Citation Nr: 21029245 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 19-06 491 DATE: May 13, 2021 REMANDED The issue of entitlement to an initial disability rating in excess of 40 percent for persistent depressive disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1960 to December 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for persistent depressive disorder with an initial 40 percent rating, and a 10 percent baseline level of disability. The Board issued a decision in March 2020 denying the Veteran's claim of entitlement to an initial disability rating in excess of 40 percent for persistent depressive disorder. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and the parties filed a Joint Motion for Remand (JMR) in December 2020. Thereafter, in December 2020, the Court issued an Order granting the JMR and remanding the matter for action consistent with the terms of the JMR. Entitlement to an initial disability rating in excess of 40 percent for persistent depressive disorder is remanded. In December 2020, the Court remanded the Veteran's claim based on a JMR stating that the Board's finding that prior to aggravation, the baseline for the Veteran's persistent depressive disorder was 10 percent, was not supported by an adequate statement of reasons or bases. Specifically, the Court stated that it was unclear what evidence the Board relied upon to make the finding since it acknowledged that neither the March 2017 nor the April 2018 VA examinations provided a baseline. When a disability is found to be entitled to VA disability compensation based on § 3.310(b), the rater is directed to deduct the baseline level of severity from the assigned disability rating. Therefore, without further clarification regarding the baseline level of severity of service-connected persistent depressive disorder prior to aggravation, the Board is without medical expertise to determine the current nature and severity of the Veteran's service-connected persistent depressive disorder. Accordingly, the Board finds that a remand is required to obtain a competent VA addendum opinion in accordance with the directives in the JMR. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding treatment records. 2. Obtain an addendum opinion from an appropriate clinician. The claims file should be made available and review of the file should be noted in the full requested report. The full history of the identified disability should be recorded, including the Veteran's competent account of his symptoms. (a.) Please attempt to quantify the degree of aggravation of the Veteran's service-connected persistent depressive disorder by service-connected gastroesophageal reflux disease, hiatal hernia, and diverticulosis with history of duodenal/gastric ulcer and helicobacter pylori infection beyond the baseline level. The examiner is asked to specifically address the RO's determination that prior to aggravation the Veteran's persistent depressive disorder was considered 10 percent disabling based on evidence that showed mild social and occupational impairment and the Board's March 2020 determination that pre-aggravation the Veteran's persistent depressive disorder closely approximated occupational and social impairment due to mild or transient symptoms which required continuous medication (SSA records indicated that the Veteran was granted disability at least in part due to his psychiatric disability; treated with Prozac in 1995 and 1996; September 1998 psychiatric treatment note indicated that the condition required continuous medication). The examiner is also asked to specifically address the April 1999 letter from a clinician stating that the Veteran's depressive symptoms were a baseline condition which best fit the diagnostic category of dysthymia; October 2000 psychiatric outpatient note stating that recurrent major depression and dysthymia were currently a bit better than baseline objectively; March 2001 VA psychiatric outpatient note suggesting that the condition's baseline was about baseline level of sadness; January 2002 VA psychiatric outpatient note documenting that the Veteran was at baseline, dysthymic, resigned; November 2005 VA psychiatric note indicating that the Veteran reported baseline...he still struggles with dysthymic feelings, but at least the depressive symptoms are held at bay; July 2007 VA mental health management notes stating that the Veteran reported baseline mood, no deep depression, but still a lingering sense of sadness; July 2007 VA mental health management note stating that affect was mildly depressed, better than baseline; March 2008 VA mental health management note stating that affect was neutral, better than baseline; November 2008 VA Examination note indicating that the Veteran continued at his baseline mood as of December 2003 and on and off through March 2006, but in late May 2006 he was feeling more depressed at the time; March 2017 VA Examination note indicating that the Veteran was severely enough depressed in 1983 for it to be noted in the medical record and to further note that he has been depressed most of the time since then according to the medical record; and October 2018 private opinion from Dr. JF. (b.) If the examiner cannot provide the requested opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.