Citation Nr: 21028409 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-32 447 DATE: May 11, 2021 ORDER Entitlement to a 10 percent rating, but not higher, for insomnia prior to February 2, 2018 is granted. Entitlement to a rating of 70 percent for insomnia starting February 2, 2018 is granted. FINDINGS OF FACT 1. The Veteran's insomnia is characterized by symptoms controlled by continuous medication. 2. The Veteran's insomnia disorder was productive of occupational and social impairment, with deficiencies in most areas, due to such symptoms as anger, depression, social withdrawal, and difficulty adapting to stressful circumstances. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for insomnia have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.130, Diagnostic Code 9410. 2. The criteria for a 70 percent rating for insomnia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served with the United States Army from January 2012 to October 2015. This matter was previously remanded by the Board of Veterans' Appeals (Board) in September 2019. The Board's September 2019 remand directives and the subsequent actions of the agency of original jurisdiction (AOJ) will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. The Veteran was scheduled to provide testimony at a video conference hearing in January 2019. The Board previously noted in the September 2019 Board Decision that the Veteran failed to appear and did not request for it to be rescheduled. The Veteran's representative has submitted several informal hearing presentations. Neither the Veteran nor his representative have requested that a new hearing be scheduled. Accordingly, the hearing request is deemed withdrawn. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In this case, staged ratings for the disability on appeal have already been assigned. In a July 2020 rating decision, the Veteran's insomnia disorder rating was increased from 0 percent to 50 percent effective February 2, 2018. The Veteran contends that his mental health symptomatology is more severe than his noncompensable rating prior to February 2, 2018 and his current 50 percent rating reflects. See July 2020 Rating Decision. 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. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). For the entire period on appeal, the Veteran has been rated under DC 9410 for insomnia, which is evaluated under the General Rating Formula for Mental Disorders. Under DC 9410, a noncompensable rating is warranted for a formally diagnosed mental condition manifested by symptoms that are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted if there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned with 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, or mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if there is 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. A 70 percent rating is warranted if there is evidence of 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 rating is warranted if there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. In this instant case, the Veteran was initially granted service connection for insomnia in a March 2016 Rating Decision pursuant to Diagnostic Code 9410 with an evaluation of 0 percent effective October 2015. See March 2016 Rating Decision. The Veteran's initial grant of service connection for insomnia was increased from 0 percent to 50 percent in a July 2020 Rating Decision, effective February 2, 2018. See July 2020 Rating Decision. The Veteran contends that he is entitled to an increased rating for his insomnia disability for his currently assigned noncompensable rating for the period prior to February 2, 2018, and 50 percent for the period thereafter. As staged ratings have already been assigned, the Board will discuss the propriety of the ratings at each stage. 1. Entitlement to a 10 percent rating, but not higher, for insomnia prior to February 2, 2018 is granted. Turning to the evidence, the Veteran was afforded a VA examination in January 2016. The examiner characterized the Veteran's insomnia symptoms as resulting in a mental condition that had been formally diagnosed, but symptoms were not severe enough either to interfere with occupational and social functioning or require medication. The Veteran reported that he was married since March 2016 and that they had a good relationship. He noted that he had three to four close friends and many casual acquaintances. Occupationally, he was taking 15 credits at a university to earn his degree. He was also working in a work study program and reported that work was going well. The Veteran's reported symptoms included chronic sleep impairment. See January 2016 VA examination. Following the January 2016 examination, the Veteran's treatment records showed the Veteran had been taking Trazadone for his insomnia since February 2017. See March 2018 CAPRI p. 3, 11, 66, 77. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board concludes the evidence supports a 10 percent rating. A compensable rating requires an occupational and social impairment due to mild or transient symptoms which decrease work efficiency and the ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. Here, the Veteran did not report that his chronic sleep impairment had caused any occupational or social impairment. Instead, the Veteran noted that he was attending college, enrolled in 15 credits and was working in a work study program. Further, the Veteran was married and had 2-4 close friends with many casual acquaintances. Moreover, the January 2016 VA examiner made a specific finding that the Veteran's insomnia symptom was not severe enough to either interfere with occupational and social functioning, or that it requires continuous medication. However, the Veteran was prescribed Trazodone for his insomnia symptoms following his January 2016 examination. Therefore, the Board concludes that a 10 percent evaluation is warranted due to the Veteran's continuous medication. However, a rating in excess of 10 percent is not warranted. A 30 percent evaluation is not warranted because the Veteran has not exhibited symptoms of occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran was enrolled in 15 credits and was working in a work study program and his chronic sleep impairment had not impacted his ability to perform occupational tasks. Therefore, the Board concludes that a 10 percent rating, but no higher, for insomnia prior to February 2, 2018 is warranted. 2. Entitlement to a rating of 70 percent for insomnia starting February 2, 2018 is granted. In a September 2019 Board remand, the RO was instructed to obtain a VA examination to assess the severity of the Veteran's insomnia disorder. Based on the findings of the additional development, the Veteran's rating was increased from 0 percent to 50 percent effective February 2, 2018. The RO noted that this was a partial grant. See July 2020 Rating Decision. The Veteran contends that he is entitled to an increased rating for his currently assigned 50 percent rating. Turning to the evidence, the Veteran was afforded a VA examination in February 2018. The examiner characterized the Veteran's insomnia symptoms as resulting in occupational and social impairment with reduced reliability and productivity. With respect to relationships, the Veteran had reported that he was divorced and living with his dog which helped with his anxiety. Occupationally, the Veteran reported that his work history had not changed since his last examination in January 2016. Additionally, the Veteran reported that he had increased alcohol use since deployment in 2014 and he would drink to feel more relaxed. The Veteran's reported symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss such as forgetting names directions or recent events, 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, inability to establish and maintain effective relationships, suicidal ideation. Notably, the Veteran endorsed passive suicidal ideation with no plan or intent and anger issues. See February 2018 VA examination. Following the February 2018 examination, the Veteran attended several mental health assessments from September 2018 to February 2020. In a September 2018 mental health assessment, the Veteran reported excess worry, restlessness, fatigue, irritability, and hyperarousal. In a June 2019 mental health medication management, he reported that he was on a break from nursing school and noted that he was taking medication for test taking, to manage his anxiety, help with insomnia, and prevent panic attacks. During an October 2019 mental health assessment, the Veteran noted his chief complaint was issues with focusing. In a February 2020 mental health assessment, the Veteran reported frequent nightmares and intrusive thoughts. In a February 2020 suicide prevention note, the Veteran participated in the safety plan but did not think he was at risk. See January 2020 CAPRI pp. 13, 59,162; see also February 2020 CAPRI pp. 3, 7. The Veteran was afforded another VA examination in February 2020. The examiner characterized the Veteran's insomnia symptoms as resulting in occupational and social impairment with deficiencies in most areas such as work, school, family relations judgement thinking or mood. Occupationally, the Veteran reported he was having difficulty concentrating at work and school. He also noted low motivation and difficulty focusing. Additionally, he reported that he had stopped drinking after realizing it was too much. The Veteran's reported symptoms included anxiety, near continuous panic or depression affecting the ability to function independently appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a work like setting. See February 2020 VA examination. In considering the evidence of record and resolving all reasonable doubt in the favor of the Veteran, the Board concludes the evidence supports a 70 percent rating. The Veteran's insomnia symptoms included anxiety, near continuous panic or depression affecting the ability to function independently appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances including work or a work like setting. Additionally, in the February 2018 examination, the Veteran endorsed passive suicidal ideation with no plan or intent and anger issues. Further, in the Veteran's most recent examination, the examiner characterized the Veteran's insomnia symptoms as resulting in occupational and social impairment with deficiencies in most areas such as work, school, family relations judgement thinking or mood. However, the examinations and treatment records do not indicate that the Veteran's symptoms rise to the severity, frequency, and duration required of a 100 percent rating. For example, at no point in the claims file was evidence found of persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, nor was evidence of a similar type and degree of such symptoms found. Rather, the Veteran was working and attending school to obtain his associates degree in nursing during the appeal period. He was attempting to manage insomnia symptoms with medication. Further, the Veteran appeared clear, coherent, and unremarkable in both examinations of record. In sum, symptoms and functioning consistent with total occupational and social impairment have not been demonstrated. Accordingly, a 100 percent rating is not warranted. (CONTINUED ON NEXT PAGE) Therefore, the Board concludes that a 70 percent rating, but no higher, for insomnia starting February 2, 2018 is warranted. J. O'CONNELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Emily A. Kotroco 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.