Citation Nr: 21063150 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 17-36 343A DATE: October 13, 2021 ORDER The appeal for entitlement to a total disability rating based on an individual unemployability (TDIU) due to service-connected disabilities is dismissed. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to service connection for heart palpitations is remanded. Entitlement to service connection for alcohol abuse (also claimed as pancreatitis) is remanded. Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and depressive disorder (acquired psychiatric disability), is remanded. FINDING OF FACT The Veteran does not receive disability compensation for any disabilities. Hence, his application for a total disability evaluation due to service-connected disability is premature. CONCLUSION OF LAW There is no question of law or fact pertaining to an increased-rating based TDIU claim and the claim must be dismissed. 38 U.S.C. § 7105(d); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 2002 to November 2003; and from May 2007 to May 2008, with additional unverified periods of service in active duty for training (ACTDUTRA) and inactive duty for training (INACTDUTRA) in the United States Marine Corps Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas. As a preliminary matter, the Board notes that the April 2014 rating decision initially denied the service connection claims for necrotizing pancreatitis and alcohol abuse as two separate, distinct claims. In a May 2014 notice of disagreement to this rating decision, however, the Veteran clarified that his claim for alcohol abuse is the same as his claim for pancreatitis. Thus, the service connection claims for alcohol abuse and necrotizing pancreatitis are merged, and more appropriately, recharacterized as a service connection claim for alcohol abuse (also claimed as necrotizing pancreatitis). TDIU The Veteran asserts that he is unable to secure or follow any substantially gainful occupation due to his surgical abdominal wound/pancreatitis condition. See November 2013 TDIU Application; see also November 2013 Correspondence. Entitlement to a TDIU is warranted where the evidence demonstrates that a veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified that a claim for a TDIU is part of an increased rating claim, when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, however, the Veteran does not have any pending increased rating claims, nor is he service-connected for any disabilities. The Board clarifies that while he has service connection claims that are pending on appeal (as indicated above and below), TDIU is not an independent claim, but rather, it is another type of increased rating claim that is a means to receiving a higher rating. See Rice, 22 Vet. App. at 453. Thus, as the Board finds that there is no legal basis from which the Veteran may establish a claim of entitlement to a TDIU, this claim must be dismissed. See Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND The Board regrets further delay, as additional developments are necessary before it may render a decision on all of the remaining issues on appeal. Unfortunately, the above-mentioned claims are premature for an adjudication as there are outstanding service and post-service records that have not yet been associated with the claims file. The claims file indicates that the Veteran served during additional periods of service in the United States Marine Corps Reserve, at some time shortly prior to his enlistment into active service in the Marine Corps in December 2002. A September 2013 e-mail to Records Management Center indicates that the Regional Office requested for service treatment records (STRs) from his active period of service in the Marines, from December 2002 to December 2008; and a December 2017 VA form 21-3101 (Request for Information ) form indicates that the Regional Office requested Reserve records, to include the period of service from January 2008 to December 2010, with an unknown status of the Veteran's character of discharge. A December 2017 response to this request indicated that the request for STRs had not been processed; the Regional Office was to verify whether the records were previously requested, based on the given dates of service, with a previous response provided by the appropriate office. However, there is no indication that the Regional Office undertook a follow up to verify whether they requested and received all of the STRs, nor does the claims file suggest that the Veteran's STRs from his period of service in the Reserves have been associated with the claims file. Rather, STRs in the claim file are from the Veteran's period of active service in the Marine Corps, from the period of 2002 to 2008. Additionally, the Veteran reported that he was participating in an inpatient PTSD program at the VA Bonham medical center; and he requested that the Regional Office obtain his medical records from this VA facility. However, it does not appear that the Regional Office acknowledged and/or undertook a follow up to obtain these outstanding treatment records. Further, post- service treatment records have not been updated to the claims file since approximately 2018. Thus, as these records may be potentially relevant to the outcome of the Veteran's claims, a remand is required for the Regional Office to obtain all outstanding records. The matters are REMANDED for the following action: 1. Contact the requisite sources and obtain all service treatment and personnel records from the Veteran's period of service in the Marine Corps Reserve, from the period prior to December 2002 and the period of January 2008 to December 2010. 2. Also, obtain all outstanding and/or updated VA treatment records, especially including, but not limited to, treatment records from the VA Bonham Medical Center. 3. All attempts to fulfill the development specified above, including the mandatory responses to the requests, must be documented in the claims file. 4. If, after making as many requests as are necessary to obtain these records it is determined that the records sought do not exist or that further efforts to obtain these records would be futile, the Regional Office must issue a Formal Finding on the Unavailability of Records Memorandum. 5. Thereafter, verify all periods of the Veteran's service in the Marine Corps Reserve in active duty, ACTDUTRA, and INACTDUTRA. 6. Then, after updating the claims file with all outstanding records, schedule the Veteran for a VA examination for mental conditions. The VA examiner must review a complete claims file and must note that review in the report. A copy of this REMAND must also be provided to the VA examiner. The VA examiner must undertake the following: a. Clarify whether the Veteran is diagnosed with PTSD. If there are any discrepancies with other treatment records that may indicate that the Veteran has PTSD diagnosis, please explain the discrepancy, with a clear rationale. b. Also, identify all of the Veteran's psychiatric disabilities. c. For each psychiatric disability, opine whether it is at least as likely as not (more than 50 percent probability) the pertinent disability was incurred in service; is the result of an illness, injury, or event in service; or is otherwise related to his active service. d. In rendering an opinion, please consider the Veteran's lay statements about onset, symptomatology, and/or any other related details about his psychiatric disability. e. A detailed explanation is requested for all opinions provided. If an opinion cannot be provided without resorting to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered. 7. Also, after updating the claims file with all outstanding records, undertake any necessary, additional developments that are collateral to the adjudication of the issues on appeal, including, for example, scheduling the Veteran for any other VA examinations. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V-N. Pratt 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.