Citation Nr: A25035004 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240810-462357 DATE: April 16, 2025 REMANDED Entitlement to an evaluation in excess of 30 percent disabling for insomnia disorder (claimed as anxiety condition with trouble falling and staying asleep and depression) is remanded. Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran had honorable active-duty service with the United States Army from February 2007 to February 2012. Pursuant to July 2024 rating decision, the Veteran's increased rating claim was denied. The Veteran timely appealed the above referenced rating decision to the Board via VA Form 10182 Notice of Disagreement, dated August 2024, and requested direct review of the evidence considered by the Board of Veterans' Appeals. The Board notes that the issue of entitlement to unemployability due to the service-connected issue presently on appeal was raised in an August 2024 statement. A claim of entitlement to TDIU is part and parcel of an underlying increased rating claim, when raised during the open appeal period. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board will consider the issue of TDIU benefits. Regrettably, the Board finds that a pre-decisional duty to assist error has occurred. Therefore, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). Entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. See below Entitlement to an evaluation in excess of 30 percent disabling for insomnia disorder (claimed as anxiety condition with trouble falling and staying asleep and depression) is remanded. Although the further delay entailed by remand is regrettable, current adjudication of the Veteran's claims would be premature. Undertaking additional development prior to a Board decision is the only way to ensure compliance with the duty to assist, as required. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). The Veteran contends that a higher evaluation is warranted for his service-connected insomnia disorder (claimed as anxiety condition with trouble falling and staying asleep and depression). Review of the record indicates that the Veteran has continued to seek mental health treatment. VA treatment records document complaints of worsening symptoms to include struggles with substance abuse. In October 2021, an emergency department record indicates that the Veteran was found unresponsive. Narcan was used to revive him. A physical examination revealed an altered mental status. A history of opioid addiction with recent use of Fentanyl was noted. Thereafter, the Veteran was evaluated for inpatient rehabilitative and mental health treatment on multiple occasions. His housing situation was described as unstable. In April 2024, a mental health treatment evaluation indicated that the Veteran appeared ill at ease, agitated and was deemed a poor historian. At that time, he was receiving in-patient rehabilitation treatment for Fentanyl and methamphetamine abuse. Prescribed medications included Suboxone. During the clinical interview, it was noted that the Veteran had a lengthy battle with depressive symptoms and anxiety described as chronic and severe. To date, symptom remission had not been achieved. Other related symptomology included panic episodes. A number of treatment modalities had been previously used to manage the Veteran's symptoms; however, his drug addiction was deemed most urgent at that that time. The Veteran also endorsed a chronic sleep impairment with an inability to fall asleep or stay asleep. He averaged 3-4 hours of sleep per night. Trazadone was prescribed to treat his condition. In April 2024, a VA examination was conducted. Current diagnoses included recurrent moderate major depressive disorder with distress, insomnia disorder, and anxiety and depression (which were described as subsumed). The examiner failed to mention or discuss the Veteran's struggles with substance abuse. Current symptoms included a depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, and an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. Significant symptom overlap was noted between the Veteran's identified mental health disorder. Occupational and social impairment was associated with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Behavioral observations indicate that the Veteran was well groomed, cooperative, and oriented with a congruent affect and normal responsiveness. His memory, insight, and judgement appeared adequate. The examiner noted that the Veteran meets the DSM-5 criteria for major depressive disorder, recurrent, moderate, with anxious distress which is comorbid with the insomnia and neither diagnosis is secondary to the other. In August 2024, Counsel submitted additional arguments in support of the Veteran's claim. Therein, it was noted that the Veteran had been receiving in-patient rehabilitative treatment for co-morbidities for some time, to include substance abuse. A history of unstable housing was also noted. Despite the above, the VA examiner failed to fully address the Veteran's comorbidities or possible worsening of his service-connected psychiatric conditions. Further, the Veteran has been involved in VA's Veteran Readiness and Employment (VOCREHAB) Program. Given the above, consideration should be given to whether the Veteran's current symptoms impair his ability to secure and an maintain a substantially gainful occupation (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009). Similarly, Counsel contends that that Veteran's claim warrants referral for extraschedular consideration via an administrative determination by the Director of Compensation. See 38 CFR 4.16 (b). Under the modernized review system, the reasons for remand by the Board are limited to correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim. 38 C.F.R. § 20.802 (a). On review of the record, the Board finds that the April 2024 VA opinion was inadequate for adjudication purposes and a remand is required to correct a pre-decisional duty to assist error. Of note, the VA examiner failed to mention or consider the Veteran's history of comorbidities and inpatient treatment as suggestive of worsening symptoms associated with his service-connected psychiatric conditions, to include substance abuse. Similarly, due to his documented history of inpatient rehabilitative treatment, unstable housing, and participation in VOCREHAB program, the Board concedes that consideration for a possible TDIU and/or referral for extraschedular consideration via an administrative determination by the Director of Compensation is also warranted. Given the above, a new VA examination is required. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected insomnia disorder (claimed as anxiety condition with trouble falling and staying asleep and depression). The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner must also discuss the functional effects of the Veteran's service-connected insomnia disorder (claimed as anxiety condition with trouble falling and staying asleep and depression), and any related residual conditions. As a part of the examination and/or opinion, the examiner must consider all medical evidence to include the Veteran's lay statements. In reevaluating the Veteran's claim, the examiner's attention is called to lay contentions that the current severity of the Veteran's symptoms warrant consideration for extraschedular evaluation and therefore, a referral to Director of Compensation Service is appropriate. Attention is also called to lay contentions that the severity of the Veteran's service-connected psychiatric symptoms with related comorbidities warrant consideration for a whether his condition has rendered him unable to secure and maintain a substantially gainful occupation. Any opinion offered must be accompanied by a complete rationale, to include consideration of all medical evidence and lay statements. If any requested opinion cannot be offered without resorting to speculation, the examiner should indicate such in the examination report and explain why a non-speculative opinion cannot be offered. The examiner should also identify what, if any, additional information or evidence would allow for a more definitive opinion. 2. Thereafter, the readjudicate the Veteran's claim. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Whitaker, Nakiya E. 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.