Citation Nr: 21011286 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 12-34 727 DATE: March 1, 2021 ORDER Entitlement to an initial rating higher than 30 percent for sleep disorder/insomnia for the period prior to January 1, 2006 is denied. Entitlement to a higher rate of special monthly compensation (SMC) based on loss of use of the arms is denied. REMANDED Entitlement to service connection for bilateral eye disability, to include as secondary to service-connected type II diabetes mellitus, is remanded. Entitlement to a higher rate of SMC based on loss of vision is remanded. FINDINGS OF FACT 1. For the period prior to January 1, 2006, the Veteran’s service-connected sleep disorder/insomnia was manifested by chronic sleep impairment which resulted in the Veteran having occasional decreased work efficiency and intermittent periods of inability to perform occupational tasks. 2. The Veteran’s service-connected conditions have not resulted in a loss of use of both arms at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating higher than 30 percent for sleep disorder/insomnia for the period prior to January 1, 2006 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Codes 9499-9422. 2. The criteria for entitlement to a higher rate of SMC based on loss of use of the arms have not been met. 38 U.S.C. §§ 1114 (n); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to May 1971 and from November 1972 to December 1978. These matters come before the Board of Veterans’ Appeals (Board) from December 2010 and February 2017 rating decisions. The issues of entitlement to service connection for a bilateral eye disability and SMC for loss of vision and SMC for loss of use of the arms were remanded for further development in July 2019. The Board denied the issue of entitlement to an initial rating higher than 30 percent for sleep disorder/insomnia for the period prior to January 1, 2006 in a September 2018 decision. The Veteran timely appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion Remand (JMR), which vacated the September 2018 decision and remanded the matter for further adjudication. In November 2019, the Board again denied the claim. The Veteran timely appealed that decision to the Court. In September 2020, the Court granted a Joint Motion Remand (JMR), which vacated the November 2019 decision and remanded the matter for further adjudication. Increased Ratings 1. Entitlement to an initial rating higher than 30 percent for sleep disorder/insomnia for the period prior to January 1, 2006 Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505, (2007). The Veteran is seeking a higher initial disability rating for his sleep disorder/insomnia for the period prior to January 1, 2006, which is currently rated as 30 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9499-9422. Under Diagnostic Code 9422, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occasional 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. A 50 percent rating is assigned for occupational and social impairment with 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for 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 situations (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is in order when there is 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, occupation, or own name. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating, then that rating will be assigned. Id. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In sum, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. See Vazquez-Claudio, 713 F.3d at 118. In various statements, the Veteran reported that he had difficulties sleeping due to his neck pain. He would wake up during the night due to his neck pain and described a good sleep as five to six hours of sleep with three “sleep episodes” separated by a minute to an hour. He averaged a little over three and a half hours of sleep per night. The Veteran reported that his sleep was “drastically compromised,” as he would fall asleep at work for a few minutes at a time several times a week, which affected his employment and employability. See e.g., November 1, 2001 Statement in Support of the Claim; May 24, 2004 and August 2, 2004 Correspondence; and April 7, 2003 Notice of Disagreement. In a statement dated July 2004, the Veteran’s former co-worker, L.G., stated that he worked with the Veteran and was aware that the Veteran had difficulties sleeping over the years due to an injury and that he took medication for the pain. L.G. reported that the Veteran frequently slept at work due to his medication or lack of sleep, which could result in the Veteran’s termination. See August 2, 2004 Buddy/Lay Statement. In a June 2004 VA examination for the cervical spine, the Veteran reported pain with stiffness. Whenever he slept, he continuously pushed his neck in a forward and upward motion to relieve spasms and took medication. According to a July 2004 private treatment, the Veteran’s neck pain made him unable to sleep at night without positioning his neck “just so.” According to VA treatment records from September 2004 to September 2005, the Veteran occasionally slept sitting up and holding his neck due to neck pain. The neck pain would also wake him up several times causing drowsiness and sleepiness in the daytime. A June 2004 record showed the Veteran was able to do all activities of daily living and he was married with eight children with only one staying with him. In a February 2014 correspondence, the Veteran’s attorney contended that the following symptoms were present from November 1, 2001 to December 31, 2005: flattened affect, difficulty in complex understanding, impairment of short-and long-term memory, impaired judgment, impaired abstract thinking, disturbances in motivation and mood, and difficulty with work and social environments. The attorney also claimed that the Veteran had “one of the worst neck disabilities witnessed” and there was no anatomical position for the neck that offered relief. See February 11, 2014 Third Party Correspondence. In a December 2014 correspondence, the Veteran’s attorney contended that it should be self-evident that excruciating pain would result in sleep impairment. He claimed that regular sleep impairment resulted in “concentration and/or focus, concern for one’s safety, and general mental lucidity...to fall by the wayside.” He further claimed that sleep impairment for a prolonged period of time would negatively impact the Veteran’s psychological nature and areas of daily life. The Veteran’s attorney stated that “any medical treatise from any reputable site [would] confirm importance for one’s general health brought on by a good night of restful sleep,” but did not present or cite any specific medical treatise evidence. See December 8, 2014 Correspondence. In a July 2018 argument correspondence, the Veteran’s attorney further contended that the medical records from 2001 to 2006 showed reports of the Veteran’s inability to sleep and the effects thereof. He asserted that the continual sleep deprivation reduced the Veteran’s productivity, reliability, and all facets of his functions. He stated that during the relevant appeal period, the Veteran had fallen asleep while with a client, which ultimately resulted in his permanent removal from the workforce. See July 27, 2018 Correspondence. Based on the foregoing, the Board finds that the evidence of record does not support a finding that the Veteran’s sleep disorder/insomnia warrants a rating in excess of 30 percent for the period prior to January 1, 2006. Throughout the period on appeal, and as evidenced by the evidence of record, the Board finds that the Veteran’s sleep disorder/insomnia more closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to symptoms such as chronic sleep impairment. Indeed, the Board notes that the only symptom of the Veteran’s sleep disorder/insomnia documented in the record is chronic sleep impairment. The Veteran had not shown any symptoms of flattened affect, circumlocutory speech, panic attacks occurring more than once a week, difficulty in understanding commands, impairment of short-and long-term memory, or impaired judgment or thinking, which would be implicated in a 50 percent evaluation. Though the Board recognizes that the Veteran has experienced some occupational impairment due to being drowsy or falling asleep at work, the totality of the Veteran’s symptoms and functionality are more closely encapsulated by the criteria for a 30 percent evaluation. Additionally, the Veteran does not contend nor does the record show that he suffered any social impairment due to his sleep disorder/insomnia. Furthermore, the Board finds that at no time has the Veteran evidenced suicidal ideation, obsessional rituals, illogical speech, near continuous panic, impaired impulse control, neglect of his personal appearance and hygiene, gross impairment of thought processes, delusions or hallucinations, or other symptoms which would implicate a 70 or 100 percent disability rating. The Board does not find that the evidence of record establishes that the Veteran’s sleep disorder/insomnia resulted in total social and occupational impairment or deficiencies in most areas of his life. Moreover, the fact that the Veteran’s symptoms are generally captured by the criteria for a 30 percent evaluation further weighs against their equivalency to the symptoms associated with a rating in excess of 30 percent. The Board has considered the statements submitted by the Veteran and his attorney in support of the claim. The Board acknowledges that the Veteran competent to report observable symptoms he experiences through his senses such, such as his drowsiness and chronic sleep impairment. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Additionally, his attorney is not competent to report the Veteran’s observable symptoms or identify a specific level of disability. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Per the June 2019 and September 2020 JMRs, the Board has been tasked to specifically address evidence of social impairment from VA treatment records, dated September 28, 2005, as this evidence may be related to Veteran’s service-connected sleep disorder/insomnia. The attending therapist, LCSW B.D.L, noted the Veteran had no friends locally, had trouble connecting with people since Vietnam, and had arguments “with many other people, including his ex-wives.” Upon review of the September 28, 2005 VA treatment records, there is no indication, from either LCSW B.D.L. or the Veteran, which attributes the aforementioned reported symptoms/complaints to the Veteran’s service-connected sleep disorder/insomnia. Instead, these medical records appear to be an informal PTSD assessment or screen. Specifically, the Veteran’s aforementioned reported symptoms/comments either make reference to or were responses to questions regarding his social interactions upon returning from Vietnam. In fact, LCSW B.D.L. recorded a summary of the Veteran’s visit on that date and his reported symptoms/comments, which only references the Veteran’s tour of duty in Vietnam and psychiatric symptoms upon returning from Vietnam. Further, based on the Veteran’s comments/responses, LCSW B.D.L. referred him for a PTSD evaluation. The September 2020 JMR found that the Board did not “provide an adequate statement of reasons or bases” for the finding that the September 28, 2005 treatment record was an informal PTSD assessment/screen. The JMR noted that “the record appears to reflect that Appellant was not diagnosed with PTSD until April 9, 2007 (R at 284-285 (VA Mental Health Outpatient Consult), and a March 20, 2006, VA mental health consult shows no diagnosis of PTSD. (R. at 329-331).” The Board notes that the March 20, 2006 mental health consult was focused on the Veteran’s desire to quit using tobacco products. While PTSD was not noted as a diagnosis on that consultation, there is no indication that the consult was made for the purpose of diagnosing a psychiatric disorder; rather it was to set up a plan for the Veteran to follow to attempt to stop smoking. The Board does not find the lack of a diagnosis of PTSD on this consultation to be persuasive evidence that PTSD symptoms were not present at that time. Further, the April 9, 2007 mental health consultation that resulted in a diagnosis of PTSD notes the Veteran’s description of “survivor guilt, hyperalertness, difficulty relating to others, having no friends, feels emotionally detached, repeated combat-related nightmares, difficulty concentrating. He has had several marriages.” These symptoms/manifestations of PTSD had clearly been present for some time. Thus, while PTSD was not specifically diagnosed until April 2007, the Board does not find that the March 20, 2006 or April 9, 2007 mental health consultations to be inconsistent with our finding that the September 28, 2005 symptoms/complaints were related to as yet undiagnosed PTSD rather than the service-connected sleep disorder/insomnia. Thus, based on a review of the September 28, 2005 VA treatment records, the Board finds that this evidence is not related to Veteran’s service-connected sleep disorder/insomnia. Accordingly, the Board finds that a rating in excess of 30 percent for the Veteran’s sleep disorder/insomnia for the period prior to January 1, 2006 is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a higher rate of SMC based on loss of use of the arms The Veteran contends that he is entitled to SMC based upon loss of use of his arms. The Veteran is service connected for, inter alia, right and left upper extremity cervical myelopathy with upper radicular group nerve paralysis. He is also service connected for arthritis of the left and right shoulders. He primarily contends that the impairment of his arms is caused by his service-connected bilateral shoulder disabilities. VA pays SMC for certain specified service-connected disorders. 38 U.S.C. § 1114. SMC is provided for the anatomical loss or loss of use of both arms with factors preventing natural elbow action with prostheses in place. 38 U.S.C. § 1114 (n). A VA shoulder and arms examination was conducted in March 2020. Muscle strength testing was 5/5 in both shoulders, and there was no muscle atrophy. There was no ankylosis of either shoulder. The examiner noted limitation of motion and pain of the shoulders. The examiner noted the Veteran had “very limited ability to reach overhead or lift above shoulder height.” The examiner stated there was not functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. On VA peripheral nerves examination in March 2020, the Veteran reported numbness and tingling of the fingers bilaterally. Muscle strength testing was 5/5 in both shoulders, and there was no muscle atrophy. Upper extremity reflexes were normal. There was mild incomplete paralysis of the medial nerve bilaterally. The examiner stated there was not functional impairment of an extremity such that no effective functions remain other than that which would be equally well served by an amputation with prosthesis. The competent, probative medical evidence is against finding loss of use of both arms. To the extent the Veteran relies on his own assertions and reports, the Board finds that, while he, as a lay person, is competent to report his symptoms, loss of use is a technical term with a specific meaning and requires detailed medical findings to determine. The Veteran is not competent to make such determinations. See Davidson, 581 F.3d at 1316; King, 700 F.3d at 1344-45. In any case, even if the Veteran’s opinion was accepted as competent on this issue, the overwhelming medical evidence outweighs the lay opinion. The greater weight of the evidence is against the Veteran’s claim of entitlement to special monthly compensation under subsection (n). The claim is denied. REASONS FOR REMAND 3. Entitlement to service connection for bilateral eye disability, to include as secondary to service-connected type II diabetes mellitus 4. Entitlement to a higher rate of special monthly compensation (SMC) based on loss of vision The Veteran contends that he has current vision impairment that is associated with his service-connected type II diabetes mellitus. Pursuant to the Board’s previous remand, a VA examination was conducted in March 2020. The examiner diagnosed cataracts of both eyes and opined that the Veteran’s cataracts were age-related and not related to service. The examiner did not provide an opinion as to whether or not the Veteran’s cataracts were aggravated by his service-connected diabetes mellitus. When VA undertakes to provide a VA examination or medical opinion, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Based on the above, the Board finds that a remand is required for an addendum opinion that adequately addresses the aggravation aspect of the claim. Since a decision on the remanded issue of entitlement to service connection for bilateral eye disability could significantly impact a decision on the issue of entitlement to a higher rate of SMC based on loss of vision, the issues are inextricably intertwined. A remand of the claim for SMC is required. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate VA medical professional. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination for his eyes. Provide the claims file, including a copy of this REMAND, to the examiner for review. After reviewing the claims file, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran’s current cataracts of the left and/or right eye were aggravated (increased beyond the natural progression of the disability) by his service-connected diabetes mellitus? In providing the opinion, the examiner should consider the Veteran’s complete and relevant medical history. A complete rationale for any opinion expressed must be provided. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Mazzucchelli, 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.