Citation Nr: A25041260 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 240923-490891 DATE: May 6, 2025 ORDER Entitlement to a separate disability rating for insomnia disorder is granted. REMANDED Entitlement to a compensable disability rating for insomnia disorder is remanded. INTRODUCTION The Veteran served on active duty in the U.S. Army from August 1968 to August 1970. In June 2024, the Regional Office (RO) issued a rating decision which addressed the above-noted issue. Thereafter, in September 2024, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), wherein he sought to appeal the claim in the Appeals Modernization Act (AMA) System. He selected the Direct Review option; therefore, the Board may only consider the evidence of record at the time the RO issued the June 2024 rating decision. 38 C.F.R. § 20.301. However, because the Board is remanding the above-referenced claim, any evidence the Board could not consider will be considered by the RO in the readjudication of the claim. 38 C.F.R. § 3.103 (c)(2)(ii). FINDING OF FACT The Veteran is diagnosed with an insomnia disorder which meets the DSM-5 diagnostic criteria. CONCLUSION OF LAW The criteria for entitlement to a separate disability rating for insomnia have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION By way of a brief background, in a June 2024 decision the Board granted entitlement to service connection for an insomnia disorder. In a rating decision issued the same month, the RO effectuated the Board's grant of service connection. However, the RO concluded "VA regulations do not allow a [sic] insomnia as a separate evaluation if the cause of the disorder is secondary to another service connected condition." As such, the RO evaluated the Veteran's insomnia disorder with his service-connected tinnitus, the primary condition which caused the Veteran's insomnia disorder. The Veteran contends a separate compensable disability rating is warranted for his insomnia disorder. In this respect, the Board notes the RO was not citing to VA regulations for this proposition as alleged, but was actually referencing portions of M21-1 Adjudication Procedure Manual. In particular, the RO was referring to Part V, Subpart iii, Chapter 13, Section 1, Subsection l. In Overton v. Wilkie, the Court determined the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). Here, the Board notes the provision referenced by the RO indicates that at times, insomnia is a symptom of other disabilities, which should not be separately evaluated, but rather considered in the evaluation of the primary disorder. However, this provision also specifically states insomnia can-and the Board finds should-be assigned a separate disability rating regardless of the underlying etiology, if there is a current diagnosis of insomnia disorder meeting the DSM-5 diagnostic criteria. The Board will not assess the propriety of the other portions of this manual provision, as such consideration is not required. Given this provision specifically instructed the RO that a separate evaluation was to be assigned for an insomnia disorder meeting the DSM-5 criteria-which is the case here-the RO committed a pre-decisional due process violation in failing to separately evaluate the Veteran's disability. In this case, the Veteran's insomnia disorder clearly causes additional disability beyond the ringing in his ears caused by his tinnitus. Accordingly, the Board finds this disability should be assigned a separate rating under an appropriate diagnostic code. REASONS FOR REMAND Here, the Board finds a separate disability evaluation assessment was required by the RO in the first instance as a matter of law. In order to preserve the Veteran's due process rights, and to provide him "two bites of the apple," this matter must be remanded for a determination by the RO. Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, this matter must be remanded. (Continued on the next page) ? This matter is REMANDED for the following action: The RO must initiate any indicated development, and then readjudicate this matter to assign a separate disability rating for the Veteran's insomnia disorder. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Fraser, Gordon 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.