February 1978. He died in March 2019. In May 2019, the Veteran's surviving spouse was substituted as the Appellant in this appeal. Increased Rating Disability ratings are determined by comparing the Veteran's symptoms with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Insomnia The Appellant asserts that a 20 percent rating for the service connected insomnia is warranted. The rating schedule does not specifically address insomnia. In such situations, it is permissible to evaluate the service connected disability under provisions of the rating schedule which pertain to a closely related disease or injury which is analogous in terms of the function affected, anatomical localization and symptomatology. 38 C.F.R. § 4.20. The Agency of Original Jurisdiction determined that the service connected insomnia is analogous to major depressive disorder. The Board of Veterans' Appeals (Board) finds that insomnia is analogous to major depressive disorder in terms of the nature and impact of the disabilities' symptoms. A 10 percent rating is warranted for major depressive disorder which is productive of occupational and social impairment due to either 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 requires occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although the individual is generally functioning satisfactorily with routine behavior and normal self care and conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating requires occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks occurring 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 or 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 rating requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); and an inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting herself or others, an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9434. The report of a January 2016 Department of Veterans Affairs (VA) psychiatric examination states that the Veteran complained of sleep impairment associated with ringing of his ears which kept him awake for three to four hours a night. He clarified that his sleep impairment left him tired throughout the day. The Veteran was noted to be neatly dressed and oriented to person, place, and time. On mental status examination, the Veteran exhibited a flat affect; a somewhat depressed mood; logical, organized, and coherent verbalizations and thoughts; and no delusions, hallucinations, or suicidal or homicidal ideations. The Veteran was diagnosed with insomnia with tinnitus. The examiner concluded that "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. In his October 2016 Appeal to the Board, VA Form 9, the Veteran clarified that "I am able to sleep during the day when other noises like family moving around and turning on the TV or just making noise helps" and "otherwise, I feel like I am going mental because the constant noise in my ears." An October 2016 written statement from the Appellant conveys that the Veteran was restless all night and could not sleep. She stated that the Veteran was tired all throughout the day; "never wants to do anything;" and the "insomnia affects his thoughts, moods, and social life." The service connected insomnia has been shown to be manifested by an inability to sleep at night and associated daytime fatigue, depressed mood, and a lack of interest in social activities. The January 2016 VA psychiatric examination report conveys that of the service connected disability's symptoms were "not severe enough either to interfere with occupational and social functioning or to require continuous medication." While acknowledging that the service connected insomnia was diagnosed and found to be symptomatic, the Board finds that the record does not establish that the disability interferes with the Veteran's occupational and social functioning. Absent such impairment, a compensable rating is not warranted. Bilateral Hearing Loss The Appellant asserts that a percent rating for the service connected bilateral hearing loss is warrant as the Veteran experienced difficulty hearing conversations and television programs. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The report of a December 2015 VA examination states that the Veteran exhibited pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 15 20 60 70 41 92% LEFT 75 65 65 70 69 18% The audiometric findings denote Level I right ear hearing impairment and Level XI left ear hearing impairment. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 is shown in the left ear. However, applying the provisions of Table VIA does not result in a more favorable finding. 38 C.F.R. § 4.86. In his Appeal to the Board, VA Form 9, the Veteran indicated that his friends and family could not talk with him as he could not hear them and asked them to repeated everything that they had said. While he received hearing aids, he found that they did not help alleviate his hearing impairment. (Continued on the next page) The Appellant asserts that a rating in excess of 10 percent is warranted for the service connected bilateral hearing loss as the hearing disability significantly affected his ability to communicate with others and was not relieved by hearing aids. The service connected bilateral hearing loss disability has been shown to be productive of no more than Level I hearing impairment in the right ear, and Level XI hearing impairment in the left ear. Such findings do not warrant assignment of a rating in excess of 10 percent under Diagnostic Code 6100. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including difficulty hearing impacting his personal relationships. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). Therefore, a rating in excess of 10 percent for bilateral hearing loss is denied. J. T. HUTCHESON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.