Citation Nr: 21011874 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-17 043 DATE: March 2, 2021 ORDER Entitlement to a total rating for a psychiatric disability, currently rated at 60 percent, is denied. Service connection for a disorder manifested by insomnia is denied. REMANDED Entitlement to a rating in excess of 10 percent prior to January 27, 2020, for a lumbar spine disability is remanded. Entitlement to a rating in excess of 20 percent from January 27, 2020, for a lumbar spine disability is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. Entitlement to a rating in excess of 10 percent for patellofemoral pain syndrome of the left knee is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The psychiatric disability does not result in total impairment. 2. The insomnia is a manifestation of the service-connected psychiatric disability, and contemplated in the rating. CONCLUSIONS OF LAW 1. The criteria for a total rating for a psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411. 2. The criteria for a disorder manifested by insomnia have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310, 4.14. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1999 to November 2003. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge via videoconference. A transcript of the proceeding is of record. The Veteran’s psychiatric disability is evaluated under the 70 percent rating criteria of Diagnostic Code 9411. A 70 percent rating is warranted when the evidence shows 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); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for 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 symptoms listed are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. 38 C.F.R. § 4.126(a). The record includes treatment records, October 2014, April 2017, and January 2020 VA examination records, a February 2019 private evaluation record, and Social Security Administration (SSA) records. The Board finds the Veteran’s psychiatric disability does not more nearly approximate the total schedular rating criteria. Notably, the record does not suggest impairment more severe than “deficiencies in most areas,” which is the impairment contemplated by the 70 percent rating. The record indicates that the Veteran is consistently oriented and able to maintain personal hygiene. He is able to work for at least some of the appellate period and maintain relationships with some family members and friends and his children. He has been able to provide his own history during examination and other medical treatment and in conjunction with the appeal, and medical records consistently indicate that the Veteran poses no risk of self-harm and maintains contact with reality. Furthermore, communication and thought process are predominantly determined to be normal. Although the record indicates that the Veteran has impairment of impulse control, including by punching walls and getting in fights, he has consistently denied homicidal ideation and has been able to control his behavior during evaluations and treatment throughout the appeal period. The Board finds the functioning depicted by the record does not more nearly approximate total impairment, and notes that this finding is consistent with medical examiners who have not reported findings of total impairment. Regarding the claim for service connection for insomnia, VA regulations contemplate sleep impairment as a manifestation of psychiatric disability. Notably, it is explicitly contemplated in the 30 percent rating. 38 C.F.R. § 4.130. The record indicates that the Veteran’s reported insomnia has been attributed to his psychiatric disability. There is no medical indication that the insomnia is a manifestation of a distinct (i.e. service-connectable) disorder and the Veteran has not provided any competent evidence in support of such a finding. Consideration of a separate rating on the basis of insomnia or other sleep disturbance alone would doubly compensate the Veteran for the same symptoms already considered under his evaluation for service-connected PTSD and violate the rule against pyramiding, even if a separate diagnosis of insomnia is demonstrated. See 38 C.F.R. § 4.414. Thus, the claim is denied. REASONS FOR REMAND Although VA examinations were recently conducted, the examination record does not adequately report the impact of repeated use or flares on range of motion. This must be done. The claim for entitlement to a TDIU is intertwined with the claims above; it is held in abeyance pending completion of the development discussed below. The matters are REMANDED for the following action: Afford the Veteran VA examination by an examiner with sufficient expertise to fully assess the Veteran’s service-connected low back and knee disabilities. The examiner must provide all information required for rating purposes, including pursuant to the “new” rating criteria (effective February 7, 2021). The examiner must discuss functional limitation with repeated movement over time and during flare-ups. Any such additional limitation of motion should be expressed in additional degrees of lost motion. The examiner must attempt to provide an estimate, even in the absence of an opportunity to observe the flare-up. The estimate may be based on the Veteran’s reports of limitation during such flares. The Veteran should be requested to visually estimate the functional impairment during the most common flares and most severe flares. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.