Citation Nr: 18146526 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 99-22 242A DATE: October 31, 2018 ORDER Entitlement to a rating of 50 percent, and no higher, for the period from November 21, 1997 to September 20, 2000 for a pain disorder with major depressive disorder, generalized anxiety disorder and opiate dependence is granted. Entitlement to a rating of 100 percent for the period starting September 21, 2000 for a pain disorder with major depressive disorder, generalized anxiety disorder and opiate dependence is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to September 21, 2000 is granted. Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114(s) for the period starting September 21, 2000 is denied. FINDINGS OF FACT 1. For the period from November 21, 1997 to September 20, 2000, the Veteran’s pain disorder was characterized by occupational and social impairment with reduced reliability and productivity. 2. For the period starting September 21, 2000, the Veteran’s pain disorder was characterized by total occupational and social impairment. 3. Prior to September 21, 2000, the Veteran was service-connected with several disabilities collectively rated at 60 percent. The Veteran’s service-connected disabilities precluded him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. 4. For the period starting September 21, 2000, the Veteran is in receipt of a 100 percent rating for a single disability (pain disorder), and a combined rating of less than 60 percent for residuals of a left femur fracture with left hip strain, donor site scar of the left iliac crest, mechanical low back strain, and surgical scar of the left thigh. CONCLUSIONS OF LAW 1. For the period from November 21, 1997 to September 20, 2000, the criteria for a rating of 50 percent, and no higher, for a pain disorder with major depressive disorder, generalized anxiety disorder and opiate dependence have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9422-9434 (2017). 2. For the period starting September 21, 2000, the criteria for a rating of 100 percent for a pain disorder with major depressive disorder, generalized anxiety disorder and opiate dependence have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9422-9434 (2017). 3. For the period prior to September 21, 2000, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18 (2017). 4. For the period starting September 21, 2000, the criteria for entitlement to SMC under 38 U.S.C. § 1114(s) have not been met. 38 U. S.C. § 1114(s) (2012); 38 C.F.R. § 3.350(i) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1979 to March 1980. He received the Expert Marksmanship Badge (M-16 and hand grenade). The issue of secondary service connection for lower extremity radiculopathy has been raised by the record in treatment record. See February 2017 VA Treatment Records, p. 121. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Increased Rating for a Pain Disorder with Major Depressive Disorder, Generalized Anxiety Disorder and Opiate Dependence At the outset, the Board notes that the claims file contains countless conflicting and inconsistent psychiatric diagnoses including, but not limited to, pain disorder, major depressive disorder, personality disorder, bipolar disorder, opioid dependence, attention deficit disorder, factitious disorder, and post-traumatic stress disorder. As a result, there is conflicting medical evidence regarding which diagnoses are present and which symptoms are attributable to which diagnoses. Most notably, the Veteran recently submitted a private opinion which ultimately concluded that he does not have a diagnosis of personality disorder and many of his presenting symptoms and dysfunctions are the result of his service-connected opioid dependence. See August 2018 Private Treatment Records, pp. 7-12. The Board finds this opinion to be competent, credible and probative. Accordingly, to the extent that the medical evidence reflects diagnoses of other psychiatric disorders, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998); see also 38 C.F.R. § 3.102. The Veteran’s pain disorder with major depressive disorder, generalized anxiety disorder and opiate dependence has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code (DC) 9422-9434. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. A 30 percent rating is assigned for 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). A 50 percent rating is assigned for 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. 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 worklike 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; memory loss for names of close relatives, own occupation, or own name. The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran’s disability has significantly changed over the course of the period that remains on appeal; thus, staged ratings have been assigned accordingly. From November 21, 1997 to September 20, 2000, the Veteran’s pain disorder with major depressive disorder, generalized anxiety disorder and opioid dependence was characterized by occupational and social impairment with reduced reliability and productivity. In connection with his claim, the Veteran underwent a VA examination in May 1998. He endorsed various symptoms including sleep impairment, mood swings, depression, and poor concentration. May 1998 VA Examination, pp. 2-4. The examiner observed the Veteran’s mood to be “a bit testy and irritable,” and characterized the Veteran’s judgment and insight as “fair.” The examiner further noted that the Veteran did not have any suicidal or homicidal ideation, but that he did have conflict with peers and medical providers. Treatment records from this time demonstrate a similar level of severity of symptoms and include poor self-esteem related to physical limitations; anxiety; mildly-to-moderately depressed mood; pressured speech; flight of ideas; sleep impairment; intrusive reflections and nightmares; inattentiveness; distractibility; and, impulse control disturbance. See February 2017 VA Treatment Records, pp. 122, 124-126; October 1999 Third Party Correspondence, p. 1. For the period from November 21, 1997 to September 20, 2000, the Board find that the evidence demonstrates that the Veteran’s pain disorder with major depressive disorder, generalized anxiety disorder and opioid dependence more closely approximates the picture contemplated at the 50 percent rating. In order to warrant a higher rating, the evidence must show 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); inability to establish and maintain effective relationships, or symptoms of similar severity. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). While the evidence demonstrates that the Veteran exhibited pressured speech, a depressed mood and impulse control disturbance, the evidence does not show that these symptoms were of the severity, frequency, and duration contemplated by the 70 percent rating. In addition to these symptoms, the Veteran’s disability was characterized largely by sleep impairment, anxiety, impaired judgment, disturbance of mood, poor concentration, and difficulty in establishing and maintaining effective relationships. The severity of these symptoms most closely approximates those contemplated by a 50 percent disability rating. Accordingly, the Board concludes that a rating of 50 percent, and no higher, for pain disorder with major depressive disorder, generalized anxiety disorder and opioid dependence for the period from November 21, 1997 to September 20, 2000 is warranted. Since September 21, 2000, the Veteran’s disability has been characterized by total occupational and social impairment. The Veteran underwent VA examinations in September 2000, October 2000, March 2003, March 2009, July 2009, and June 2012. At the September 2000 examination, the examiner observed disorganized thinking; rambling, vague and incoherent speech; irritability; impulsive demeanor; disheveled appearance; and, limited insight and judgment. The Veteran reported feelings of worthlessness and hopelessness; sleep impairment; and, suicidal ideation. In October 2000, the Veteran underwent an examination for a neuropsychological assessment. At this time, his appearance was unremarkable but he exhibited some vague and rambling speech and poor insight. During the March 2003 examination, the Veteran was noted as exhibiting pressured and rambling speech, poorly organized thoughts, difficulty concentrating, paranoid ideas in thought content, and anxiety. In March 2009, his symptoms included pressured, tangential and circumstantial speech; sleep impairment; excessive worry; disorganized thought processes; paranoia and persecutory thoughts; hypervigilance; and, impaired insight. The examiner further noted that the Veteran may have some obsessive thinking, compulsive and ritualistic behavior, and ruminations, and had a lack of awareness regarding his psychological impairment. The July 2009 examination report shows that the Veteran experienced increased anxiety; poor appetite; sleep impairment; excessive worry; low motivation; irritability; affective instability including frequent displays of anger; and, paranoid ideation. Finally, at the June 2012 examination, the Veteran’s symptoms included depressed mood, anxiety, and chronic sleep impairment. The June 2012 examiner noted that the Veteran did not show any signs of mental illness. Treatment records for this time show that the Veteran’s more frequent symptoms included depressed mood; anxiety; constricted affect; irritability; anger; poor insight and judgment; sleep impairment; loose and disorganized thought process; vague, pressured and rambling speech; mood swings; impaired recent memory; isolation; and, low motivation. See February 2018 CAPRI, pp. 19, 24, 29, 48, 50, 59, 76, 93; February 2018 CAPRI, pp. 310, 320, 337, 347, 348, 355, 358, 360, 362; February 2017 VA Treatment Records, pp. 178, 290, 301, 311, 315, 324, 328. In January and February 2002, the Veteran was involuntarily hospitalized for his psychiatric disability after barricading himself in his home and threatening to light gas inside to blow himself up. See February 2017 VA Treatment Records, pp. 93, 106, 107. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s disability more closely approximates the picture contemplated by the 100 percent rating for the period starting September 21, 2000. The evidence shows that the Veteran suffers from total occupational and social impairment due to gross impairment in thought process and communication; paranoid ideation; affective instability including frequent displays of anger; and, intermittent suicidal ideation. Accordingly, the Board concludes that a rating of 100 percent for pain disorder with major depressive disorder, generalized anxiety disorder and opioid dependence is warranted for the period starting September 21, 2000. TDIU Prior to September 21, 2000 Total disability ratings for compensation based on individual unemployability (TDIU) 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, failure to meet the schedular requirements for TDIU is not a bar to benefits. All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairments caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran contends that his service-connected pain disorder, residuals of a left femur fracture with left hip strain, donor site scar of the left iliac crest, and mechanical low back strain have prevented him from securing or following substantially gainful employment since 1991. For the period prior to September 25, 2000, the Veteran did not meet the singular (60 percent) or combined (70 percent with one disability ratable at 40 percent) rating requirement for TDIU. Accordingly, the Veteran’s TDIU claim was referred to the VA Director for Compensation Service for extraschedular consideration as required by the provisions of 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In February 2018, the Director found that the Veteran’s service-connected disabilities did not preclude substantially gainful employment and that entitlement to TDIU on an extraschedular basis had not been established. See February 2018 Miscellaneous C&P Correspondence, p. 1. However, the Board is not bound by this determination and shall conduct a de novo review of the claim. Wages, 27 Vet. App. at 238. The Veteran last worked in May 1991 and contends that his service-connected disabilities have precluded him from following substantially gainful employment since then. August 2018 Application for Increased Compensation Based on Unemployability, pp. 1-2. The Veteran’s highest level of education is one year of college. His post-service career consists of a host of jobs including work as a waiter, general laborer, mechanic, operator, and sanitation worker. See February 1999 SSA Medical Records, p. 2. Turning to the impact of the Veteran’s service-connected disabilities prior to September 21, 2000, the Veteran was service-connected for a pain disorder, residuals of a left femur fracture with left hip strain, donor site scar of the left iliac crest, mechanical low back strain, and surgical scar of the left thigh. As noted above, the Veteran’s pain disorder resulted in occupational and social impairment with reduced reliability and productivity due to symptoms such as pressured speech, a depressed mood, impulse control disturbance, sleep impairment, anxiety, impaired judgment, poor concentration, and difficulty in establishing and maintaining effective relationships. The Veteran’s back, femur and hip disabilities resulted in chronic pain. See February 1998 VA Examination, p. 2; May 1998 VA Examination, p. 3. In support of his claim for TDIU, the Veteran submitted an opinion from his VA psychiatrist which offered that the Veteran’s back disability, leg disability and psychiatric disabilities render him unemployable. See October 1999 Third Party Correspondence, p. 1. The Board finds that the evidence for and against the Veteran’s claim is at least in equipoise. The Veteran’s residuals of a left femur fracture with left hip strain, donor site scar of the left iliac crest, and mechanical low back strain interfere with his ability to perform physical employment tasks because of chronic pain, and his pain disorder interferes with his ability to establish and maintain effective work relationships. The Veteran’s employment history consists exclusively of work that requires the ability to perform physical tasks and also work with others, and the Veteran’s disabilities have been shown to impact these abilities. The Veteran does not have any other specialized education, training or other experience that suggests he may be able to secure gainful employment that does not require these abilities. Moreover, many of the symptoms enumerated above would impact the Veteran’s ability to successfully perform work in most occupational settings. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran was unable to maintain a substantially gainful occupation as a result of his service-connected disabilities for the period prior to September 21, 2000, and an award of TDIU on an extraschedular basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). SMC Starting September 21, 2000 The Veteran has been awarded a 100 percent rating for the period starting September 25, 2000 for his pain disorder, and the issue of entitlement to SMC has been implicitly raised by the record. Moreover, such a claim is inherently part of an appealed rating claim where the criteria are raised. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). SMC under 38 U.S.C. § 1114(s) is a special statutory benefit that is payable if a veteran has a single service-connected disability rated at 100 percent, and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i); see also Bradley, 22 Vet. App. 280. Here, the Veteran’s other service-connected disabilities, including residuals of a left femur fracture with left hip strain, donor site scar of the left iliac crest, mechanical low back strain, and surgical scar of the left thigh, are separate and distinct from his pain disorder. When taken together, and excluding the 100 percent rating for pain disorder, the Veteran’s additional service-connected disabilities have a combined schedular rating of 30 percent for the entire appeal period. Accordingly, SMC under 38 U.S.C. § 1114(s) is not warranted, and the claim must be denied as a matter of law. See 38 U.S.C. § 1114(s). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel