SLEEP DISTURBANCE

Summary

The Veteran, who served in the United States Coast Guard from August 1970 to September 1974, appeals the denial of an increased rating for his service-connected insomnia disorder. The Board previously granted service connection for insomnia disorder and an initial 70 percent rating, effective May 26, 2016. The case was remanded for a new VA examination to assess the current nature, extent, and severity of the disability. The RO increased ratings for hearing loss and vertigo (recharacterized as Meniere's Syndrome) upon remand, making those issues moot. The sole remaining issue is entitlement to a rating exceeding 70 percent for insomnia disorder. The Veteran submitted a private psychological evaluation supporting a 70 percent rating throughout the appeal period, and VA examinations noted symptoms like depressed mood, anxiety, chronic sleep impairment, and difficulty with social relationships. However, the Board found the evidence did not support total social impairment, citing VA treatment records and social work records indicating the Veteran maintained relationships and communicated appropriately. The Board concluded that absent total social impairment, a 100 percent rating is not warranted, and therefore denied the increased rating beyond 70 percent.

Rationale

Evidence does not support total social impairment; Conflicting evidence regarding social relationships; Absent total social impairment, 100% rating not warranted

Full Decision Text

Citation Nr: 25000858
Decision Date: 01/22/25	Archive Date: 01/22/25

DOCKET NO. 18-49 381
DATE: January 22, 2025

ORDER

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

FINDING OF FACT

The Veteran's service-connected insomnia disorder is not manifested by total occupational and social impairment.

CONCLUSION OF LAW

The criteria for an initial rating in excess of 70 percent for insomnia disorder have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9400.

REASONS AND BASES FOR FINDING AND CONCLUSION

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

This matter comes 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).

The appeal was last before the Board in August 2023, the Board granted and earlier effective date of Amy 26, 2016, for the award of service connection for insomnia disorder and granted an initial 70 percent rating for insomnia disorder.  The Board also remanded the issues of entitlement to (i) a rating in excess of 10 percent for hearing loss; (ii) an initial rating in excess of 30 percent for vertigo; and (iii) an initial rating in excess of 70 percent for insomnia disorder.

Upon remand, in September 2024, the RO increased the rating for hearing loss and vertigo, which it recharacterized as Meniere's Syndrome, from 30 percent to 100 percent, effective May 26, 206.  As this award represents a full grant of the benefits sought on appeal for hearing loss and vertigo, these issues are no longer before the Board.  Accordingly, the remaining issue is entitlement to a rating in excess of 70 percent for insomnia disorder.

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

The Veteran has asserted entitlement to a rating in excess of 70 percent for his service-connected insomnia disorder.  The service-connected insomnia disorder has been rated 70 percent disabling, pursuant to DC 9400, from May 26, 2016.  After careful consideration of the record, the Board finds that an increased rating is not warranted.

In August 2023, the Board found that the evidence of record entitled the Veteran to at least an initial 70 percent rating throughout the appeal period as 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 included a November 2017 VA treatment record noting his feeling of hopelessness about the present or future.  In addition, on a 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 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.

The Board noted that the Veteran's most recent VA examination to assess his insomnia disorder was conducted in February 2018, and remanded the claim to afford the Veteran a contemporaneous VA examination to determine the current nature, extent and severity of his service-connected psychiatric disability.

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 (
 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 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.

Pursuant to the Board's August 2023 remand, the Veteran was afforded a new VA mental disorders examination in August 2024.  The August 2024 VA examiner summarized the Veteran's insomnia disorder as occupational and social impairment with reduced reliability and productivity.  The Veteran was also diagnosed with unspecified trauma and stressor related disorder.  The examiner noted that Veteran, since his last evaluation, had not taken any psychiatric medications, was not hospitalized, denied suicidal ideation, denied psychosis, mania, or obsessive-compulsive symptoms.  The Veteran noted he has occasional panic attacks and had improved his ability of managing his anger since his last evaluation.  The Veteran's symptoms included: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and neglect of personal appearance and hygiene.  

The examiner observed the Veteran to be alert and oriented during the interview.  The examiner noted that his mood was dysthymic, the attitude towards the examiner was cooperative, thought processes were linear, judgment and insight appeared fair, and there was no evidence of delusions or obsessions.  The examiner noted that the Veteran was
.  The Veteran noted he has occasional panic attacks and had improved his ability of managing his anger since his last evaluation.  The Veteran's symptoms included: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and neglect of personal appearance and hygiene.  

The examiner observed the Veteran to be alert and oriented during the interview.  The examiner noted that his mood was dysthymic, the attitude towards the examiner was cooperative, thought processes were linear, judgment and insight appeared fair, and there was no evidence of delusions or obsessions.  The examiner noted that the Veteran was capable of managing his financial affairs, and he was not at an elevated acute risk of suicidal ideation.

The Board finds that the medical evidence of record is against a finding that the Veteran's insomnia disorder shows total social impairment.  The Board acknowledges that the Veteran's August 2024 examination report indicates that he does not have close friends and lives alone but occasionally talks to his brother and sister.  However, VA treatment records show that the Veteran has reported close friend as well as relationships with family members.  See, e.g., VATR (November 7, 2023; July 16, 2021).  Additionally, social work records show that the Veteran was friendly, communicated appropriately, and that his thoughts were clear and coherent.  See, e.g., VATR (October 19, 2020).

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?

This evidence persuasively shows that the Veteran has been capable of relationships, and thus, weighs against a finding of total social impairment.  Absent total social impairment, the Board cannot find that a 100 percent rating for insomnia disorder is warranted.  Accordingly, a rating in excess of 70 percent for insomnia disorder is denied.

 

 

Joshua Castillo

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Ahmed, Zarar

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.