Citation Nr: A25035394 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240703-452725 DATE: April 16, 2025 ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for insomnia, is granted. FINDING OF FACT For the entire period on appeal, the Veteran's insomnia was manifested by, at worst, occupational and social impairment with reduced reliability and productivity due to symptoms such as sleep disturbance and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent, but no higher, for insomnia, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9499-9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2012 to January 2013, with additional service in the National Guard. In the July 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the August 2023 agency of original jurisdiction (AOJ) supplemental claim decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the supplemental claim decision on appeal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The August 2023 supplemental claim decision found that new and relevant evidence had been received, and that the claim would be readjudicated. The Board finds this to be an inherent favorable finding by the AOJ and will proceed with adjudication on the merits. Finally, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when such is raised by the record. However, the Veteran has not contended, and the evidence does not otherwise suggest, that his service-connected disabilities preclude him from securing and following substantially gainful employment. The May 2023 statement from the Veteran indicated that he had been working full-time for the past 5 years as a customer service representative; there is no indication that this is a protected environment. LaBruzza/McBride v. McDonough, 37 Vet. App. 111 (2024). Thus, a TDIU claim has not been raised, and no action under Rice is necessary. See also Doucette v. Shulkin, 28 Vet. App. 366 (2017). Increased Ratings Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When adjudicating psychiatric claims, the Board has an obligation to conduct a three-part "holistic" analysis: 1) assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's disability; 2) quantify "the level of occupational and social impairment caused by those signs and symptoms;" and 3) assign an "evaluation that most closely approximates that level of occupational and social impairment." See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013). The listed symptoms are not exhaustive but "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The Veteran's insomnia is rated under Diagnostic Code 9499-9410, which is subsumed into the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a noncompensable (0 percent) disability rating is assigned when a mental condition has been formally diagnosed, but the symptoms are not severe enough to either interfere with occupational and social functioning or require continuous medication. A 10 percent disability 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 the symptoms are controlled by continuous medication. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 38 C.F.R. § 4.130, Diagnostic Code 9410. A 50 percent rating is assigned when the evidence shows 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. Id. A 70 percent rating is assigned for 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); inability to establish and maintain effective relationships. A 100 percent rating is assigned 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name. The Veteran contends that a 50 percent rating is warranted from September 12, 2022, the date service connection was granted for insomnia. The Board acknowledges that continuous pursuit has been established as the Veteran's May 2023 supplemental claim was filed within 1 year of the rating decision that granted service connection for insomnia. Accordingly, the Board will address the propriety of the rating assigned for both stages of the period on appeal. Fenderson, supra. Entitlement to an initial compensable disability rating prior to August 4, 2023. Entitlement to greater than a 30 percent rating for insomnia beginning August 4, 2023. At a September 2022 VA examination, the Veteran reported that he remained married and reports that the marriage is going well. He also reported that he had adequate social functioning; the only symptom noted by the examiner was chronic sleep impairment. The examiner ultimately concluded that the Veteran's insomnia severity was consistent with a noncompensable (0 percent) rating, in that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In a September 2022 lay statement, the Veteran reported that his insomnia caused sleep problems, which then result in him being tired, having bad moods, being unable to work at his full potential, and memory loss in the sense that he "[has] a hard time remembering things." The Veteran submitted a report from a May 9, 2023, private evaluation, at which time the clinician found that the severity of the Veteran's symptomatology and the degree of his occupational and social impairment was manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as chronic sleep disturbance, disturbances of motivation and mood and impairment of short- and long-term memory. The Veteran's symptomatology as of the date of the private examination included depressed mood, anxiety, panic attacks weekly, chronic sleep impairment, impairment of short and long term memory, disturbances of motivation and mood, sexual difficulties, and social withdrawal. The clinician indicated that these symptoms warranted a 50 percent disability rating. See May 2023 private evaluation. In a May 10, 2023, statement, the Veteran reported that he had been employed as a full-time customer service representative for 5 years. He had not reported to work twice in the past month due to his mental health condition. He reported lack of focus and resulting decline in work performance. Although he had been married 17 years, his mental health condition caused significant strain in this relationship because of his being withdrawn, having angry outbursts and arguments, and experiencing intimacy issues. Anxiety, of particular note, resulted in shortness of breath and chest pain, as well as feelings of panic and confusion. He reported problems with memory of events and pending tasks, as well as sleep impairment that results in irritability and lack of concentration the next day. At the August 2023 VA examination, in which the examiner confirmed a diagnosis of insomnia, occupational and social impairment was noted with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner discussed the Veteran's mental health history in detail. The Veteran reported no use of medication; his symptoms included depressed mood, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, and disturbances of motivation and mood. The Veteran denied suicidal and homicidal ideation, plan, or intent. The examiner noted that the Veteran's self-reported symptoms included difficulty in falling asleep, lack of interest in activities, social avoidance, and depressed affect. Of particular note, neither the Veteran's September 2022 VA Form 21-526EZ nor his May 2023 VA Form 20-0995 identified any relevant VA treatment records or specific VA facilities at which he was treated. The VA outpatient records associated with the claims file are dated between 2013 and 2015 and thus not relevant to the period on appeal, which begins in 2022. Finally, the record does not show that the Veteran submitted private treatment records (other than the May 2023 private evaluation discussed above), or submitted a VA Form 21-4142 to authorize VA to obtain any relevant private records. Based on the evidence as a whole, the Board finds that a 50 percent initial rating is warranted for the entire period on appeal. While noting that the Veteran's two lay statements tend to suggest different levels of severity of his symptoms, the fact remains that one appears to provide more detail into the symptoms and how they affect social and occupational functioning. Moreover, these statements are dated only 8 months apart, and taken together, tend to suggest that the degree of impairment was the same for the entire period on appeal. Fenderson, supra. While mindful of the September 2022 VA examiner's findings as equivalent to a noncompensable rating, the Board is convinced that the Veteran's primary symptom of sleep impairment - indeed, which is his actual diagnosis - does in fact "interfere with occupational and social functioning" in the ways he has described, rendering the noncompensable rating invalid. Moreover, although the Veteran's May 2023 statement does not use the phrase "panic attack," he describes symptoms that would suggest that he has experienced such episodes. He has also described memory problems and conflict in his marriage that more closely contemplate the criteria for a 50 percent rating. 38 C.F.R. § 4.7. Accordingly, the Board finds that the criteria for a 50 percent rating are met for the entire period on appeal. Accordingly, a 50 percent rating, but no higher, for insomnia for the entire period on appeal is warranted. To that extent only, the appeal is granted. (Continued on the next page) ? The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, because the evidence of record persuasively weighs against higher ratings beyond that awarded by this decision.? 38?U.S.C. §?5107 (b); 38 C.F.R. §§?4.3, 4.7. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carson, M. 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.