Citation Nr: 18143705 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 15-07 842 DATE: October 23, 2018 ORDER The issue of entitlement to a total disability rating for compensation based on individual unemployability (TDIU) is dismissed. REMANDED Service connection for a psychiatric disorder is remanded. Service connection for liver disease is remanded. Service connection for spleen disorder is remanded. Service connection for alcohol abuse is remanded.   FINDING OF FACT The Veteran is not service connected for any disabilities. CONCLUSION OF LAW The claim for TDIU is dismissed as moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1962 to January 1963. The case is on appeal from an October 2014 rating decision. In March 2018, the Veteran testified at a Travel Board hearing. 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). Entitlement to a TDIU. A TDIU may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to preclude securing or following substantially gainful employment without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). In this case, the Veteran is not service connected for any disabilities at present. Accordingly, there is no legal basis to consider assignment of a TDIU. See 38 C.F.R. § 4.16. Consequently, the appeal for a TDIU must be dismissed as consideration for a TDIU is a downstream issue. Should any disabilities be service connected at a later date, he may seek a TDIU at such time. REASONS FOR REMAND 1. Service connection for a psychiatric disorder. 2. Service connection for liver disease. 3. Service connection for spleen disorder. 4. Service connection for alcohol abuse. The Veteran seeks service connection for a psychiatric disorder, and for associated alcohol abuse, liver disease, and spleen disease. He points out that he left high school and entered the Air Force at a very young age, and maintains that he intended to make a career of the service. He adds that he felt targeted by his Training Instructor during service; was made to feel worthless and unwanted by this individual; and was driven out of service against his will. Military records confirm that the Veteran entered active duty service on November 30, 1962 - exactly 8 days after his 17th birthday; and that he was Honorably separated from service approximately 8 weeks later. Military records also show that the Veteran was written up for poor performance by his Basic Training instructor that time, and that the Veteran complained of worry, anxiety, and severe headaches during that time. There is also an entry which reads “has been to MHC for counseling,” although the respective records are not in the claims file. In October 2013, the Veteran reported to VA for mental health treatment. Clinical diagnosis at that time was Depressive Disorder, NOS. See also VA mental health treatment records dated in September 2014, which confirm that the Veteran was administered treatment (including prescription medications and psychotherapy) for anxiety and depression. In November 2013, a VA psychologist (Dr. K.M.M.) averred it appears that Depressive Disorder, NOS would be the most appropriate diagnosis at this time. It appears that this concern may be related to genetic factors as vt has a substance abuse history in his family of origin. However, developmental (i.e., physical abuse, discharge from the Air Force) and psychosocial stressors (i.e., medical problems, wife’s medical situation) likely influence this concern as well. In January 2014, the Veteran filed his claim for service connection for “depression - anxiety.” In October 2014, the claim was denied. In September 2015, the Veteran was afforded a VA mental disorders examination. In the ensuing report the examiner noted that the Veteran had been treated by Dr. K.M.M. for symptoms of depression, diagnosed as Depressive Disorder NOS. and that Dr. K.M.M had stated that “developmental issues (i.e., physical abuse, discharge from the Air Force) . . . likely influence this concern as well.” The examiner also noted that another treating psychologist (Dr. N.L.D) had commented that the Veteran was frustrated not knowing why he was discharged, whereupon the examiner declared “It is clear from his Discharge Summary that he was discharged for ‘excessive demerits (e.g., being dirty, not changing clothes, not shaving, not keeping barracks clean.’ When I presented this to the Veteran, he was aware of what was written about him and he told me ‘that those were lies.’” The examiner declared that the Veteran “never received any formal mental health counseling during his two months in the military.” The examiner also remarked that when he asked the Veteran why he did not seek mental health counseling until October 2013, the Veteran responded that he did not know that he might be eligible for services. The examiner then averred as follows: With the above comments in mind and the comments made in the Rating Decision (October 27, 2014), there is not any additional information that I gathered today (September 14, 2015) for me to overrule or disagree with what was ruled in that decision with regard to service connection for depression and anxiety, alcohol use disorder. The examiner did not acknowledge that the claims file was reviewed. See September 2015 VA examination report, p. 2. Moreover, the examiner provided no rationale for his opinion that the Veteran’s depression was not related to service, but instead impermissibly engaged in the decision making process when he stated “there is not any additional information that I gathered today (September 14, 2015) for me to overrule or disagree with what was ruled in [the October 2014 rating decision] with regard to service connection for depression and anxiety, alcohol use disorder.” Significantly, the examiner did not discuss whether the Veteran’s articulated worry and anxiety during service, and/or the behaviors the Veteran exhibited during service, may have been manifestations of the Veteran’s currently diagnosed Depressive Disorder or some other clinical disorder. Remand for a new VA examination is warranted. On remand, a request should be made for the Veteran’s active duty mental health records. The intertwined issues of service connection for associated alcoholism, liver disease, and spleen disease are also remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Make a request for the Veteran’s active duty Mental Health Clinic records and associate them with the claims file. Document all efforts to obtain these records. If no records are found, make a formal finding for the record. 2. Schedule the Veteran for a VA examination with regard to his claim of service connection for a psychiatric disorder by a new examiner. The examiner must review the file. The examiner should also discuss the Veteran’s in-service and current complaints and symptoms with the Veteran and document the Veteran’s assertions in the examination report. After clinical assessment opine, for each psychiatric disorder found on examination and in prior medical records (including depressive disorder and anxiety), whether it is at least as likely as not (50 percent or greater probability) that the disorder began during active duty service or, if the disorder began after service, is related to service. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel