Citation Nr: 21041912 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-42 027 DATE: July 10, 2021 ORDER Entitlement to an initial 50 percent rating from December 23, 2016 to January 10, 2019, for primary insomnia is granted. FINDINGS OF FACT 1. The record evidence shows that, prior to December 23, 2016, the Veteran's insomnia has been manifested by complaints of a depressed mood, anxiety, suspiciousness, and sleep impairment that is productive of no worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The record evidence shows that, from December 23, 2016 to January 10, 2019, the Veteran's insomnia has been manifested by complaints of a depressed mood, anxiety, suspiciousness, sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, that is productive of no worse than occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement, thinking and/or mood. 3. The record evidence shows that, beginning January 10, 2019, the Veteran's insomnia (now characterized as generalized anxiety disorder) has been manifested by no more than occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. CONCLUSIONS OF LAW The criteria for an initial 50 percent rating from December 23, 2016 to January 10, 2019, for insomnia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code (DC) 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1990 to June 2013. This appeal to the Board of Veterans' Appeals (Board) is from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019 the Board remanded the Veteran's higher initial rating claim for insomnia to the RO for additional development. The Board noted in this remand that the Veteran had filed a service connection claim for an acquired psychiatric disability and insomnia was noted as a symptom of this disability. Thus, the Board concluded that the higher initial rating claim for insomnia was inextricably intertwined with the service connection claim for an acquired psychiatric disability which was pending at that time. The Board directed that, on remand, the RO obtain updated treatment records for the Veteran and adjudicate her service connection claim for an acquired psychiatric disability which was pending at that time. Additional records subsequently were associated with the claims file. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In an August 2020 rating decision, the RO assigned a higher initial 30 percent rating effective July 1, 2013, for the service-connected primary insomnia. The RO also granted service connection for generalized anxiety disorder (which was characterized as generalized anxiety disorder (previously characterized as primary insomnia) and assigned a 70 percent rating effective January 10, 2019. The RO noted that it had recharacterized the Veteran's service-connected primary insomnia as generalized anxiety disorder effective January 10, 2019. Because the initial ratings assigned to the Veteran's service-connected primary insomnia (prior to January 10, 2019) and generalized anxiety disorder (effective January 10, 2019), are not the maximum ratings available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Following the August 2020 rating decision, the Board has recharacterized the issue on appeal and will consider whether a higher initial rating is warranted during any of the 3 time periods on appeal. See also Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial rating greater than 30 percent prior to January 10, 2019, for insomnia The Veteran contends that she is entitled to a higher initial rating for insomnia prior to January 10, 2019, when the RO recharacterized this disability as generalized anxiety disorder and assigned an initial 70 percent rating. Her insomnia is rated by analogy under Diagnostic Code (DC) 9433 throughout the appeal period. See 38 C.F.R. § 4.130, DC 9433. She was afforded a VA examination for her mental disorders in June 2013. At that examination, the examiner diagnosed the Veteran with primary insomnia as her only diagnosed mental health disorder. The examiner found that the Veteran's mental condition had been formally diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The Veteran denied having ever received any mental health treatment and denied having problems with depression, anxiety and nightmares. She did have significant difficulty sleeping beginning in 2009. She reported she had tried multiple medications and nothing had worked and she was currently taking no medication for insomnia. She only reported the symptom of chronic sleep impairment. The Veteran was afforded another VA examination for her mental health disorders in November 2015. She reported that she may sleep for several hours and then always awakens and gets no more than three hours of sleep ap night even though she takes temazepam. She tried numerous medications and none have helped anymore than what she is currently taking. The sleep disturbance causes clinically significant distress and impairments in social and currently educational functioning at college. She stated that her sleep difficulty occurred every night of the week and has continued since 2005 when it started. The sleep difficulty occurred despite adequate opportunity for sleep and the practice of good sleep hygiene. The examiner found that the insomnia was unexplained but that she did not apparently suffer from sleep apnea. The examiner found there was no coexisting mental health disorder that was believed to be causing the insomnia. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily with routine behavior, self-care and conversation. The Veteran reported that she does not ever feel 100 percent. She finds herself drifting when sitting with her husband, and when she's watching a movie she spends her time thinking about sleeping. She is quick to get irritated and never sleeps through the night. During the day she wants to doze off and she wakes up after 10-15 minutes. She feels angry she cannot sleep. She reported being in a fog, in a haze and struggling to function at work. The Veteran reported symptoms of depressed mood, anxiety, chronic sleep impairment and mild memory loss. The examiner noted that the severity of the disorder was greater than was indicated by the prior examination and it was the examiner's opinion that the prior examination underestimated the severity of the sleep meds. The sleep disturbances caused clinically significant distress and impairments in social and education functioning at college. The Veteran was also afforded a VA examination in December 2016. At that examination she was noted as only having a diagnosis of insomnia, and no other mental health disorder diagnosed. She experienced occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgement thinking and/or mood. She noted that due to her symptoms she has become very avoidant of others and most social situations. She reported that she worked one year ago, in 2015, at a retail store, but that she quit after four weeks after not being able to tolerate the exhaustion and fatigue on the job and she has not worked since. She was under active VA care and was prescribed Trazodone and Hydroxyzine at the time. She noted that without the medications she was unable to fall asleep at all. She reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, 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 worklike setting and obsessional rituals which interfere with routine activities. The examiner noted that the Veteran's insomnia and related difficulties appeared much worse since the last examination. The Veteran was afforded another VA examination in June 2017. She reported that she had been diagnosed with generalized anxiety disorder with panic attacks. The examiner noted that the Veteran did not have more than one mental disorder diagnosed. The examiner also noted that the Veteran had occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care and conversation. The Veteran reported that she has had insomnia for 7-8 years and that she rarely gets more than 2-3 hours of sleep a night. She stated she can go to sleep, but has a hard time staying asleep and when she doubles the dosage of her medication she has a hard time waking up early. She does not drink caffeine, drink, smoke or take drugs. She is very sleepy during the day but does not nap. She has panic attacks due to her lack of sleep, and that some have happened while she's driving. She has been married for the last 18 years and that her husband is wonderful. She has two children and that she has friends, but they are all in the military. She goes to sports activities with her acquaintances, goes to church and goes to visit her family. She does not see a psychiatrist and does not take any mental health medications. The Veteran reported symptoms of anxiety, suspiciousness, panic attacks more than once a week, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances and obsessive rituals which interfere with routine activities. She was on time for her appointment. She was neat, clean and appropriately dressed for the weather and circumstances. The Veteran's insight and judgment was good. Her mood was guarded and anxious and her affect was noncongruently euthymic. She reported having panic attacks 2-3 days a week. She described these panic attacks as getting shaky and sweaty. Her breathing was shallow and it was embarrassing for her, as she felt she was not in control. The panic attacks lasted on average one hour to an hour and a half. She would wipe down her counters about 100 times a day and cleaned the house a least twice a day. She did not let her children or husband clean as she needed to have control over it and she is not able to hide the chaos inside of her very well. Therefore, she reported she did not visit family as frequently. Based upon the evidence of record, the Board finds that, prior to December 23, 2016, the Veteran's service-connected insomnia does not meet or approximate the criteria for an initial rating greater than 30 percent. Specifically, upon examination in June 2013 and November 2015, the only reported symptoms were chronic sleep impairment, anxiety, depressed mood and mild memory loss. A higher initial rating of 50 percent is not warranted prior to December 23, 2016, for service-connected insomnia because there is no evidence that this disability produces occupational and social impairment with reduced reliability due to her symptoms. Even with the additional symptoms noted on this examination, there is no evidence they produce the type of occupational and social impairment contemplated in a higher rating. The Veteran's social functioning was not impaired as she enjoyed good relationships with family and friends. Thus, a higher initial rating is not warranted prior to December 23, 2016, for the service-connected insomnia. In contrast, from December 23, 2016 to January 10, 2019, the Board finds that the evidence demonstrates the Veteran's service-connected insomnia warrants an initial 50 percent rating. Specifically, in the December 2016 and June 2017 VA examination reports, she had occupational and social impairment with reduced reliability due to her symptoms. She reported panic attacks occurring frequently, impairment of memory and difficulty in establishing and maintaining effective work and social relationships. These examination reports do not show occupational and social impairment with deficiencies in most areas from December 23, 2016, to January 10, 2019. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial 50 percent rating from December 23, 2016, to January 10, 2019, for insomnia have been met. 2. Entitlement to an initial rating greater than 70 percent effective January 10, 2019, for anxiety disorder As noted in the Introduction, in an August 2020 rating decision, the RO recharacterized the service-connected insomnia as service-connected generalized anxiety disorder and assigned an initial 70 percent rating effective January 10, 2019. As also noted in the Introduction, the Veteran essentially appeals for a higher initial rating than 70 percent effective January 10, 2019, for her service-connected anxiety disorder. On VA examination on January 10, 2019, the examiner noted the diagnosis of generalized anxiety disorder and noted that this is the only mental health disorder diagnosed. The examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that she is getting "less social." She reported she is avoiding people, and that she doesn't want other to approach her or converse with her. She said she is used to being very social and is concerned about these changes. She claims she is uncomfortable in these situations due to lack of control of her environment and states she hasn't seen her family since June of 2018. She noted going to church every now and then, but noted she is not involved in Veterans groups or community groups. She had a part time job at a perfume bar for around a year. She saw a psychologist to determine if sleep issues were caused by anxiety and then noted she stopped going because she didn't feel he was helpful. She has not taken any medication for the past year and a half. She is always thinking and cant sleep because she cannot shut off her brain. She reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective wok and social relationships and difficulty adapting to stressful circumstances including work or work like settings. She also reported obsessive rituals which interfered with routine activities. She described ongoing experiencing of daily anxiety, panic attacks multiple times weekly, inability to sleep throughout the night, worries about all areas of life stress to a catastrophic level, depressive feelings and thoughts of self as "weak" due to her struggles, increasing struggles with work and social functioning -particularly increased avoidance spending very little time with others in order to keep her struggles hidden. She described a very strong reaction to feeling as if she is not in "control" and has rituals/behaviors aimed at managing anxiety through exerting control on her environment. As it pertains to the Veteran's psychiatric symptoms effective from January 10, 2019, the Board finds that an initial rating greater than 70 percent is not warranted. Specifically, the evidence establishes that, since January 10, 2019, the Veteran's psychiatric disorder was manifested by the following symptoms: depressed mood, anxiety, suspiciousness, hypervigilance, panic attacks more than once per week, chronic sleep impairment, impairment of short and long term memory, trouble concentrating, flattened affect, impaired judgement, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a worklike setting. The Board notes that the Veteran's psychiatric disability has not more nearly approximated total occupational and social impairment since January 10, 2019. She has not exhibited many of the symptoms specifically contemplated by the higher rating including gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. In this regard, the Board notes that, since January 10, 2019, medical records specifically noted the Veteran presented with good grooming and hygiene including the January 2019 VA examination. Additionally, the Veteran's outpatient treatment records dated since January 2019 do not show any reported regular suicidal ideation or homicidal ideation. Although the Board does not diminish the significance of the Veteran's symptoms, the evidence does not demonstrate total occupational and social impairment since January 10, 2019. In this regard, the Board finds that effective January 10, 2019, the Veteran's psychiatric disorder more nearly approximated occupational and social impairment with deficiencies in most areas. She otherwise has not identified or submitted any evidence demonstrating her entitlement to an initial rating greater than 70 percent effective January 10, 2019, for her service-connected anxiety disorder. In summary, the Board finds that the preponderance of the evidence is against assigning an initial rating greater than 70 percent effective January 10, 2019, for anxiety disorder. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.