Citation Nr: 1007287 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 99-16 014A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to compensation benefits under 38 U.S.C.A. § 1151 for residuals of infections of the left hip. REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to April 1967, and from March 1968 to September 1971. This appeal comes to the Board of Veterans' Appeals (Board) from an April 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2002, the Veteran appeared at the RO and offered testimony at a hearing held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that this matter was previously before the Board, and adjudicated in a decision dated in May 2004. In that decision, the Board denied the claim. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (the Court). In an Order dated in January 2007, the Court granted a Joint Motion of the parties to vacate the Board's May 2004 decision and remand it back to the Board for development consistent with the Joint Motion. Pertinently, the Joint Motion stipulated that VA violated its duty to assist by failing to take appropriate steps to locate and obtain a computer record from VA physician, Dr. Nevan G. Baldwin, who is alleged to have stated that the Veteran's infections were attributable to VA treatment. After conducting development pursuant to the Joint Motion, the Board thereafter denied the claim in a December 2008 decision. The Veteran appealed that decision to the Court; and in an August 2009 Order, pursuant to a Joint Motion, the Court remanded the matter to the Board for action to comply with the Joint Motion. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The Board finds that a remand is necessary to properly adjudicate the Veteran's claim of entitlement to compensation benefits under 38 U.S.C.A. § 1151 for residuals of infections of the left hip. In the recent Joint Motion, the parties stipulated that "the Board failed to ensure compliance with its August 2007 remand instructions regarding obtaining a current address for VA physician Dr. Nevan Baldwin, so that treatment records could be obtained. Specifically, although the RO indicated that it had contacted the Compensation and Pension Unit Coordinator at the Albuquerque VA Medical Center (VAMC), who checked the employee directory and could not find this physician, no effort was made to determine whether "the hospital" had a current address for Dr. Baldwin, or to look outside the VAMC database. The parties further noted that the RO did not notify the Veteran that it could not locate Dr. Baldwin's address, and that remand was necessary to ensure compliance with VA's duties to notify and assist. The Board is bound by the findings contained in the Joint Motion, as adopted by the Court. See Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) [under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim]. The Court has held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Joint Motion does not address any possible privacy violations concerning the doctor in question. Accordingly, the case is REMANDED for the following action: 1. Make as many requests as are necessary to the VAMC in Albuquerque to obtain the current address for Dr. Nevan Baldwin, who it is claimed treated the Veteran at the VAMC in Albuquerque, in 1998. Also, make reasonable efforts to obtain this information from other sources, as appropriate (outside the VAMC database). (The Board makes no determination regarding privacy issues.) If the address cannot be obtained, notify the Veteran of this fact, explain the efforts VA made to obtain the address, describe any further action VA will take regarding the claim, including, but not limited to, notice that VA will decide the claim based on the evidence of record unless he provides the address; and notify him that he is ultimately responsible for providing this evidence. Also, provide certification in the claims file that the records sought do not exist or that further efforts to obtain those records would be futile. If the address is obtained, notify the Veteran of this fact, and request that he provide a suitable release. Then request of Dr. Baldwin that he provide a statement as to the cause of the chronic infections of the left hip. Specifically, the doctor should render an opinion, consistent with the record and with sound medical judgment, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the infections in the left hip were caused or aggravated by the surgical procedures in 1993 and 1994. The doctor should further opine whether the proximate cause of such additional disability was (a) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in performing the ilioplasty in August 1994, or (b) an event not reasonably foreseeable. 2. Then, readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, he and his attorney should be provided a supplemental statement of the case. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).