Citation Nr: 21030901 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 09-14 708 DATE: May 19, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for Post-traumatic Stress Disorder (PTSD) with Major Depressive Disorder (MDD) is remanded. A total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1995 to August 1999, with subsequent reserve service. In June 2020, the Board granted a 10 percent rating, but no higher, for PTSD with MDD and denied entitlement to a TDIU. The Veteran then appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, pursuant to a January 2021 Joint Motion for Partial Remand (JMPR), the Court vacated the part of the June 2020 Board decision that denied entitlement to an initial disability rating in excess of 10 percent for service-connected PTSD with MDD and a TDIU. The Court did not disturb the favorable part of the Board decision, which granted an initial disability rating of 10 percent for the Veteran's service-connected PTSD with MDD. To the extent that the January 2021 JMPR identified deficiencies regarding the June 2020 Board decision, the Board has specifically addressed these below, including the additional development discussed within the Remand section. Entitlement to a disability rating in excess of 10 percent for post-traumatic stress disorder (PTSD) with major depressive disorder (MDD) Remand is necessary to comply with the instructions set forth in the January 2021 JMPR. As noted above, the parties agreed to a January 2021 JMPR, which has been ordered by the Court. Therein, the parties determined that the Board, in its June 2020 decision, erred in failing to acknowledge the favorable evidence of record, to specifically include a February 2020 private examination report. The parties also noted that the Board erred when little probative evidence was given to a March 2017 private examination report without addressing the Board's prior determination, in May 2017, that such opinion had "high probative weight." Notably, the parties also agreed that the Board, in its June 2020 decision, erred by finding that VA's duty to assist was satisfied. The parties noted that the VA examinations that the Board acknowledged, dated May 2011, July 2013, and September 2017, were inadequate. Specific to the September 2017 VA examination, the examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD which conflicted with VA's previous finding that he suffers from PTSD. Additionally, the September 2017 VA examiner indicated that the Veteran did not "have more than one mental disorder," while also stating that it was possible to differentiate what symptoms were attributable to each diagnosis. VA's duty to assist includes obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. Furthermore, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Given the above, an addendum opinion must be obtained upon remand. 1. A total disability rating based on individual unemployability due to a service-connected disability (TDIU) The Veteran's claim for TDIU is inextricably intertwined with his increased rating PTSD with MDD claim; therefore, the issue of entitlement to TDIU must be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding, relevant VA treatment records for the period from June 2003 to present and associate them with the claims file. 2. Obtain an addendum opinion by an appropriate clinician to determine the current severity of his service-connected PTSD with MDD. If possible, the examination should be conducted by a Board-certified psychiatrist or licensed psychologist. If the examiner deems that an examination is necessary, one should be scheduled. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. ** The examination report must include a discussion of the Veteran's documented medical history and assertions. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. **In providing the above opinion, the examiner is also asked to review the March 2017 and February 2020 private examination reports. 3. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson, 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.