Citation Nr: 1632882 Decision Date: 08/18/16 Archive Date: 08/26/16 DOCKET NO. 10-12 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Hampton, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1986 to April 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veterans Law Judge at his local RO (Travel Board hearing) in February 2015. A transcript of the hearing is of record. When this case was before the Board in October 2015, it was remanded for additional development. The case is now again before the Board for further appellate action. The record before the Board consists of electronic records within Virtual VA and the Veterans Benefits Management System. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (6). REMAND In its October 2015 remand, the Board noted the Veteran's last VA examination was conducted in 2006. As such, the Board instructed the RO or the Appeals Management Center (AMC) to afford the Veteran a VA examination to determine the impact of his service-connected disabilities on his employability. The Veteran was subsequently scheduled for a VA examination in February 2016, but he did not appear for the examination. In a June 2016 correspondence, the Veteran stated that he was admitted into the Orlando Regional Medical Center on January 25, 2016, for multiple acute conditions, and was not discharged until March 4, 2016. Therefore, he stated, he was simply unable to make his VA examination appointment. Subsequently, treatment notes were obtained from the Orlando VA Medical Center (VAMC) showing the Veteran was admitted to the hospital there on January 25, 2016, and discharged on March 4, 2016. The Board notes that VA's duty to assist a veteran in developing the facts and evidence pertinent to his or her claim is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is the responsibility of veterans to cooperate with VA. See Caffrey v. Brown, 6 Vet. App. 377, 383 (1994); Olson v. Principi, 3 Vet. App. 480, 483 (1992). However, upon a review of the foregoing facts, the Board finds that good cause has been shown for the Veteran's failure to report to his scheduled VA examination. Specifically, the Board finds that the Veteran's hospitalization from January 2016 to March 2016 constitutes good cause. Accordingly, a remand to afford the Veteran a VA examination to determine the impact of his service-connected disabilities on his employability is in order. On remand, relevant ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, this case is REMANDED to the RO or the AMC in Washington, D.C., for the following actions: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Then, the RO or the AMC should afford the Veteran an appropriate VA examination or examinations to determine the impact his service-connected disabilities have on his employability. All pertinent evidence of record must be made available to and reviewed by the examiner or examiners. Any indicated tests and studies should be performed. The examiner or examiners should provide an assessment of the functional effects of the service-connected disabilities in an occupational setting, to include an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the service-connected disabilities are sufficient by themselves to render the Veteran unemployable. If the examiner or examiners determine the service-connected disabilities are not sufficient by themselves to render the Veteran unemployable, the types of substantially gainful employment that are not precluded should be identified. The examiner or examiners must provide a rationale for any proffered opinion. If the examiner or examiners are unable to provide any required opinion, they should explain why. If the examiner or examiners cannot provide an opinion without resorting to mere speculation, they shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner or examiners should identify the additional information that is needed. 3. The RO or the AMC should also undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). As noted above this case has been advanced on the Board's docket. It also must be handled in an expeditious manner by the RO or the AMC. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).