Citation Nr: 21030544 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-05 935 DATE: May 19, 2021 ORDER An initial disability rating of 70 percent, but not higher, for major depressive disorder (MDD), excluding the period during which a temporary total rating pursuant to 38 C.F.R. § 4.29 was assigned, is granted. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD), to include as secondary to service-connected MDD, is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. FINDINGS OF FACT 1. From May 13, 2011 to June 18, 2017, the Veteran's service-connected MDD caused occupational and social impairment, with deficiencies in most areas, but did not result in total occupational and social impairment. 2. From June 19, 2017 to August 1, 2017, the Veteran was in receipt of a temporary total (100 percent) disability rating for MDD. 3. From August 1, 2017, forward, the Veteran's service-connected MDD has caused occupational and social impairment, with deficiencies in most areas, but has not resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent for MDD, but not higher, for the entire initial rating period, excluding the period from June 19, 2017 to August 1, 2017 during which a temporary total rating was assigned, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from July 1978 to May 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). Procedural History In September 2019, the Board denied service connection for PTSD and remanded the claim for an increased initial rating for MDD to afford the Veteran a new VA examination to determine the current severity of the disorder. The Veteran underwent a VA examination in December 2019 and the report of that examination, dated January 2020, is of record and has been reviewed. The Board finds substantial compliance with its September 2019 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Veteran appealed the portion of the September 2019 Board decision which denied service connection for PTSD to the United States Court of Appeals for Veterans Claims (Court), resulting in a December 2020 Joint Motion for Partial Remand (JMPR) by the parties on the basis that the Board failed to provide an adequate statement of reasons and bases for its decision. Specifically, the JMPR reflects agreement by the parties that the Board did not consider whether the Veteran's currently diagnosed PTSD is secondary to the Veteran's service-connected MDD. See JMPR filed December 22, 2020 at pgs. 2-3. A December 2020 Court Order remanded the PTSD claim pursuant to the terms of the JMPR. The Veteran's PTSD claim is addressed in the Remand section herein. Based on the foregoing, the Board has recharacterized the issue of entitlement to service connection for PTSD to include as secondary to the service-connected MDD, as shown on the title page herein. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The issue of unemployability has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (holding that a request for a TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, can be part of a claim for increased compensation); see also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (holding that a separate, formal claim is not required in cases where an informal claim for TDIU has been reasonably raised). In light of the Court's holding in Rice and the evidence of record, the Board considers an inferred TDIU claim as part of his pending increased rating claim, and it has accordingly been listed as an issue on the title page of this decision. Preliminary Matter The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which rating to apply to a veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the probative value of a medical opinion, the Board will assess whether (1) the medical opinion is based on sufficient facts and data, (2) the medical opinion is the product of reliable principles and methods, and (3) the medical expert has applied the principles and methods reliably to the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). Specifically, the Board will determine whether the medical expert was aware of the critical medical facts in the Veteran's medical history and whether the expert provided the sort of factually accurate, fully articulated, and sound reasoning for the opinion that allows the Board to assess whether the expert applied valid medical analysis to the facts of the particular case. Id. at 303-05. As with all evidence, it is the responsibility of the Board to weigh conflicting medical evidence to reach a conclusion as to the ultimate grant of benefits. Nieves-Rodriguez, 22 Vet. App. at 300; Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). In doing so, equal weight is not accorded to each piece of evidence in the record as every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert, 1 Vet. App. at 53; see also 38 U.S.C. § 5107; 38 C.F.R. § 4.3. Rating Schedule The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under DC 9434, a 50 percent rating under DC 9434 is warranted 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. Id. A 70 percent rating is warranted if the evidence establishes there is 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 work like setting); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted 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. In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV or DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. Mauerhan, 16 Vet. at 441-43. A temporary total rating may be assigned pursuant to 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. Pursuant to 38 C.F.R. § 4.29, a total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. Subject to the provisions of paragraphs (d), (e), and (f) of § 4.29, this increased rating will be effective the first day of continuous hospitalization and will be terminated effective the last day of the month of hospital discharge (regular discharge or release to non-bed care) or effective the last day of the month of termination of treatment or observation for the service-connected disability. 38 C.F.R. § 4.29(a). The Board notes that DSM-5 applies to appeals certified to the Board after August 4, 2014. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). While DSM-IV was technically in effect during the pendency of the Veteran's claim, the appeal was certified to the Board in April 2017. The Veteran is not prejudiced by the use of DSM-5 for the entire rating period as the examination reports contains sufficient descriptions of the frequency and severity of his symptoms so as to assign the appropriate rating. Analysis The RO has assigned an initial 50 percent disability rating for the Veteran's MDD under Diagnostic Code (DC) 9434 on the basis of occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130, DC 9434 (2020). The Veteran claims that a higher rating is warranted. Turning to the record, state Department of Corrections (DOC) treatment records dated August 2010 that the Veteran was placed under mental health observation as a precautionary measure after his trial ended in a hung jury. He endorsed suicidal ideation and he went on a hunger strike, apparently over his dissatisfaction with incarceration in a facility not located near his family. It was separately noted that the Veteran had anxiety and depression. VDOC treatment records dated May 2011 reflect that a change in the Veteran's behavior was noted and he was placed under mental health observation. In August 2011, the Veteran reported being upset over legal matters and an argument with his wife over not accepting a plea deal. It was noted that the Veteran endorsed suicidal ideation. VDOC treatment notes dated September 2011 reflect a diagnosis of depressive disorder. Private treatment notes dated October 2012 show that the Veteran denied suicidal ideation at that time but endorsed past suicidal thoughts in 2009. Denied history auditory or visual hallucinations, or delusions. No evidence of psychotic thought process. Private hospital emergency room treatment notes dated December 2014 reflect that the Veteran was suffering from anxiety and depression three days after he underwent hand surgery. The Veteran endorsed suicidal ideation. The diagnosis was depression and suicidal ideation. The Veteran was incarcerated again in January 2015 apparently due to noncompliance with the terms of probation and underwent a mental health evaluation. VDOC evaluation notes from January 2015 reflect that the Veteran was oriented to person, place, purpose, and time. His appearance and speech were appropriate. His mood was anxious, and his affect was appropriate to his mood. His thought content was appropriate and coherent, and his memory was intact. His insight and judgment were good. The Veteran endorsed suicidal ideation but had no plan or intent to act upon it. May 2015 VDOC treatment records reflect that the Veteran was irritable, anxious, and depressed. His appearance was within normal limits. His speech was clear and within normal limits. He did not endorse suicidal or homicidal ideation and he was negative for signs of psychosis or delusional thinking. He became exasperated with the interview and abruptly left the office. The record reflects that the Veteran was released from incarceration in August 2015. During an August 2015 VA outpatient appointment, the Veteran presented with depressed mood and congruent affect. He said he experienced suicidal thoughts during the night when he is unable to sleep and experiences feelings of desperation due to insomnia. Later that month, the Veteran's spouse reported to VA caregivers that the Veteran seemed to "be going downhill" and was isolating himself from the family in one room of their home. The Veteran said he was very stressed after his release from incarceration, including over the terms of his probation, which restricted his movements and activities. He said she was unable to sleep and was feeling very depressed. In March 2016, the Veteran underwent a VA mental disorders examination, at which time the VA examiner MDD and PTSD. The VA examiner said it was possible to differentiate symptoms between the two disorders, attributing to MDD: the Veteran's feelings of being depressed, hopeless, and feeling bad about himself more than half the days; and feeling tired, having appetite issues, and thoughts that he would be better off dead several days. The examiner attributed to PTSD: repeated memories of being shot by a police officer and being physically assaulted in jail; repeated memories, dreams, and physical reactions to of the shooting and assault; emotional numbness and feeling distant from others; avoidance of thoughts and reminders of the traumatic events; and impaired sleep and hypervigilance. The examiner noted that the Veteran's feeling little interest in things, sleep impairment, and impaired concentration were common to both disorders. In terms of social impairment, the examiner noted that the Veteran grew up in a home with lots of conflict. He had a child with his first wife and several children with his second wife. He described his marriage as successful. In terms of occupational impairment, the examiner noted that the Veteran completed two years of college chemical engineering curriculum when he dropped out after the dissolution of his marriage. He later attended pharmacy school and worked as a pharmacy technician and then as a pharmacist, and then started a pharmacy staffing company with several pharmacist employees. The examination report reflects that the Veteran said in 2008 police were called to his home and found the Veteran with a gun and he was shot by police. He was convicted on a criminal charge and spent several years in jail. He said he has not worked since his release from incarceration. On examination, the Veteran was dressed and groomed appropriately. His affect was flat, but he was easily engageable, spontaneous, and cooperative. The examiner identified symptoms of depressed mood; anxiety; suspiciousness; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that the Veteran's MDD and PTSD resulted in occupational and social impairment with reduced reliability and productivity due to flattened affect, disturbances of mood and motivation, panic attacks more than once a week, and difficulty establishing and maintaining effective work and social relationships, which she noted resulted from both MDD and PTSD. Notably, the examiner opined that the severity of the Veteran's MDD was moderate rather than severe due to medication. The examiner determined that the Veteran was capable of handling his financial affairs. See VA mental disorders examination dated March 17, 2016. Private treatment records dated July 2016 note that the Veteran endorsed suicidal ideation. In late July 2016, the Veteran was taken by his spouse to a VA medical facility after endorsing suicidal ideation and telling her "I just don't want to do it anymore." The Veteran reported to care-givers that he aborted a suicide attempt a week earlier and said, "There is such a thing as a life not worth living." It was noted that he was devoid of hope and not future oriented. The Veteran said he had been waking up "in [a] panic/high anxiety state." The Veteran was admitted for in-patient treatment for depression and suicidal ideation for two weeks. The week following discharge, he was readmitted for inpatient treatment for depression for an additional two weeks. VA treatment records reflect that the Veteran's treatment during this period included multiple electroconvulsive therapy (ECT) treatments. See, e.g., VA discharge summary dated August 11, 2016. November 2016 VA treatment records reflect that the Veteran was oriented to person, place, and time. He was appropriately dressed, and he had good hygiene. He was negative for any obvious psychomotor agitation. His speech was spontaneous and of regular rate and volume. The Veteran's mood was depressed, and his affect was euthymic. His thought process was goal-directed, linear, and logical, and his thought content was negative for paranoia, obsessions, and compulsions. His judgment was fair, and his insight was good. He endorsed short term memory loss. He denied suicidal and homicidal ideations. The Veteran denied visual hallucinations and no delusions were evident. The Veteran was able to perform activities of daily living adequately. During a March 2017 VA outpatient mental health counseling appointment, the Veteran presented with depressed mood and he endorsed suicidal ideation; however, no acute safety concerns were indicated. During a VA counseling session in April 2017, the Veteran denied suicidal ideation, but said he perceived himself as "on the edge" and that it wouldn't take a lot for him to feel suicidal gain. He said he experienced suicidal ideation the previous week after not sleeping for two days. Later that month, the Veteran was placed on the high risk list for suicide. In June 2017, the Veteran presented to a VA emergency department reporting that he had worsening depression and suicidal ideation for three weeks after his wife told him she was leaving him. He went on a motorcycle trip to Colorado hoping this would help "clear his head" but his mood worsened during the trip and he stopped taking his medication. He made it as far as Missouri when he turned around and went home. His spouse told a VA caregiver she has never seen him this bad. The Veteran was hospitalized on June 19, 2017 for approximately six weeks at a VA medical facility for stabilization, medication optimization, and treatment for depression and suicidal ideation. The Veteran received ECT treatments during this period and it was noted that ECT treatment was to continue at two week intervals, if possible, after discharge on August 1, 2017. See VA mental health note dated July 24, 2017. As a result of his hospitalization from June 19, 2017 to August 1, 2017, a temporary total disability rating (100 percent) was assigned for that period as provided for under 38 C.F.R. § 4.29. See Rating Decision dated August 1, 2017. A March 2018 VA psychology evaluation reflects that the Veteran denied suicidal ideation, but then said he had a "passive death wish" and some active ideation about it, without specific planning and with emphatic denial of intent to carry it out due to his desire to care for his ailing mother. August 2018 VA outpatient notes show that the Veteran was brought to a VA medical facility after he shared thoughts of turning his motorcycle on in his garage and going to sleep. The Veteran told a caregiver that he had experienced worsening depression since February 2018 and suicidal ideation in the context of psychosocial stressors that worsened significantly in May. He endorsed depressed mood, anhedonia, feelings of hopelessness and helplessness. He said he experienced suicidal ideations occurring "all the time" with thoughts of "turning on a car in the garage and going to sleep." The Veteran denied audio/visual hallucinations. It was noted that the Veteran was compliant with his medication regimen. The diagnoses were MDD, persistent depressive disorder, and PTSD. The Veteran was admitted for in-patient psychiatric treatment to include ECT treatments. Memory deficits were indicated during diagnostic testing. After two ECT treatments, the Veteran declined further treatments and requested discharge. A VA psychiatrist concluded that the Veteran's suicidal ideation had resolved, but noted that the Veteran suffered from severe, recurrent episodes of major depressive disorder which was not responsive to the Veteran's current medication regimen. The Veteran was discharged after 10 days of hospitalization. During a VA outpatient appointment in May 2019, the Veteran endorsed recent suicidal ideation without plan or intent, and he reported continuing sleep impairment. He denied delusional constructs and hallucinations. His judgment was characterized as fair. The following month, the Veteran denied experiencing suicidal ideation for two weeks during an emergency room visit. In September 2019, the Veteran attended a VA follow up psychiatric appointment, endorsing periods of stable mood with periods of feeling more depressed for several days at a time. He continued to have intermittent passive thoughts of death, which he said had decreased in frequency and that he experienced less depression since starting the medication Latuda. The VA psychiatrist assessed the Veteran's suicide risk as low. On examination, the Veteran was oriented to person, place, and time. His speech was normal, his mood was "OK," and his affect was constricted, not labile. His thought process was organized, logical, and goal-directed. His insight and judgment were fair. He was negative for delusional constructs and hallucinations. In December 2019, the Veteran underwent a VA mental disorders examination, at which time the VA examiner diagnosed MDD. The Veteran said, "my life revolves around the depression; it's just taken over." In terms of social impairment, the examiner noted that the Veteran lives with his wife and 18-year-old adopted daughter. He described his relationship with his wife and three adult children as good. But he said he has no friends. In terms of occupational impairment, the examiner noted that the Veteran remained unemployed since the previous VA examination in 2016 and receives Social Security Administration disability benefits for depression. On examination, the Veteran was alert and oriented in all spheres. He was clean, adequately groomed and appropriately dressed. His mood was dysphoric, and his affect was full and appropriate. His speech rate and tone were unremarkable. His thought content and progression were unimpaired. He had no difficulty understanding complex commands. He was negative for inappropriate behavior, gross impairment in thought processes, hallucinations, and delusions. The examiner noted that there was no evidence suggesting that the Veteran has difficulty with attention and concentration during the examination, and his memory was within normal limits. His insight and judgment were fair, and his abstract reasoning was within normal limits. The Veteran denied suicidal and homicidal ideation during the examination. The Veteran denied psychosis, obsessions, compulsions, and impaired impulse control such as unprovoked irritability with periods of violence. The examiner concluded that the Veteran's ability to perform activities of daily living was not impacted by his mental disorder. The examiner identified symptoms of depressed mood; anxiety; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran experienced panic attacks at least once a week lasting 15-20 minutes. Additional symptoms included depression, markedly diminished interest or pleasure in activities, lack of appetite, insomnia, fatigue, feelings of worthlessness, diminished ability to think or concentrate, and recurrent thoughts of death or suicidal ideation. The examiner concluded that the Veteran's MDD resulted in occupational and social impairment with reduced reliability and productivity. The examiner determined that the Veteran was capable of handling his financial affairs. See VA mental disorders examination dated January 8, 2020. During a May 2020 VA outpatient appointment, the Veteran was oriented to person, place, and time. His appearance and speech were normal. His mood was described as "OK" and his affect was constricted, not labile. His thought process was organized, logical, and goal-directed. The Veteran endorsed intermittent suicidal ideations without plan or intent. He denied homicidal ideation. He was negative for delusions and hallucinations. His judgment was fair. No psychotic symptoms were observed. The Veteran endorsed short term memory loss. In early December 2020, the Veteran experienced worsening depression and anxiety, and verbalized suicidal ideation with a plan to poison himself with carbon monoxide. He was admitted overnight and the next day denied suicidal ideation, delusions, and hallucinations. On examination, the Veteran was alert and oriented to person, place, and time. His speech was normal, his mood was "down" but manageable, and his affect was congruent with his mood. His thought processes were logical and coherent, and his thought content was appropriate for the situation and negative for delusions and hallucinations. His insight and judgment were fair. Two days later, he presented to a VA clinic voicing suicidal ideation and plan. He was taken to a non-VA medical center emergency department. Upon evaluation, he denied auditory and visual hallucinations and there was no evidence of delusions. He endorsed a depressed mood. The diagnosis was MDD and suicidal ideation. He was discharged the same day with medication. Upon review of all the evidence, both lay and medical, the Board finds that the Veteran's MDD symptoms approximate an initial disability rating of 70 percent for the entire initial rating period. During this time period, the Veteran's MDD primarily manifested in occupational and social impairment, with deficiencies in most areas such as mood, recurrent suicidal ideation, and near-continuous depression. Additionally, the March 2016 and the December 2019 VA examiners each identified symptoms related to the Veteran's MDD of near-continuous panic, which is contemplated by the criteria for a 70 percent rating. 38 C.F.R. § 4.3. Notably, the Veteran's treatment records are replete with references to episodes of recurrent suicidal ideation. Id. The Veteran's other symptoms throughout the period on appeal include chronic depression, chronic sleep impairment, and difficulty establishing and maintaining effective relationships. Nonetheless, the Veteran has not displayed gross impairment in thought processes or communication; persistent delusions or hallucinations; inability to remember his own name; or grossly inappropriate behavior. His treatment records show that the Veteran has routinely appeared oriented during examinations, and his concentration, judgment and insight have generally been found to be intact. Additionally, he has not had a loss of remembering his own name. As such, a disability rating of 100 percent is not approximated. 38 C.F.R. § 4.130. While the March 2016 and December 2019 VA examinations reflect less severe occupational and social impairment due to the Veteran's MDD and PTSD symptoms, in this regard the VA examiners' conclusions are inconsistent with the record and the history of the Veteran's symptoms credibly related by the Veteran and his spouse and amply reflected in the treatment records and evaluations by private and VA treating physicians. Accordingly, the Board finds that the evidence of record, as a whole, supports the conclusion that the Veteran is entitled to an initial disability rating of 70 percent, but not higher, for MDD. 38 C.F.R. § 4.130, DC 9434. Finally, 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, 69-70 (2017). REASONS FOR REMAND PTSD The Board's September 2019 decision conceded a PTSD diagnosis; however, that finding is not binding in this case as the decision was subsequently vacated by the December 2020 Court Order. Moreover, the December 2020 JMPR approved by the Court provides that the Board may "seek any other evidence" necessary for adjudication of the Veteran's claim. See JMPR filed December 22, 2020 at pg. 4. The March 2016 VA mental disorders examination reflects a diagnosis of MDD, and a diagnosis of PTSD related to "being shot by a police officer and being physically assaulted in prison." See VA mental disorders examination dated March 17, 2016 at pg. 1. However, it is not clear from the March 2016 VA medical opinion whether the stressors were related to his service-connected MDD or psychotic symptoms, or both. See VA medical opinion dated March 17, 2016 at pgs. 2-3. See Nieves-Rodriguez, 22 Vet. App at 304 (the probative value of a medical opinion comes from its being factually accurate, fully articulated, and having a sound reasoning for the conclusion). Additionally, it is not clear from the record, including the March 2016 VA examination, that the Veteran has been clinically diagnosed with PTSD pursuant to DSM-5. 38 C.F.R. § 4.125(a). While the March 2016 VA examination suggests a clinical diagnosis of PTSD, the January 2020 VA examination report merely notes a PTSD diagnosis "by history," which suggests that such diagnosis is indicated by the record but not diagnostically verified. Notably, to date, the Veteran has not been afforded a VA PTSD compensation and pension examination. Accordingly, to ensure that the Board's evaluation of the Veteran's claim is a fully informed one, remand is necessary to provide the Veteran with a VA PTSD examination and obtain an etiology opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). TDIU Lastly, as noted, entitlement to a TDIU has been raised by the record. Rice, supra. However, the Veteran has not yet been sent notice for his TDIU claim, has not completed a TDIU form, and the issue has not yet been addressed by the AOJ. Therefore, on remand, the AOJ should comply with the duties to notify and assist in connection with the Veteran's TDIU claim. Further, the issue of entitlement to a TDIU is intertwined with the increased rating claim being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Implement the Board's decision herein granting a 70 percent initial rating for the service-connected major depressive disorder. 2. Ensure that all outstanding VA treatment records are associated with the claims file. 3. Provide the Veteran appropriate notice in connection with the inferred claim for TDIU. The Veteran should be requested to complete and submit an Application for Increased Compensation based on Unemployability (VA Form 21-8940), and the RO should undertake all further appropriate actions for development of this claim. 4. Then, provide the Veteran with appropriate VA examinations, to include a VA PTSD examination, by the same VA examiner, if available, who conducted the March 2016 VA mental disorders examination. If the same examiner is not available, provide an examination by an appropriately qualified VA psychiatrist or psychologist. The claims file, and a copy of this Remand, must be made available to, and be reviewed by, the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Identify all currently diagnosed psychiatric disorders that have been present at any point during the appeal period, which commenced in May 2011, to specifically include PTSD. (b) Provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that each currently diagnosed psychiatric disorder, to include PTSD (if diagnosed) was CAUSED or AGGRAVATED by the service-connected major depressive disorder. *The examiner shall RECONCILE the opinion provided with the March 17, 2016 VA Medical Opinion that states, in part, that the Veteran was suffering from a serious bout of depression and may have had a psychotic blackout in 2008 when he was shot by police, and that event and physical assault in prison caused his PTSD (see VBMS entry with document type "C&P Exam," receipt date 03/17/2016, at pages 2-3). (c) For all currently diagnosed psychiatric disorders for which the answer to (b), above, is negative, provide an opinion as to whether it at least as likely as not (50 percent or greater probability) that the disorder had its onset during active duty service, manifested within one year after service separation, or is otherwise casually or etiologically related to it. The examiner must provide a complete rationale for all opinions proffered. 5. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. After completing any additional development deemed necessary, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, Associate 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.