Citation Nr: 21015830 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-12 510 DATE: March 18, 2021 ORDER An increased rating for service-connected insomnia, evaluated as 10 percent disabling prior to June 24, 2019, and as 50 percent disabling therefrom, is denied. FINDINGS OF FACT 1. Prior to June 24, 2019, the Veteran’s insomnia is shown to have been productive of chronic sleep impairment, but not occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. As of June 24, 2019, the Veteran’s insomnia is shown to have been productive of symptoms that included chronic sleep impairment, anxiety, and disturbances of motivation and mood, but not occupational and social impairment, with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to June 24, 2019, the criteria for a rating in excess of 10 percent for service-connected insomnia have not been met. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9403. 2. As of June 24, 2019, the criteria for a rating in excess of 50 percent for service-connected insomnia have not been met. 38 U.S.C. §§ 5107, 1155; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9403. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Increased rating, insomnia. The Veteran asserts that he is entitled to an increased rating for insomnia. He argues that his insomnia is negatively impacting the quality of his life. He states that he is constantly battling sleeplessness due to his insomnia that is inflamed by pain, headaches, acid reflux, and stress. He argues that his symptoms have caused difficulties in school, and that he has been provided with medication for his symptoms. See Veteran’s statement, received in June 2014. He further argues that his insomnia is not controlled by medication, despite attempts to treat his symptoms with Ambien, Lunesta, Restoril, and Trazodone, with limited or no results. He states that his insomnia and sleep deprivation continually affect his ability to perform occupational and social tasks, with negative impacts on his behavior and memory (e.g., “forgetting events due to significant insomnia”). See Veteran’s appeal (VA Form 9), received in March 2016. Statements from the Veteran’s spouse, received in February and June of 2014, shows that she states that the Veteran was taking medication for sleep during service, and that his insomnia has had a negative effect on his activities and social gatherings, and that he continues to have insomnia. With regard to the history of the disability in issue, the Veteran’s service treatment records include a Medical Evaluation Board report, and a Physical Evaluation Board report, dated in September and October of 2007, respectively, which note that the Veteran was in a motor vehicle accident in December 2005 after he fell asleep at the wheel and hit a tree at 60 miles per hour, with resulting injuries to areas that included the thoracic aorta (traumatic right pneumothorax), ribs, left jaw, left arm, left knee and left ankle, requiring multiple associated surgeries. His medications were noted to include Ambien. Following separation from service, a VA general medical examination report, dated in April 2008, showed that the Veteran had normal orientation, coordination, memory, speech, affect, mood, judgment, and comprehension of commands, and appropriate behavior. Private treatment records, dated between 2008 and 2012, show that the Veteran complained of insomnia, and that he was provided with Ambien and Restoril. In August 2008, the RO granted service connection for insomnia, evaluated as 10 percent disabling. There was no appeal, and the RO’s decision became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In June 2014, the Veteran filed a claim for an increased rating. In January 2015, the RO indicated that it decreased the Veteran’s rating to noncompensable. However, there is nothing to show that the RO did, in fact, ever reduce the Veteran’s rating for insomnia. See e.g., RO code sheets dated in January 2015 and January and February of 2016. In a statement of the case, dated February 2, 2016, the RO indicated that the Veteran’s 10 percent rating for insomnia had been “restored,” and that an increased rating of 30 percent was not warranted. In March 2016, the Veteran filed a timely appeal (VA Form 9). Despite the language in some of the RO’s communications, the RO never reduced the Veteran’s rating for insomnia. Therefore, there is no issue on appeal as to the propriety of a reduction in the Veteran’s rating for insomnia. Cf. 38 C.F.R. §§ 3.105, 3.344; Brown v. Brown, 5 Vet. App. 413, 420 (1993). In July 2020, the RO granted the increased rating claim to the extent that it assigned a 50 percent rating, with an effective date of June 24, 2019. Since this increase did not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board notes that service connection is currently in effect for disabilities that include tension headaches, gastroesophageal reflux, several left lower extremity disabilities, a back disability, and a left hip disability. The RO has evaluated the Veteran’s insomnia under 38 C.F.R. § 4.130, Diagnostic Code 9403. Under DC 9403, a 10 percent rating is warranted when there is 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 continuous medication. A 30 percent rating is assigned when a psychiatric disability causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted when a psychiatric disability causes 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where an acquired psychiatric disability causes 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 ideations; obsessional rituals that 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. Id. That portion of VA’s Schedule for Rating Disabilities (“the Schedule”) that addresses service-connected psychiatric disabilities was based on the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) IV prior to a change effective August 4, 2014. 38 C.F.R. § 4.130. The regulation has been changed to reflect the current DSM, the DSM-V. As this appeal was certified to the Board in August 2020, after the effective date for this change, DSM-5 is applicable to this claim. See 70 Fed. Reg. 45,093-94 (Aug. 4, 2014). As such, the use of global assessment of functioning scores is inappropriate. Golden v. Shulkin, 29 Vet. App. 221 (2018). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Prior to June 24, 2019. VA progress notes, dated beginning in 2013, notes complaints of poor sleep, and headaches related to stress and lack of sleep that were managed locally. Private treatment reports, dated between June 2013 and 2014, note complaints of difficulty sleeping with associated headaches. In July 2013, he was noted to be alert and oriented. Mood was stable with a good range of effect. In May 2014, he reported that he had not slept in two weeks, that he had headaches related to poor sleep, and that he had recently obtained Ambien. The reports note sleep issues and insomnia, with use of medications that included Lunesta (Temazepam) and Ambien. A VA headache disability benefits questionnaire (DBQ), dated in March 2014, shows that the Veteran complained of headaches that were related to how much sleep he got the night before. Statements from M.R., M.D., dated in March and May of 2014, note treatment since 2008. Dr. M.R. states that the Veteran has “significant insomnia,” and that at times he does not sleep for three to four days. Multiple medications have not improved his symptoms, to include Ambien, Restoril, and Lunesta. A recent two-week episode of insomnia was treated with Valium and resulted in an impaired his ability to think, remember, and be oriented to time, and was related to issues with mood irritability and migraine headaches. A VA mental disorders DBQ, dated in November 2014, shows the following: The Veteran reported that he has been married for eight years. He described his relationship with his spouse as “good.” He denied social impairment, but he reported experiencing a mild increase in arousal. He reported that he stopped working in security due to orthopedic problems. He said that he is a full-time student and that he is doing well in school; he denied having any problems. He is capable of performing ADLs (activities of daily living) and he does these routinely. He does not have a history of outpatient treatment or inpatient admissions. He denied changes in cognition. The examiner stated that the Veteran did not demonstrate symptoms of a traumatic brain injury. The Veteran denied any relevant military or post-military legal or behavioral history or history of substance abuse. On examination, the Veteran was alert and oriented. He provided an accurate history. Insight was adequate. Response times were normal. Affect was normal. Attention was normal. He was not distractible. Speech was spontaneous, fluent, grammatic, and free of paraphasia. Immediate, recent and remote memories were within normal limits. There were no other symptoms attributable to a mental disorder. He is capable of managing his financial affairs. The diagnosis was insomnia disorder. The examiner indicated that although a mental condition had been formally diagnosed, the Veteran’s symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. Private treatment reports dated beginning in 2015 note that the Veteran had a normal mood and affect. He was active and alert. He was oriented to time, place, and person. VA progress notes show that in April 2015, the Veteran complained of a headache. The examiner indicated that there the Veteran did not have any speech or memory problems. In June 2016, the Veteran was diagnosed with obstructive sleep apnea. Other VA progress notes dated in 2016 show that the Veteran reported a history of insomnia beginning in 2003, with current complaints of irritability, road rage, short-term memory problems, headaches, and insomnia. This evidence shows the following: The Veteran is able to maintain IADLs (individual activities of daily living). He denied nocturia or sleep-related reflux. He said that he is a stay-at-home dad and that he lives with his wife and two children. On examination, speech was spontaneous, prosodic, coherent, fluent, had a normal rate and tone, and was without paraphasic errors. Comprehension and cognition were intact. Concentration was normal. He was socially appropriate. Thought process was linear and logical. Judgement was fair or intact. Insight was fair. Working, recent, and remote memory were intact. Affect was reactive, or mood congruent. The Veteran denied homicidal or suicidal ideation, plan or intent. He denied paranoia, delusions, grandiosity, or audio or visual hallucinations. He was noted to have a “20” on the insomnia severity index, which was characterized as “moderate.” Mood was upbeat. His recreation was noted to include fishing, kayaking, and camping. His medications included Ambien. The Veteran reported that he has an associate degree in criminal justice. The diagnoses and impressions included insomnia, psychophysiological insomnia, positional sleep apnea, and possible restless leg syndrome. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran’s insomnia. A significant number of his complaints appear to be related to his headaches, for which he has been separately evaluated. The Veteran appears to have maintained a good relationship with his wife and children. In 2014, he reported that he was a full-time student and that he was doing well in school. It appears that he subsequently received an associate degree. There is insufficient evidence of impairment of speech, cognition, concentration, memory, thought process, homicidal or suicidal ideation, plan or intent, delusions, or audio or visual hallucinations to warrant an increased rating. The evidence shows that the Veteran is able to maintain his individual activities of daily living. The November 2014 VA examiner indicated that although a mental condition had been formally diagnosed, the Veteran’s symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, and this most closely corresponds to a noncompensable rating. See 38 C.F.R. § 4.130. The Veteran’s symptoms are not sufficiently severe to have resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The totality of the evidence shows that the Veteran’s insomnia most closely resembles the criteria for not more than a 10 percent rating. In summary, there is insufficient evidence of such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; or mild memory loss, nor are other psychiatric symptoms shown to have resulted in the required level of impairment. Vazquez-Claudio. Given the foregoing, the Board finds that the Veteran’s symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a rating of 30 percent under DC 9403, and that the findings do not support a conclusion that his symptoms are productive of a “similar severity, frequency, and duration” as those required for a 30 percent rating. See 38 C.F.R. § 4.7; Vazquez-Claudio. As of June 24, 2019. A VA DBQ, dated in June 2019, shows that the examination was performed on June 24, 2019. The Veteran complained of constant pain, and migraine headaches twice a month. The Veteran reported the following: He has limited social contacts. He takes care of his children and he is involved in their activities. He maintains the household. He has a regular workout routine. He has been married since 2007. His marriage is good. He has been a stay-at-home dad for the last ten years. He has completed two semesters of college. He is not currently taking any medications. The examiner indicated that there is no relevant military or post-military history of legal or behavioral history or substance abuse. The Veteran’s symptoms were noted to include anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work like setting. On examination, the Veteran was well groomed. He was oriented as to time, place and circumstance. He displayed no odd or unusual behaviors. Speech was within normal limits. Recent and remote memory was intact. His thoughts were logical, and goal directed. The examiner stated that the preponderance of evidence in the record is that the Veteran has consistently had issues with sleep from the time he was diagnosed. Fatigue, irritability, and some anxiety are reasonable and most likely to be a consequence of impaired sleep. Sleep deprivation and/or sleep disturbance impacts adversely the individual's ability to concentrate and stay focused. Mood typically is one of easily being frustrated and irritable. Virtually all areas of normal functioning are compromised to some degree. The Veteran has attempted school on more than one occasion since discharge and has not been able to complete the desired goals. The diagnosis was insomnia disorder, persistent. The examiner indicated that the Veteran’s symptoms were productive of occupational and social impairment with reduced reliability and productivity. VA progress notes, dated in 2019, show that the Veteran complained of poor sleep. The findings show that the Veteran was oriented to person, time, and place, and that his mood and affect were normal or appropriate. The Board finds that a rating in excess of 50 percent is not warranted. There is little or no evidence of suicidal ideations, obsessional rituals, speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or an inability to establish and maintain effective relationships. The June 2019 VA examiner concluded that the Veteran’s symptoms were productive of occupational and social impairment with reduced reliability and productivity, and this most closely corresponds to no more than a 50 percent rating under the General Rating Formula. 38 C.F.R. § 4.130. To the extent that the VA examiner noted that the Veteran has had difficulty in school with symptoms include difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting, the basis for this is unclear. The evidence shows that the Veteran has been married since 2007. In June 2019 he characterized his marriage as “good.” During the time period on appeal, the Veteran has reported that he stopped working in security due to orthopedic problems. He subsequently reported that he was doing well in school and that he had earned an associate degree. He has been a stay-at-home dad care of his children for the last ten years. He is involved in his children’s activities. He maintains the household. He has a regular workout routine. There is no history of outpatient treatment or inpatient admissions for psychiatric symptoms. There are no findings to show difficulties with employment due to psychiatric symptoms. In summary, the evidence is insufficient to show that the Veteran has such symptoms as suicidal ideation with plan or intent, obsessional rituals, defects in speech, near-continuous panic or depression which affect his ability to function independently, appropriately, and effectively; impaired impulse control, spatial disorientation, neglect of personal appearance and hygiene, or difficulty in adapting to stressful circumstances, nor are there other psychiatric symptoms shown to have resulted in such impairment, such that a rating of 70 percent is warranted. See 38 C.F.R. § 4.130; Vazquez-Claudio. Accordingly, a rating in excess of 50 percent for insomnia from June 24, 2019 is not warranted. Carole R. Kammel Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.