Case 23042968

JOSHUA CASTILLO · 2023 · Case ID: 23042968

MIXED

Summary

The veteran, who served in the United States Coast Guard from August 1970 to September 1974, appeals the denial of earlier effective dates for several granted benefits and the denial of increased ratings for migraine headaches and insomnia disorder. The Board granted service connection for migraine headaches at 50% and insomnia disorder at 70% throughout the appeal period. Additionally, the Board granted Total Disability based on Individual Unemployability (TDIU) for insomnia disorder effective May 26, 2016, and granted Dependents' Educational Assistance (DEA) benefits effective May 26, 2016. The Board denied earlier effective dates for migraine headaches and insomnia disorder, finding no entitlement prior to May 26, 2016, the date of the veteran's intent to file. The claim for an earlier effective date for a 10% rating for bilateral hearing loss was also denied, as the record lacked evidence of a factually ascertainable increase in disability within the year prior to the claim. The Board remanded claims for increased ratings for bilateral hearing loss, insomnia disorder, and vertigo, requiring updated VA treatment records and contemporaneous examinations to determine current severity and functional impact.

Rationale

Migraines rated under Diagnostic Code 8100.; Criteria for 50% rating met with frequent, prostrating attacks.; Benefit of the doubt applied to grant the 50% rating.

Service Branch

COAST GUARD

Special Benefit

TDIU

Diagnostic Code

8100

Docket No.

18-49 381

Full Decision Text

Citation Nr: 23042968
Decision Date: 08/04/23 Archive Date: 08/04/23

DOCKET NO. 18-49 381
DATE: August 4, 2023

ORDER

Entitlement to an effective date earlier than May 26, 2016, for the award of service connection for migraine headaches is denied.

Entitlement to an effective date earlier than May 26, 2016, for the award of service connection for insomnia disorder with unspecified trauma and stressor related disorder (hereinafter referred to as insomnia disorder) is denied.

Entitlement to an effective date earlier than May 26, 2016, for the award of an increased 10 percent rating for bilateral hearing loss is denied.

Entitlement to an initial rating of 50 percent for migraine headaches is granted throughout the appeal period.

Entitlement to an initial 70 rating for an insomnia disorder is granted throughout the appeal period.

Entitlement to a total disability rating based on individual unemployability (TDIU) due to the Veteran's service-connected insomnia disorder alone, effective May 26, 2016, is granted.

Entitlement to Dependents' Educational Assistance (DEA) benefits under Chapter 35, Title 38, effective May 26, 2016, is granted.

REMANDED

Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded.

Entitlement to an initial rating in excess of 70 percent for insomnia disorder is remanded.

Entitlement to an initial rating in excess of 30 percent for vertigo is remanded.

FINDINGS OF FACT

1. There is no evidence of any unadjudicated informal claim or formal claim of entitlement to service connection for migraine headaches or an insomnia disorder prior to May 26, 2016.

2. The Veteran's bilateral hearing loss did not manifest as a 10 percent disability until May 26, 2016.

3. Throughout the appeal period, the Veteran's migraine headaches have approximated frequently completely prostrating and prolonged attacks productive of severe economic inadaptability.

4. Throughout the appeal period, the Veteran's insomnia disorder has been productive of at least occupational and social impairment with deficiencies in most areas.

5. The Veteran's service-connected insomnia disorder alone precludes him from securing or following a substantially gainful occupation since May 26, 2016.

6. Based on the award of TDIU herein, the Veteran met the basic eligibility requirements for Chapter 35 benefits since May 26, 2016.

CONCLUSIONS OF LAW

1. The criteria for an effective date earlier than May 26, 2016, for the award of service connection for migraine headaches have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.151, 3.155, 3.400.

2. The criteria for an effective date earlier than May 26, 2016, for the award of service connection for an insomnia disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.114, 3.151, 3.155, 3.400.

3. The criteria for an effective date earlier than May 26, 2016, for the award of an increased 10 percent rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.85, 4.86, Diagnostic Code 6100.

4. The criteria for a 50 percent rating for migraine headaches are met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8100.

5. The criteria for at least 20 an initial 70 percent rating for insomnia disorder throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9400.

6. The criteria for a grant of TDIU due to the Veteran's insomnia disorder alone, effective May 26, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16
8100.

6. The criteria for a grant of TDIU due to the Veteran's insomnia disorder alone, effective May 26, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

7. The criteria for entitlement to DEA benefits, effective May 26, 2016, have been met. 38 U.S.C. §§ 3500, 3501, 5102, 5107; 38 C.F.R. §§ 3.807, 21.3020, 21.3021.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Coast Guard from August 1970 to September 1974.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

During the pendency of the appeal, a March 2018 rating decision granted an initial increased (70 percent) rating for the Veteran's service-connected insomnia disorder, effective January 19, 2018. A September 2018 granted an earlier effective date of November 20, 2017, for the award of an initial 70 percent rating for the Veteran's insomnia disorder. The issue has been characterized to reflect the rating before and after November 20, 2017. See AB v. Brown, 6 Vet. App. 35 (1995).

In addition, during the pendency of the appeal, a September 2018 rating decision granted TDIU, effective November 20, 2017. The matter of entitlement to TDIU prior to November 20, 2017, remains before the Board, and is characterized accordingly. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018).

The Veteran testified before the undersigned Acting Veterans Law Judge in an August 2022 virtual hearing.

The Board acknowledges the Veteran has a separate appeal under the Appeals Modernization Act (AMA) for special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114(s) prior to November 20, 2017. The appeal of that issue will be the subject of a separate Board decision.

Effective Date

1. Entitlement to an effective date earlier than May 26, 2016, for the award of service connection for migraine headaches.

2. Entitlement to an effective date earlier than May 26, 2016, for the award of service connection for insomnia disorder.

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

The Veteran filed an intent to file a claim on May 26, 2016. See June 2016 RO Letter (expressing receipt of the Veteran's intent to file a claim on May 26, 2016). In July 2016, the Veteran filed a formal claim seeking service connection for headaches and an insomnia disorder. See July 2016 VA Form 21-526EZ. In a December 2016 rating decision, the RO awarded service connection for migraine headaches and insomnia disorder, and assigned an effective date of May 26, 2016.

There is no document of record that can be construed as a formal or informal claim for service connection for migraine headaches or an insomnia disorder prior to May 26, 2016. In addition, the Veteran has presented no theory or argument why he is entitled to an effective date earlier than May 26, 2016, for the award of service connection for migraine headaches or an insomnia disorder. Thus, May 26, 2016, is the earliest possible effective date. See 38 U.S.C. § 5110(a); 38 C.F.R. §
6 rating decision, the RO awarded service connection for migraine headaches and insomnia disorder, and assigned an effective date of May 26, 2016.

3. Entitlement to an effective date earlier than May 26, 2016, for the award of an increased 10 percent rating for bilateral hearing loss.

The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). Generally, the effective date of an award of increased compensation "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1).

An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98 (1998).

The VA Schedule for Rating Disabilities (Rating Schedule) provides a table for rating purposes (Table VI) to determine a Roman numeral designation (I through XI) for hearing impairment, based on testing (by a state-licensed audiologist) including Puretone thresholds and speech discrimination (Maryland CNC test). See 38 C.F.R. § 4.85. Table VII is used to determine the rating assigned by combining the Roman numeral designations for hearing impairment in each ear. Ratings for hearing impairment are derived by the mechanical application of the Rating Schedule to the numeric designations assigned after audiometry evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992).

By way of background, a May 1975 rating decision granted service connection for right ear hearing loss, rated 0 percent disabling, effective September 12, 1974. A November 2013 rating decision granted service connection for left ear hearing loss, rated 0 percent disabling, effective December 6, 2012.

The Veteran submitted his intent to file a claim on May 26, 2016, and a formal claim for a compensable rating for bilateral hearing loss in July 2016. The question here is whether the record establishes a factually ascertainable date that an increase in the Veteran's disability occurred within the year prior to May 26, 2016.

The RO assigned a 10 percent rating based on the date he filed an intent to file a claim.

The Veteran has not asserted a specific date of entitlement for the effective date
12, 1974. A November 2013 rating decision granted service connection for left ear hearing loss, rated 0 percent disabling, effective December 6, 2012.

The RO assigned a 10 percent rating based on the date he filed an intent to file a claim.

The Veteran has not asserted a specific date of entitlement for the effective date of the increased 10 percent rating. Upon review of the record, the Board finds that the record for the period from May 26, 2015 (one year prior to the May 26, 2016, claim) to May 26, 2016 (the effective date for the assignment of the 10 percent rating), is void of any evidence reflecting the severity of the Veteran's bilateral hearing loss, much less reflecting an increase or complaint of an increase in his bilateral hearing loss so as to warrant an increased 10 percent rating. The Veteran was afforded a VA examination in November 2016 that was the basis of the award of 10 percent for his bilateral hearing loss. The Veteran's treatment records during the one-year period prior to the May 26, 2016, claim did not show or reflect the criteria under the diagnostic criteria for hearing impairment consistent with a 10 percent rating. Upon review of the record, there is no document prior to May 26, 2016, that would make it factually ascertainable that the Veteran's bilateral hearing loss warranted a 10 percent rating.

Accordingly, the claim for an effective date earlier than May 26, 2016, for a 10 percent rating for bilateral hearing loss is denied.

Increased Rating

4. Entitlement to an initial rating in excess of 30 percent for migraine headaches.

The Veteran's migraines are rated pursuant to Diagnostic Code 8100. 38 C.F.R. § 4.124a. Under Diagnostic Code 8100, a 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on average once a month over the last several months. A maximum 50 percent disability rating is warranted for migraines with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100.

The Board notes that the criteria for the progressively increasing ratings for migraines are successive in nature, i.e., each level of increase in the rating requires additional criteria which must be met to warrant the increase in rating. See Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018); see also Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007).

The rating criteria do not define "prostrating." By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), page 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." The Court has defined "prostrating" as meaning "lacking in vitality or will: powerless to rise: laid low." Johnson, 30 Vet. App. at 252 (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIGED 1822 (1966)); see also Holmes v. Wilkie, 33 Vet. App. 67, 70 (2020).

Nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440, 446 (2004). "Productive of severe economic inadaptability" means either producing or capable of producing severe economic inadaptability. Johnson, 30 Vet. App. at 253; Holmes, 33 Vet. App. at 70.

Additionally, the Court has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As Diagnostic Code 8100 does not contemplate the effects of medication in alleviating the frequency and duration of the Veteran's migraines, the Board is precluded from considering the relief afforded by the Veteran's medication, if any, in evaluating the severity of her disability. Id.

The Veteran is currently assigned a 30 percent rating for migraine headaches effective from May 26, 2016. See December 2016 rating decision.

Upon consideration of the evidence of record, and without considering the ameliorative effects of any medication, the Board finds that the Veteran's migraines have more nearly approximated the criteria for an initial 50 percent rating throughout the appeal period. The Veteran has consistently reported experiencing headaches several times per month, the less severe being several times per week, as well as sensitivity to light and sound, nausea and changes in vision (described as visual flashes of light). See October 2016 VA headaches examination; see also August 2022 Board hearing. The Veteran has testified that the most severe headaches last up to 24 hours, but even the less severe headaches last for four to five hours. The Board does not question the credibility of the Veteran's accounts as to the frequency of his headaches, or that they are completely prostrating.

Resolving reasonable doubt in the Veteran's favor, his migraines are more aptly contemplated by the criteria for a 50 percent rating throughout the appeal period, which is the highest schedular rating available under Diagnostic Code 8100. Holmes v. Wilkie, 33 Vet. App. 67 (2020).

The Board is precluded from considering any other Diagnostic Code to evaluate the Veteran's migraine headaches. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it).

5. Entitlement to an initial compensable rating for insomnia disorder with unspecified trauma and stressor related disorder prior to November 20, 2017.

The Veteran's insomnia disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9400 (the General Rating Formula for Mental Disorders (General Formula)), which provides for which provides for a 10 percent rating when the evidence shows occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication.

A 30 percent rating is warranted when the evidence shows 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, mild memory loss (such as forgetting names, directions, recent events). Id.

A 50 percent rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted when the evidence shows 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
.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id.

A 70 percent rating is warranted when the evidence shows 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 worklike setting); and inability to establish and maintain effective relationships. Id.

A maximum 100 percent rating is warranted when the evidence shows 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; memory loss for names of close relatives, own occupation, or own name. Id.

Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The use of the term "such symptoms as" in 38 C.F.R. § 4.130 indicates that the list of symptoms that follows is non-exhaustive, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio, 713 F.3d at 118.

The Veteran's insomnia disorder is currently rated noncompensable prior to November 20, 2017, and 70 percent since that date.

After a review of the evidence of record, the Board finds that the Veteran is entitled to at least an initial 70 percent rating throughout the appeal period. The Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead, 29 Vet. App. at 19-20 (stating the language of 38 C.F.R. § 3.13" indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). While the Veteran has denied suicidal ideation, plan or intent during the appeal period, the evidence of record also includes a November 2017 VA treatment record noting his feeling of hopelessness about the present or future. In addition, on February 2018 VA mental disorders examination, the Veteran stated that sometimes "I have the feeling of 'if it ended I wouldn't mind.'" Furthermore, the Veteran has submitted a September 2018 private psychological evaluation report that opined the Veteran's disability level corresponds to a 70 percent rating throughout the appeal period. Given the evidence during the appeal period, the Board finds that at least an initial 70 percent rating is warranted throughout the appeal period for the Veteran's insomnia disorder.

6. Entitlement to TDIU prior to November 20, 2017.

A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald,
may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014).

To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19.

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor).

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

At the outset, the Board notes that the Veteran has been awarded TDIU effective from November 20, 2017, based on his service-connected insomnia disorder alone.

After a review of the evidence of record, the Board finds that the evidence persuasively favors granting entitlement to TDIU based on the Veteran's service-connected insomnia disorder alone, from May 26, 2016. In a September 2018 private psychological evaluation report, it was opined that the Veteran's insomnia disorder has precluded substantially gainful employment throughout the appeal period. Inasmuch as the September 2018 private psychological evaluation report was provided by a medical professional competent to opine as to the severity of the Veteran's insomnia disorder and its effect on gainful employment, and it was supported by rationale and review of the evidence of record, the Board finds the opinion to be persuasive. As reflected above, the above decision also granted at least an initial 70 percent rating for the Veteran's insomnia disorder throughout the appeal period. Accordingly, TDIU due to the Veteran's insomnia disorder alone is warranted, effective from May 26, 2016.

7. Entitlement to DEA benefits prior to November 20, 2017.

The Veteran is in receipt of DEA benefits, effective from November 20, 2017. See September 2018 rating decision.

Inasmuch as VA has a "well-established" duty to maximize a claimant's benefits, based on the award of TDIU from May 26, 2016, herein, the Board will proceed with adjudication of his claim seeking entitlement to DEA benefits prior to November 20, 2017. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993).

Amongst other things, basic eligibility for DEA benefits exists if the veteran has a permanent total service-connected disability.

By virtue of the decision above, the Veteran has had a permanent and total service-connected disability since May 26, 2016. Accordingly, the criteria for basic eligibility for Chapter 35 benefits are established from that date.

REASONS FOR REMAND

8. Entitlement to a rating in excess of 10 percent for bilateral hearing loss is remanded.

9. Entitlement to an initial rating in excess of 70 percent for insomnia disorder is remanded.

10. Entitlement to an initial rating in excess of 30 percent for vertigo is remanded.

The Board notes that the most recent VA treatment records before the Board are dated from December 2019. Records of his VA treatment are constructively before VA. As such, remand is necessary to obtain updated medical records. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

In addition, the Board notes that the most recent VA examinations were conducted in October 2016 (vertigo), November 2016 (bilateral hearing loss), and February 2018 (insomnia disorder). Under the circumstances, the Board finds that VA is required to afford him contemporaneous VA examinations to determine the current nature, extent and severity of his bilateral hearing loss, insomnia disorder and vertigo disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

Finally, the Board notes that the Veteran's vertigo is rated under Diagnostic Code 6204. 38 C.F.R. § 4.87. Under Diagnostic Code 6204, 30 percent is the maximum rating available. Under Diagnostic Code 6205, a 30 percent evaluation is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent evaluation is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a maximum 100 percent evaluation is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205. Meniere's syndrome may be evaluated under Diagnostic Code 6025 or receive separate evaluations for vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation.
impairment with vertigo less than once a month, with or without tinnitus; a 60 percent evaluation is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and a maximum 100 percent evaluation is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205. Meniere's syndrome may be evaluated under Diagnostic Code 6025 or receive separate evaluations for vertigo (as a peripheral vestibular disorder), hearing impairment, and tinnitus, whichever method results in a higher overall evaluation. Id., at Note 1. However, an evaluation for hearing impairment, tinnitus, or vertigo with an evaluation under Diagnostic Code 6205 cannot be combined. Inasmuch as the Veteran has established service connection for bilateral hearing loss, tinnitus, and vertigo, rating the Veteran's disabilities by analogy under Diagnostic Code 6205 could be of benefit to the Veteran and should be considered on remand. The Board also notes that the Veteran's VA treatment records reflect diagnosis of Meniere's disease. See, e.g., February 2016 VA treatment record (listing the Veteran's problems/past medical history include Meniere's disease).

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records dated since December 2019.

2. Schedule the Veteran for a VA examination with a suitably qualified medical professional to determine the current severity of his bilateral hearing loss. The examiner must encompass pure tone threshold (in decibels) and Maryland CNC testing. In addition to objective test results, the examiner should fully describe the functional effects caused by his hearing disability, including specifically, the impact of such on his employability.

3. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the current extent and severity of his insomnia disorder with unspecified trauma and stressor related disorder. All signs and symptoms of the service-connected insomnia disorder with unspecified trauma and stressor related disorder must be reported in detail.

4. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the current extent and severity of his vertigo.

A diagnosis of Meniere's disease must be ruled in or excluded, addressing the VA treatment records diagnosing such disability.

The examiner should provide a full description of the Veteran's disabilities and report all signs and symptoms of the service-connected disability.

Joshua Castillo

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Marley, 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.

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