Citation Nr: 23019799 Decision Date: 03/30/23 Archive Date: 03/30/23 DOCKET NO. 17-46 666 DATE: March 30, 2023 ORDER An initial rating of 50 percent, but not higher, for insomnia disorder is granted. From August 28, 2017, to June 24, 2019, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Prior to July 14, 2020, an initial rating in excess of 10 percent for degenerative arthritis of the right knee. ? FINDINGS OF FACT 1. The Veteran's insomnia disorder approximated occupational and social impairment with reduced reliability and productivity. 2. From August 28, 2017, the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 50 percent, but not higher, for insomnia disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9410. 2. From August 28, 2017, to June 24, 2019, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to June 1969. The Veteran died in November 2021. The appellant is his surviving spouse. The case is on appeal from July 2016 and November 2017 rating decisions. In December 2019, the Veteran testified at a Board hearing. In a June 2021 decision, the Board denied an increased rating in excess of 30 percent for insomnia and a right knee rating in excess of 10 percent prior to July 14, 2020. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) for those two claims. Pursuant to a September 2022 Joint Motion for Partial Remand (JMR), the Court issued a September 2022 Order that vacated the Board decision with regard only to the increased ratings for insomnia and a right knee rating prior to July 14, 2020. In doing so, the Court also granted the appellant substitution to continue the appeal that was pending at the time of the Veteran's death. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, the appellant, her representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial rating in excess of 30 percent for insomnia disorder. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's psychiatric disorder has been evaluated under the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130, DC 9410. A 10 percent rating is warranted for 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 evaluation is warranted where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted for depressive disorder where there is 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. A 70 percent evaluation is warranted where there is objective evidence demonstrating 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, or 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; and the inability to establish and maintain effective relationships. A 100 percent disability evaluation is warranted when there is 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 and place; and memory loss for names of close relatives, own occupation, or own name. The symptoms listed in DC 9410 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). Facts The appellant contends that the Veteran's service-connected insomnia warrants a rating in excess of 30 percent. Following the August 2017 claim during his lifetime, the Veteran was afforded a November 2017 VA examination in which he was diagnosed with insomnia disorder. The examiner found the Veteran did not meet the DSM-5 criteria for a diagnosis of depressive disorder. She indicated the Veteran's insomnia caused 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. The Veteran reported irritability, chronic sleep impairment and fatigue and that he had never participated in mental health treatment. The examiner noted he was oriented and alert, with normal emotional expression, normal thought processes, and no delusions, hallucinations, or suicidal or homicidal ideation. The Veteran submitted a January 2018 NOD which indicated his score on the insomnia severity score was moderate, but he believed his disorder was actually severe, with symptoms of depression, anxiety, chronic sleep impairment and memory loss. In the December 2019 Board hearing, the Veteran indicated his insomnia impacted his relationship with his spouse, along with others. He also stated his insomnia can be severe at times. The claim came before the Board in March 2020, and it increased the insomnia rating to 30 percent and remanded the claim for a rating in excess of 30 percent for an additional VA examination. Pursuant to the Board's March 2020 remand, the Veteran was afforded an October 2020 VA examination in which the examiner determined his insomnia caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. The examiner indicated the Veteran had trouble sleeping and would wake up frequently throughout the night. The examiner stated the Veteran had chronic sleep impairment and his sleep disturbances caused him irritation and frustration. She reported the Veteran did not have any depression or anxiety symptoms to warrant a separate mental health diagnosis. As noted, the Board denied an insomnia rating in excess of 30 percent in its June 2021 decision. The Veteran appealed the decision to the Court and thereafter, the September 2022 JMR and Order vacated the denial. The JMR stated the Board must discuss the Veteran's psychiatric symptoms, to include the frequency, severity and duration of such symptoms per Vazquez-Claudio. Thereafter, psychiatric treatment records were submitted from the period prior to the Veteran's November 2021 death. An August 2021 treatment record indicated the Veteran had significant posttraumatic stress disorder (PTSD) symptoms. The examiner noted symptoms of severe distress, fear, anxiety, social withdrawal, emotional detachment, relationship problems and sleep trouble. The examiner reported moderate depression present, anger, aggression, impulsive behavior, worrying, intrusive memories and nightmares. However, he noted the Veteran had low risk for harm to himself or others. The Board notes a January 2023 representative's brief was submitted which indicated the frequency, severity, and duration of the Veteran's psychiatric symptoms warrant a 50 percent rating, from August 28, 2017, until his death. Analysis After a careful review of the evidence, and in light of the September 2022 JMR and Court Order, the Board determines that the Veteran's insomnia disorder rating should be increased to 50 percent for the entire appeal period. The Board finds from August 2017, the Veteran's insomnia disorder approximated occupational and social impairment with reduced reliability and productivity. While assessing the severity, frequency and duration of the signs and symptoms of the Veteran's insomnia disorder and recognizing that the symptoms listed in the rating criteria are non-exhaustive examples, and when looking at the effects determining the impairment level, the Board finds that an initial 50 percent rating is warranted. See Vazquez-Claudio, 713 F.3d at 117. This is so particularly when reasonable doubt is resolved in the appellant's favor. See 38 C.F.R. §§ 3.102, 4.3. The Board finds an additional increase is not supported, as the Veteran's insomnia disorder did not approximate occupational and social impairment with deficiencies in most areas and an even higher 70 percent rating. The evidence of record shows the Veteran experienced symptoms of irritability and chronic sleep impairment, as well as reported depression, anxiety and memory loss. Additionally, shortly prior to his death, an August 2021 treatment record noted symptoms of severe distress, fear, anxiety, social withdrawal, emotional detachment, relationship problems and sleep trouble. The appellant's representative in the January 2023 brief asserts the Veteran's psychiatric symptoms warranted a 50 percent rating for the entire appeal period. The Board tends to agree and as such, an increased rating for the Veteran's insomnia disorder is granted, from August 28, 2017. While an increased rating to 50 percent is warranted for the Veteran's insomnia disorder, a further increase to 70 percent for occupational and social impairment with deficiencies in most areas, is not supported. In this regard, the Veteran's insomnia symptoms did not include homicidal or suicidal ideation, gross impairment in thought processes or communication, near-continuous panic or depression affecting the ability to function independently, or an inability to establish and maintain effective relationships. As such, at no point during the appeal period did the Veteran's disorder approximate occupational and social impairment with deficiencies in most areas. Accordingly, the Board finds that an initial rating of 50 percent, but not higher, for the Veteran's insomnia disorder is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The benefit of the doubt has been afforded to the appellant in awarding the increased rating to 50 percent and the evidence is persuasively against an even further increased rating. 2. A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). 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 work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis The appellant contends that the Veteran's service-connected disabilities during his lifetime prevented all substantially gainful employment. Although a TDIU application is not of record, the appellant's representative submitted a January 2023 brief, as well as a December 2022 vocational assessment, which supports that the Veteran's service-connected disabilities prevented all substantially gainful employment from August 2017. Thus, the Board finds that the issue of entitlement to a TDIU has been raised by the record and is "part and parcel" of the increased rating claims on appeal. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). As an initial matter, the Board notes the Veteran had received a 100 percent schedular rating as a result of a combination of his service-connected disabilities pursuant to the rating schedule, from June 25, 2019, until his death on November 15, 2021. The Board notes that the presence of a schedular 100 percent disability rating does not necessarily render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008) (holding that 100 percent evaluation does not render a TDIU claim moot where there is a possibility that TDIU will impact entitlement to special monthly compensation (SMC) based on receipt of service connection for a disability with a 100 percent rating and another with a separate 60 percent rating). However, here the Veteran also received SMC based on housebound criteria under 38 U.S.C. § 1114(s), effective June 25, 2019. Accordingly, the issue of a TDIU from June 25, 2019, until the Veteran's date of death is moot. Therefore, the Board will review the evidence to determine if a TDIU is warranted prior to June 25, 2019. The evidence shows the Veteran stopped working in approximately 2012, when he retired from working in the construction industry. Further, as noted above, the appellant's representative submitted a January 2023 brief which raised the issue of a TDIU and contends a TDIU is warranted from August 28, 2017. After a review of the medical evidence of record, the Board agrees, and determines a TDIU is warranted from August 28, 2017, to June 24, 2019. The Board considers this grant of a TDIU a full grant of the benefit sought on appeal. The evidence includes a September 2017 VA knees examination in which the examiner indicated the Veteran's service-connected knee disorders impacted his ability to work. The examiner stated the conditions would impose work restrictions in fields involving labor and would have restricted the Veteran's ability to lift, pull or carry moderate and heavy loads for short and prolonged periods of time. She noted the Veteran could have performed sedentary work. A November 2017 VA examiner indicated the Veteran's knees would have limited his physical and sedentary activity with acute exacerbations of his biliteral knee conditions. The Veteran was afforded a July 2019 VA knees examination in which the examiner found he had an inability to stand or walk for any period of time and he required a cane due to imbalance. The Board notes the Veteran underwent left total knee arthroplasty in June 2019. A December 2022 vocational opinion was submitted in which the examiner concluded the Veteran's service-connected disabilities prevented him from performing all substantially gainful employment from August 28, 2017, until his death. The author stated the Veteran's service-connected disabilities, to include his knees, back, left big toe, insomnia, bilateral hips and bilateral lower extremity radiculopathy, caused impairment such that all employment, including sedentary unskilled work, was not possible. She noted the Veteran's musculoskeletal disorders impacted his ability to sit, stand, and/or walk to an extent that he was precluded from performing the full range of physical requirements of even sedentary employment, consistently and reliably. The examiner stated the Veteran was unable to complete the basic non-exertional requirements necessary for all employment, such as his ability to focus, follow instructions, attend to a regular schedule and consistently produce a certain, minimal amount of work while on the job. She indicated the Veteran was unable to meet most, if not all of the basic non-exertional requirements for a job due to his musculoskeletal and psychiatric disabilities. She noted the Veteran's lack of completed education beyond high school would have offered no significant advantage for the labor market, and he worked his entire career in construction with no documented work experience in sedentary or office type capacities. As such, the examiner opined it is more likely than not that the Veteran was unable to secure and follow any substantially gainful employment, to include all unskilled sedentary employment, due to his service-connected disabilities from August 28, 2017, until his death in November 2021. After a careful review of the evidence, the Board finds the Veteran's service-connected disabilities prevented all substantially gainful employment from August 28, 2017, until his death on November 15, 2021. As such, the evidence shows a TDIU is warranted from August 28, 2017. The evidence shows the Veteran did not work in a substantial capacity following his 2012 retirement after 25 years of work in the construction industry. Further, the appellant's representative asserts the Veteran's service-connected disabilities prevented all substantially gainful employment from August 28, 2017. The Board finds the December 2022 vocational opinion to be the most persuasive evidence of record with regard to a TDIU and the examiner concluded the Veteran's service-connected disabilities prevented him from performing any substantially gainful employment from August 28, 2017. The examiner opined the Veteran's musculoskeletal disorders, along with his service-connected insomnia, caused impairment such that all employment, including sedentary unskilled work, would not have been possible. She noted the Veteran would have had trouble with sitting, standing and walking, as well as difficulty focusing, following instructions, attending to a regular schedule, and consistently producing a certain, minimal amount of work while on the job. Thus, the December 2022 vocational opinion supports a TDIU from August 28, 2017. As discussed above, the issue of a TDIU from June 25, 2019, is moot. From that date, the Veteran had received a 100 percent schedular rating, as well as SMC based on housebound criteria under 38 U.S.C. § 1114(s). Accordingly, the Board determines a TDIU is granted from August 28, 2017, to June 24, 2019. The Board also notes that the schedular criteria have been met from August 28, 2017, per 38 C.F.R. § 4.16(a). In this regard, the Veteran's overall combined rating is 80 percent from August 28, 2017, and his service-connected bilateral knees, left big toe, back, bilateral lower extremity radiculopathy and bilateral hips ratings combine to constitute at least a 40 percent rating. These eight disabilities combine to affect a single body system (musculoskeletal), and as such, will be considered as one disability. See 38 C.F.R. § 4.16(a)(3). Thus, from August 28, 2017, the schedular criteria per 38 C.F.R. § 4.16(a) have been met. In sum, after resolving any reasonable doubt in the appellant's favor, the Board finds that the Veteran's service-connected disabilities prevented him from securing and following substantially gainful employment from August 28, 2017, to June 24, 2019. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, a TDIU is warranted from August 28, 2017. Based on the noted contentions, the Board considers this grant of a TDIU a full grant of the benefit sought on appeal. Although the Board is remanding another claim for additional development, remand is not necessary for the issues decided herein, as there is no reasonable possibility that further assistance would further substantiate the claims. See 38 C.F.R. § 3.159(d). ? REASONS FOR REMAND Prior to July 14, 2020, an initial rating in excess of 10 percent for degenerative arthritis of the right knee. The Board denied the claim for a right knee disorder in excess of 10 percent prior to July 14, 2020, in its June 2021 decision. Thereafter, the September 2022 JMR and Order vacated the Board denial. The JMR found that the November 2017 VA examination during the appeal period was inadequate, as to the Veteran's functional loss due to his reported flare-ups, per Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The parties to the JMR further noted the Board must consider whether additional functional loss is present, including any evidence of decreased movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. Based on the September 2022 JMR, the Board finds that a retrospective VA medical opinion is required, to determine the severity of the Veteran's right knee disability prior to July 14, 2020. The Board notes the examiner must address the Veteran's flare-ups which were reported throughout the record and any additional impairment and range of motion loss due to such flares. The matters are REMANDED for the following action: Forward the claims file to an appropriate VA examiner to assess the severity of the Veteran's service-connected right knee disorder prior to July 14, 2020. Following a review of the record, the examiner should provide a retrospective opinion which estimates the amount in degrees of range of motion lost due to flare-ups experienced by the Veteran at the time of the examinations conducted in April 2016, September 2017, November 2017 and July 2019. The opinion should include consideration of the evidence, to include the lay evidence, including the December 2019 Board hearing testimony, and the September 2022 JMR. If the examiner cannot provide some or all of such retrospective opinion, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.