Citation Nr: 18153773 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 12-17 749 DATE: November 29, 2018 ORDER As the baseline disability evaluation of 50 percent assigned to the service-connected major depressive disorder (MDD) is found to be improper, it is therefore discarded, and the Veteran’s baseline evaluation for calculation of compensation for his MDD is established as zero. FINDING OF FACT VA is unable to establish a proper baseline disability evaluation to sufficiently distinguish whether symptomatology associated with the Veteran’s other diagnosed (but non-service-connected) disorders could be distinguished from the symptomatology associated with the service-connected MDD. CONCLUSION OF LAW The criteria for a baseline disability evaluation in excess of zero percent has not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.310, 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434 (2017); Mittleider v. West, 11 Vet. App. 181 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from April 1971 to February 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2011 rating decision of the Providence, Rhode Island Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2014 and September 2017 the Board remanded the issues of the Veteran’s appeal. The directed opinion having been accomplished, the issues are again before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal presents a complex medical history and procedural posture. By way of background, the RO had denied a claim to service connection for major depressive disorder (MDD) in a January 2006 rating decision. In a May 2007 rating decision, the RO denied a claim to reopen service connection for posttraumatic stress disorder (PTSD). 38 C.F.R. § 3.156. The Veteran appealed both decisions to the Board. The Board remanded the matter in September 2009. Then, in a February 2011 decision, the Board granted the Veteran’s claim to service connection for an acquired psychiatric disorder, specifically MDD, finding that the evidence indicated that a major depressive disorder was aggravated by pain associated with service-connected disorders of the lumbar spine, knees, and right shoulder. 38 C.F.R. § 3.310. In the March 2011 rating decision, the RO implemented the Board’s February 2011 grant of service connection for major depressive disorder based on aggravation under 38 C.F.R. § 3.310. The RO found the disorder to be 50 percent disabling, and further determined that factor of 50 percent disabling to also represent the baseline manifestations of the MDD (i.e., depression prior to aggravation, hereinafter “baseline”). As the RO found the disorder 50 percent disabling in March 2011, a 0 percent rating was assigned after accounting for the aggravation factor (i.e., deducting the baseline rating from the cumulative rating). The RO assigned an effective date of November 4, 2005 – on that date, each of the three orthopedic disorders forming the basis of the service connection finding based on aggravation had been service connected. 38 C.F.R. § 3.310. The Veteran filed a notice of disagreement (NOD) against the decision in April 2011. During the appeal period, in a June 2012 rating decision, the RO found the cumulative rating for the Veteran’s depression to be 70 percent disabling since October 30, 2006. As such, following the deductions due to aggravation (50 percent baseline) from that cumulative rating of 70 percent, a 20 percent rating was assigned effective October 30, 2006. AB v. Brown, 6 Vet. App. 35 (1993). In September 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a videoconference Board hearing. A copy of the hearing transcript has been associated with the record. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, TDIU was granted in a September 2017 rating decision, effective from May 12, 2016. Based on the record, the Board finds that an earlier eligibility for TDIU is not inferred. 38 C.F.R. § 4.16(a). There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of SMC is also not inferred by the record, and as such will not be discussed.   Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Baseline Disability Evaluation of 50 percent Assigned for Major Depressive Disorder (MDD) Service connection is warranted where the evidence of record established that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting, such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A Veteran can receive compensation via secondary service connection. Service connection may be secondarily established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) [t]hat a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 38 C.F.R. § 3.310 requires that a “baseline level of severity” of the nonservice connected condition be established by medical evidence in order to award secondary service connection based on aggravation. In this case, then, the medical evidence underlying the establishment of the baseline evaluation is critical to establishing the correct ratings for the Veteran’s service-connected MDD. Here, the establishment of the baseline evaluation of the Veteran’s MDD, which may include symptomatology of other psychiatric and non-psychiatric disorders and thus affect the rating awarded, is critical to a proper evaluation of the Veteran’s appeal. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability). The Veteran’s MDD is originally service-connected on a secondary basis that is proximately due to or the result of a service-connected condition, namely, the Veteran’s lumbar spine, bilateral knees, and right shoulder disabilities. See 38 C.F.R. § 3.310. Service connection is possible when a service-connected condition has aggravated a claimed condition, but compensation is only payable for the degree of additional disability attributable to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In a March 2011 rating decision, the RO found the baseline manifestations of the depression (i.e., depression prior to aggravation) to be 50 percent disabling. As the RO found the disorder 50 percent disabling in March 2011, a 0 (zero) percent, or noncompensable, rating was assigned for compensation purposes. The RO assigned an effective date of November 4, 2005; on that date, each of the three orthopedic disorders forming the basis of the service connection finding based on aggravation had been service connected. During the appeal period, in a June 2012 rating decision, the RO found the Veteran’s depression to be 70 percent disabling since October 30, 2006. As such, following the baseline deduction, a 20 percent rating was assigned effective October 30, 2006 for compensation purposes. The previous Board decision and remand of September 2017 evaluated and denied claims for increased ratings of the Veteran’s MDD, and therefore the ratings and effective dates for the pre-baseline MDD remain at 50 percent prior to October 30, 2006, and 70 percent thereafter, exclusive of any adjustment for aggravation. As such, those ratings for the Veteran’s MDD are not at issue in this decision. Rather, the essential issue at hand in this decision is whether the baseline disability evaluation of 50 percent assigned for the service-connected MDD is proper. The Board’s reasoning in its February 2014 and September 2017 remands was its finding that the reliance upon a single examination approximately five years after the initial establishment of the baseline for aggravation was inadequate, given the existence of psychiatric treatment for the Veteran going back to 2002. In a March 2015 VA examination and opinion, the assigned VA examiner declared it would be “mere speculation in answering this type of question,” and therefore no opinion was provided. As this did not answer the directive in the February 2014 Board remand, the issue was remanded again by the Board in September 2017, with a modification of the instruction to specify that a VA psychologist or psychiatrist who had not treated the Veteran previously to provide a retrospective medical opinion of the entire claims file and respond to the necessary question as to whether the establishment of the baseline for aggravation was appropriate and adequate. See Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that a duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). The intent of the Board was to provide a fresh look by a VA examiner qualified in psychiatry or psychology to ascertain the question regarding the baseline. Upon the Board’s remand of September 2017, VA provided a retrospective opinion in October 2017 by an examiner previously unfamiliar with the Veteran to evaluate the Veteran’s MDD prior to its aggravation by service-connected orthopedic disorders, and to comment on the accuracy of the RO’s finding that the pre-aggravation disorder was 50 percent disabling prior to November 2005. The examiner was also asked to provide an opinion regarding whether symptomatology associated with the Veteran’s other diagnosed (but non-service connected) psychiatric disorders (e.g., PTSD) can be distinguished from the symptomatology associated with the service-connected depression. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant’s favor and the symptoms in question must be attributed to the service-connected disability). This October 2017 VA examiner first noted the nature and severity of the Veteran’s service-connected MDD, noting it was currently considered severe, and that depressive symptoms for the Veteran were noted going back to childhood. Those depressive symptoms became more prominent after the Veteran left active service in 1975 and into the following decade. The examiner continued, saying even though the major depression appears to have preceded the Veteran’s military service, there is evidence that it was exacerbated by his physical pain secondary to his service-connected conditions. The examiner referred to VA examinations from April 2010 and April 2017 in noting that the pain from his service-connected physical conditions “may” exacerbate the Veteran’s depression. This examiner did not provide an opinion on an appropriate specific level of baseline for determination of aggravation. This October 2017 VA examiner also discussed whether symptomatology associated with other diagnosed (but non-service-connected) psychiatric disorders, such as the Veteran’s PTSD, could be distinguished from the symptomatology associated with service-connected conditions to include the MDD. The examiner noted symptoms listed from a VA treatment note of June 2017 as well as a VA examination from April 2017 regarding how the Veteran’s insomnia “may” be attributable to the Veteran’s PTSD diagnosis but not his MDD. Again, this examiner did not provide an opinion on an appropriate specific level of baseline for determination of aggravation. The use of the words “possible,” “may,” or “can be” make a doctor’s opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127–28 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor’s statement framed in terms such as “could have been” is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (“may or may not” language by physician is too speculative). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The Board notes the discussion of psychiatric symptoms and other symptoms from physical disorders in that March 2011 rating decision and the October 2017 medical opinion, but the Board is also unable to ascertain the medical evidence and criteria for the selection of the baseline figure of 50 percent, thus making it an arbitrary determination and one that is conclusory. It is insufficient to make conclusory statements that the Veteran’s symptoms are contemplated by the rating criteria without addressing the specific symptoms and the specific rating criteria and providing an analysis as to how those symptoms are contemplated by the rating criteria. Anderson v. Shinseki, 22 Vet. App. 423, 426 (2009) (citing 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990)). The Board is cognizant of the requirement that the baseline level of the non-service connected disability must be established with the level of additional disability then determined to evaluate the degree of increased disability of the non-service connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Yet, the Board notes that two different VA examiners, with similar directive questions, were unable to provide a specific justification or recommendation as to the baseline disability evaluation arbitrarily established at 50 percent by the RO in a March 2011 rating decision. Because evaluation of the available medical evidence is necessary in making the baseline determination, the Board itself is prevented from making that determination on its own. The Board may only consider independent medical evidence of record to support its findings and may not provide its own medical conclusion in the guise of a Board opinion. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (finding that the Board improperly made a medical determination as to the relative severity, common symptomatology, and usual treatment of an ACL injury without citing to any independent medical evidence to corroborate its finding). Furthermore, and significantly, the Board notes that the two VA examiners asked to opine regarding the baseline evaluation could not sufficiently distinguish whether symptomatology associated with the Veteran’s other diagnosed (but non-service-connected) psychiatric disorders (e.g., PTSD) could be distinguished from the symptomatology associated with the service-connected MDD. When it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected condition. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 38 C.F.R. § 3.102). As such, then, the Board finds that the baseline disability evaluation of 50 percent originally proffered in the March 2011 rating decision to be insufficient and therefore not proper to meet the requirement of a baseline level of non-service connected disability. Because it is not proper, that 50 percent level of baseline aggravation will be discarded. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Pursuant to Mittleider, then, because VA is unable to separate the effects of a service-connected condition from non-service-connected conditions, all such signs and symptoms will be attributed to the Veteran’s service-connected MDD. Mittleider v. West, 11 Vet. App. 181 (1998). In effect, the Board finds that the appropriate level of baseline aggravation is zero, vice the previous 50 percent. Therefore, the Veteran’s MDD will be compensated without the previous baseline level of aggravation of 50 percent disabling, and as such, the Veteran’s evaluation for compensation for his MDD is established at the pre-baseline level of 50 percent prior to October 30, 2006, and 70 percent thereafter. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369–70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel