Citation Nr: 21006533 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-54 896 DATE: February 4, 2021 ORDER Entitlement to an initial disability rating greater than 20 percent for neuropathy of the left upper extremity is denied. Entitlement to an initial disability rating greater than 20 percent for neuropathy of the right upper extremity is denied. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for neuropathy of the left upper extremity is denied. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for neuropathy of the right upper extremity is denied. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for neuropathy of the left lower extremity is denied. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for neuropathy of the right lower extremity is denied. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for insomnia is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to an initial disability rating greater than 10 percent for neuropathy of the left lower extremity is remanded. Entitlement to an initial disability rating greater than 20 percent for neuropathy of the right lower extremity is remanded. Entitlement to an initial disability rating greater than 10 percent for insomnia is remanded. Entitlement to an effective date prior to July 30, 2018 for the award of special monthly compensation (SMC) based on housebound criteria is remanded. FINDINGS OF FACT 1. Since the initial grant of service connection, the Veteran’s left upper extremity peripheral neuropathy has been manifested by no more than mild incomplete paralysis of all radicular groups. 2. Since the initial grant of service connection, the Veteran’s right upper extremity peripheral neuropathy has been manifested by no more than mild incomplete paralysis of all radicular groups 3. On May 28, 2015, the Veteran filed a claim for entitlement to service connection for neuropathy of the left upper extremity. 4. On May 28, 2015, the Veteran filed a claim for entitlement to service connection for neuropathy of the right upper extremity 5. On May 28, 2015, the Veteran filed a claim for entitlement to service connection for neuropathy of the left lower extremity. 6. On May 28, 2015, the Veteran filed a claim for entitlement to service connection for neuropathy of the right lower extremity. 7. On May 28, 2015, the Veteran filed a claim for entitlement to service connection for insomnia (claimed as mental health conditions). 8. The Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment for which his education and occupational experience otherwise qualified him. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating greater than 20 percent for neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8513. 2. The criteria for entitlement to an initial disability rating greater than 20 percent for neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8513. 3. The criteria for entitlement to an effective date earlier than May 28, 2014 for the award of service connection for neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § § 3.102, 3.155, 3.400. 4. The criteria for entitlement to an effective date earlier than May 28, 2014 for the award of service connection for neuropathy of the right upper extremity have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § § 3.102, 3.155, 3.400 5. The criteria for entitlement to an effective date earlier than May 28, 2014 for the award of service connection for neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § § 3.102, 3.155, 3.400 6. The criteria for entitlement to an effective date earlier than May 28, 2014 for the award of service connection for neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § § 3.102, 3.155, 3.400 7. The criteria for entitlement to an effective date earlier than May 28, 2014 for the award of service connection for insomnia have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § § 3.102, 3.155, 3.400 8. The criteria for an award of a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1966 to July 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in September 2019 when they were remanded to the Agency of Original Jurisdiction (AOJ) for the issuance of a Statement of the Case. The Board has considered the Veteran’s claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 1. Entitlement to an initial disability rating greater than 20 percent for neuropathy of the left upper extremity 2. Entitlement to an initial disability rating greater than 20 percent for neuropathy of the right upper extremity The Veteran contends that an initial disability rating greater than 20 percent is warranted for his peripheral neuropathy of the left upper extremity. He also contends that an initial rating greater than 20 percent is warranted for peripheral neuropathy of the right upper extremity. Service connection for right and left upper extremity peripheral neuropathy was granted in a November 2018 rating decision, and initial 20 percent disability ratings were assigned for each, effective May 28, 2014, under 38 C.F.R. § 4.124a, Diagnostic Code 8513. The Veteran is right hand dominant; thus, it is considered his major extremity for rating purposes and the left upper extremity is considered the minor extremity. His upper extremity disabilities are rated under Diagnostic Code 8513 which provides ratings for diseases of the peripheral nerves, paralysis of all radicular groups. For the major extremity, a 20 percent rating is afforded for mild, incomplete paralysis; a 40 percent rating for moderate, incomplete paralysis; a 70 percent rating for severe, incomplete paralysis; and a 90 percent rating for complete paralysis. For the minor extremity, a 20 percent rating is afforded for mild, incomplete paralysis; a 30 percent rating for moderate, incomplete paralysis; a 60 percent rating for severe, incomplete paralysis; and an 80 percent rating for complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8513. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement. Id. The words “slight,” “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. In August 2018, the Veteran underwent a VA examination. The Veteran reported loss of sense of touch in his hands beginning two to five years earlier. The examiner indicated that the Veteran was right hand dominant. The Veteran reported mild right and left upper extremity numbness. He denied right and left upper extremity constant pain, intermittent pain, or paresthesias and/or dysesthesias. On neurologic examination, muscle strength was normal. Deep tendon reflexes were also normal. Light touch and monofilament testing were normal at the right and left shoulder area and the right and left inner and outer forearm but were decreased in the right and left hands and fingers. There was normal position sense and vibration sensation in the right and left upper extremities, but cold sensation was decreased in both upper extremities. There was no evidence of muscle atrophy. The examiner determined that the Veteran experienced upper extremity diabetic peripheral neuropathy. The examiner concluded that there was mild incomplete paralysis of the right and left upper extremity radial nerve, median nerve, and ulnar nerve. The diagnosis was bilateral upper extremity peripheral neuropathy. The examiner found the severity of the upper extremity sensory neuropathy to be mild. The examiner stated that the Veteran’s peripheral neuropathy impacted his ability to work as it affected his ability to grip, grasp, and pick things up. In September 2018, the Veteran underwent another VA peripheral neuropathy examination. The Veteran reported mild intermittent pain, paresthesias and/or dysesthesias, and numbness of the right and left upper extremities. He denied constant pain in the right and left upper extremities. On examination, there was normal strength on right and left elbow flexion and extension, right and left wrist flexion and extension, right and left grip, and right and left pinch of the thumb to index finger. Deep tendon reflexes were normal at the biceps, triceps, and brachioradialis. Light touch and monofilament testing were normal at the right and left shoulder area and the right and left inner and outer forearm but was decreased in the right and left hands and fingers. Position sense and vibration sensation were not tested. Cold sensation was decreased. The examiner concluded that the Veteran had mild incomplete paralysis of the right and left median nerves. The diagnosis was right and left upper extremity neuropathy. The examiner stated that the Veteran’s peripheral neuropathy impacted his ability to work, as numbness and tingling caused difficulties with repetitive motion. Initial disability ratings greater than 20 percent for peripheral neuropathy of the right and left upper extremities are not warranted. The Board finds that the evidence of record demonstrates that the Veteran had, at most, mild incomplete paralysis of all radicular groups in the right and left upper extremities. Specifically, his disabilities were manifested by no more than mild sensory and functional impairment, which more nearly approximates mild incomplete paralysis of all radicular groups. Consequently, peripheral neuropathy of the right and left upper extremities warrant no more than 20 percent disability ratings under Diagnostic Code 8513. The Board observes that the Veteran’s neuropathy of the right and left upper extremities involved impairment of other nerve groups, including the radial, median, and ulnar nerves. However, as the Veteran is already in receipt of a rating that contemplates impairment in all radicular groups, separate ratings for such disabilities under Diagnostic Codes 8510, 8514, 8515, and 8516 based on the same neurological symptoms would constitute prohibited pyramiding. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62. Effective Date In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. The Veteran’s appeal of the effective date assigned for the grant of service connection for neuropathy and mental health conditions were initiated after March 24, 2015; accordingly, the amended regulations requiring that all claims be filed on standard VA forms apply to that appeal. There is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). 3. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for neuropathy of the left upper extremity 4. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for neuropathy of the right upper extremity; 5. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for neuropathy of the left lower extremity 6. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for neuropathy of the right lower extremity 7. Entitlement to an effective date prior to May 28, 2014 for the grant of service connection for insomnia The Veteran’s initial claim for entitlement to service connection for neuropathy and mental health conditions was received by VA on May 28, 2015. The claims were granted by the RO in a November 2018 rating decision with disability ratings assigned effective May 28, 2014. After thorough consideration of the evidence of record, the Board concludes that an effective date prior to May 28, 2015 is not warranted for the grant of service connection for these claims. 38 C.F.R. § 3.400 (r). The evidence of record does not reveal that a formal or informal claim for entitlement to service connection for these claims was received prior to May 28, 2015. See 38 C.F.R. § 3.155. Accordingly, the earliest communication indicating an intent to apply for service connection for neuropathy and mental health conditions is the claim received by VA on May 28, 2015. In addition, an earlier effective date is not warranted based on the date entitlement to the benefit arose. The earliest evidence showing neuropathy, is dated on September 15, 2009. At that time the Veteran was noted to have pain in both feet by his podiatrist and was subsequently evaluated for neuropathy. The earliest evidence for insomnia was a VA treatment noted dated January 29, 2013. Although the medical evidence documents findings of neuropathy and insomnia prior to the date of receipt of his initial claim for service connection, 38 C.F.R. § 3.400 is clear that the effective date for an award of service connection is the later of the date entitlement arose or the date the claim was received. Thus, an effective date earlier than May 28, 2015 for the award of service connection for neuropathy and insomnia is not possible in this case. The pertinent legal authority governing effective dates in this case is clear and specific, and the Board is bound by this authority. Pursuant to this authority, the Board finds that there is no legal basis by which an effective date prior to May 28, 2014 for the grant of service connection for neuropathy and insomnia may be assigned; hence, the claims for an earlier effective date must be denied. 38 C.F.R. § 3.400 (b)(2)(i). 8. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Entitlement to a total rating must be based solely on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment. See 38 C.F.R. § 4.16 (a). In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Individual unemployability must be determined without regard to any nonservice-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to show unemployability. A high rating in itself is recognition that the impairment makes it difficult to secure or follow employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in a Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. § § 3.341 (a), 4.16, 4.19. See Van Hoose, 4 Vet. App. at 363; Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). A Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In a September 2018 rating decision, the RO assigned a 100 percent rating for prostate cancer effective July 30, 2018, and granted SMC based on housebound criteria pursuant to 38 U.S.C. § 1114. The Board notes that the award of a 100 percent rating does not categorically render the question of TDIU moot. In Bradley v. Peake, 22 Vet. App. 280 (2008), the Court held that VA must consider a TDIU claim despite the existence of a schedular total rating and award SMC under 38 U.S.C. § 1114(s) if VA finds a separate disability supports a TDIU independent of the disability with a 100 percent rating. Prior to July 30, 2018, service connection was in effect for coronary artery disease at 60 percent, neuropathy of the left upper extremity at 20 percent, neuropathy of the right upper extremity at 20 percent, neuropathy of the left lower extremity at 10 percent, neuropathy of the right lower extremity at 10 percent, insomnia at 10 percent, and diabetes mellitus, type II at 20 percent. His combined disability rating was 90 percent, effective May 28, 2014, even before his prostate cancer rating and subsequent award of SMC. Hence, the Veteran’s combined disability rating prior to July 30, 2018 satisfies the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16 (a) for TDIU. The record establishes that the Veteran cannot secure or follow substantially gainful employment due to his service-connected disabilities. The Veteran’s Application for Increased Compensation Based on Unemployability received April 2019 shows that he last worked full time as a builder in 2008. The Veteran reported that he completed four years of high school and some college courses. The Veteran noted that he stopped working due to his service-connected disabilities causing him pain. In October 2015, the Veteran underwent a VA heart condition examination. The examiner reported dyspnea as a symptom during activity consistent with activities such as light yard work, using a lawn mower, or brisk walking. In a September 2018 VA examination, the examiner reported the Veteran’s heart condition impacted his ability to work in that he experienced shortness of breath upon exertion. In a diabetic peripheral neuropathy examination from October 2015, the Veteran reported feeling bilateral burn of the feet, shooting pains, electric charges in bilateral hands, sense of bugs running inside his legs and additional painful symptoms. In August 2018, VA examination the examiner determined the Veteran’s neuropathy impacted his ability to work. The examiner noted the Veteran’s neuropathy affects his ability to grip, grasp, pick things up, as was well as the prolonged ability to stand and walk. In a September 2018 neuropathy examination, the examiner concluded the Veteran’s neuropathy impacted his ability to work, noting the Veteran suffered symptoms of lower leg pain, tingling, numbness, and difficulty with prolonged walking, as well as arms tingling, numbness, and difficulty with repetitive motion. In support of his claim, the Veteran submitted a May 2017 private assessment from Dr. H.S., received April 2019. Dr. H.S. concluded that the Veteran was not employable due to the combined effects of his service-connected diabetes, heart condition, and negative side-effects of his medications used to treat his diabetes, heart condition, and mental health condition. In light of evidence of record, and with consideration of the benefit of the doubt, the Board concludes that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The May 2017 private assessment in favor of the Veteran’s claim is probative, as it is based on a factual history of the Veteran’s employment and symptomatology associated with his service-connected disabilities. Additionally, the opinion provides supporting rationale for the conclusions reached. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (“[T]he ‘benefit of the doubt’ standard is similar to the rule deeply embedded in sandlot baseball folklore that ‘the tie goes to the runner’.... [I]f... the play is close, i.e., ‘there is an approximate balance of positive and negative evidence,’ the veteran prevails by operation of [statute].”). Resolving reasonable doubt in the Veteran’s favor, entitlement to a TDIU is granted. REASONS FOR REMAND 1. Entitlement to an initial disability rating greater than 10 percent for neuropathy of the left lower extremity and entitlement to an initial disability rating greater than 20 percent for neuropathy of the right lower extremity is remanded. Review of the record reflects that the Veteran was provided with VA examinations assessing the severity of his right and left lower extremity peripheral neuropathy in August 2018 and September 2018. The August 2018 VA examiner concluded that the Veteran’s right and left lower extremity was manifested by mild incomplete paralysis of the right and left sciatic nerves while the September 2018 VA examiner found mild incomplete paralysis of the right and left femoral nerves. It is unclear from the evidence whether the Veteran’s right and left lower extremity peripheral neuropathy results in impairment to the sciatic nerves, the femoral nerves, or both. Accordingly, remand is warranted for the Veteran to undergo a new VA examination to determine which lower extremity peripheral nerves are impacted by his service-connected peripheral neuropathy of the right and left lower extremities. 2. Entitlement to an initial disability rating greater than 10 percent for insomnia is remanded. Review of the claims file reflects that the Veteran last underwent a VA examination assessing the severity of his insomnia in September 2015, over five years ago. The medical evidence associated with the claims file reflects that the Veteran’s insomnia may have worsened in severity since that time, as the recent VA treatment records reflect that the severity of the Veteran’s insomnia was found to be moderate, rather than mild. Accordingly, the Veteran should be provided with a new VA examination to assess the current severity of his insomnia. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Additionally, all updated VA treatment records should be obtained and associated with the claims file. 3. Entitlement to an effective date prior to July 30, 2018 for the award of special monthly compensation (SMC) based on housebound criteria is remanded. The issue of entitlement to an effective date prior to July 30, 2018 for the grant of entitlement to Dependents’ Educational Assistance under 38 U.S.C. § Chapter 35 is intertwined with the increased rating claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination to assess the current level of severity of his right and left lower extremity peripheral neuropathy. The electronic claims file must be made available to and reviewed by the examiner. All indicated tests and studies, including electromyography and nerve conduction studies, should be conducted. All pertinent symptomatology and findings should be reported in detail, and the examiner should state whether the Veteran’s symptoms result in incomplete paralysis which may be classified as mild, moderate, moderately severe, or severe, or whether there is complete paralysis. The examiner should specifically address whether the right and left peripheral neuropathy result in impairment to the sciatic nerves, the femoral nerves, or both. (Continued on the next page)   2. Schedule the Veteran for a comprehensive VA psychiatric examination to determine the current severity of the Veteran’s insomnia. The evidence of record, in the form of electronic records, and any additional VA treatment or evaluation records in digital formats must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must provide fully descriptive assessments of all psychiatric symptoms. The examiner must comment on the presence or absence, and the frequency, severity, and duration of symptoms due to insomnia and discuss the effects of those symptoms on the Veteran’s occupational and social functioning. The examiner must also conduct a mental status examination and address the medical evidence in the VA treatment records showing that the Veteran’s insomnia was moderate in severity. A complete rationale for all opinions must be provided. 3. After completing the above development, and any other development deemed necessary, readjudicate the issues on appeal taking into consideration all newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. MICHELLE P. KATZ Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Javed, 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.