Citation Nr: A21018672 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 210814-178317 DATE: November 23, 2021 ORDER Entitlement to an initial rating in excess of 30 percent for an insomnia disorder from August 7, 2018, is denied. FINDING OF FACT The Veteran's insomnia disorder is productive of chronic sleep impairment with mild memory loss (such as forgetting names, directions, recent events). CONCLUSION OF LAW The criteria for an initial rating higher than 30 percent for an insomnia disorder are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.126, 4.130, General Rating Formula for Mental Disorders.. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the Army from March 1963 to March 1970 with service in the Republic of Vietnam. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's August 2021 VA Form 10182 Decision Review Request: Board Appeal, he elected the evidence submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, which is from January 2021, as well as any evidence submitted by the Veteran within 90 days of the request for appellate review. 38 C.F.R. § 20.303. Initial Ratings The Veteran is seeking an adjustment in his rating for an insomnia disorder, that he contends deserves a higher rating than 30 percent. See August 2021 VA Form 10182. The Veteran through his representative contends that he is entitled to a higher rating based on the clinical evaluation of Dr. J.G. dated in July 2021. Dr. J.G. notes the Veteran exhibits difficulty in establishing and maintaining effective work and social relationships that resulting in reduced reliability and productivity. See November 2021 Representative Correspondence. Applicable Laws and Regulations Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the individual's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Here, the Veteran's insomnia disorder is rated under the General Rating Formula for Mental Disorders as 30 percent disabling by analogy to Diagnostic Code (DC) 9423, which provides for rating an unspecified somatic symptom and related disorder. Under DC 9422 a 30 percent rating is evidenced by occupational and social impairment with occasional decrease 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, General Rating Formula for Mental Disorders. A 50 percent evaluation is warranted when the psychiatric disorder results in 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted when the psychiatric disorder results in 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 a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when the psychiatric disorder results in 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. The use of the term "such as" in the general rating formula for mental disorders 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 symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated 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." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29Vet. App.10, 22 (2017); 38C.F.R. §4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Analysis Upon review of the Veteran's entire history, the Board concludes that the preponderance of the evidence is against a rating in excess of 30 percent at any time during the appeal period for the Veteran's service-connected insomnia disorder. Importantly, as this is an appeal as to the initial rating assigned, the relevant temporal focus is from August 7, 2018, the effective date of the award of service-connection, to present. The Veteran is currently rated at 30 percent throughout the appeal period for his insomnia disorder. As such, to warrant a higher rating, the evidence must show that the Veteran's symptoms, at the very least, more nearly approximate a rating of 50 percent at some point during the appeal period. See 38 C.F.R. § 4.7. The symptoms noted in the September 2018 VA service connection examination noted 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 medication. The examiner further notes the Veteran appeared well groomed and was alert throughout the evaluation and did not show signs of fatigue nor did the Veteran complain of fatigue. The examiner notes the Veteran's behavior as cooperative and appropriate with euthymic mood and congruent affect. See September 2018 VA Mental Disorders Examination. Furthermore, the opinion from Dr. J.P. notes the Veteran reported that he "often wakes up screaming, has difficulty initiating and maintaining sleep, his wife complains that he does not sleep, he has anxiety, and he has memory trouble (i.e., taking his medication and some personal hygiene)." See August 2020 Private Medical Opinion. These symptoms are consistent with a rating of 30 percent rating. See Vazquez-Claudio, 713 F.3d at 116. As noted above, a 50 percent evaluation is warranted when the psychiatric disorder results in 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; difficulty in establishing and maintaining effective work and social relationships. Review of the Veteran's claims file does not reveal symptoms emblematic of these symptoms or symptoms such as the aforementioned. The Veteran's symptomatology more nearly approximates a 30 percent rating. Furthermore, the Veteran has not demonstrated a level of impairment consistent with the 70 and/or 100 percent criteria, nor do the Veteran's symptoms cause occupational and social functioning with deficiencies in most areas or resulting in total occupational and social impairment. Mauerhan, supra, Vazquez-Claudio, supra. The criteria for the next higher rating of 70 percent have not been met or approximated. See 38 C.F.R. § 4.130, Diagnostic Code 9422. The Board has not overlooked the Veteran's lay statements found in the record. In this regard, the Veteran is credible to report on what he has seen and how he acts and feels. The Veteran is also certainly competent to report how he believes his insomnia disorder has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board finds more competent and credible the medical opinions provided by the VA examiners as discussed above, in rendering a decision as to the severity of the Veteran's insomnia disorder based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his VA examinations conducted throughout the appeal period, which, as the Board notes, does consider his lay statements. Lastly, the Board would like to discuss the representative's contentions submitted in November 2021, that reference a clinical evaluation of Dr. J.G. dated in July 2021. See November 2021 Representative Correspondence. As the record was closed as of the date of issuance of the AOJ decision in January 2021 and opened again for a period of 90 days after receipt of the Veteran's VA Form 10182 NOD and the referenced clinical evaluation was not received with in this time period, the Board may not consider this evidence. 38 C.F.R. § 20.303. If the evidence is new and relevant, VA will issue another decision upon the Veteran's filing of a supplemental claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. As such, a rating in excess of the 30 percent already assigned is not supported by the evidence of record, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.