Citation Nr: 1237269 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 05-35 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE What evaluation is warranted for residuals of a right hip injury from August 30, 2004? REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from March to October 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In September 2007, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2008, the Court granted a Joint Motion for Remand. After further development was conducted, the Board again denied the claim in December 2010. The Veteran again appealed to the Court, and in June 2011, the Court granted a new Joint Motion for Remand. In October 2011, the Board remanded the appeal for additional development consistent with the terms of the joint motion. The case has since returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The parties to the June 2011 joint motion agreed that VA's duty to assist was not satisfied and that the matter should be remanded to ensure that, pursuant to 38 C.F.R. § 3.159(c) (2012), private records were requested from Brockton Hospital. In October 2011, the Board directed the AMC/RO to "contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated her right hip disorder since November 2003." The Board further noted that it was particularly interested in securing November 2007 records from Brockton Hospital. The Court has held that a remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). On review, it is unclear whether the remand directives were followed. That is, the Board is unable to locate correspondence dated after the October 2011 remand that specifically asks the Veteran for the information in question. The claims file contains "page 3" of what appears to be a development letter signed by the Veterans Service Center Manager at the AMC and enclosed authorizations for release of records. Unfortunately, the Board is unable to locate the complete letter in either the claims folder or the Virtual VA eFolder. As such, the Board cannot tell whether the letter asked the claimant to identify relevant treatment and/or provide an authorization for records from Brockton Hospital. The September 2012 supplemental statement of the case does not list any recent development letter. While this document references a 2008 medical note from Brockton Hospital, it does not indicate whether additional records were requested from this facility or otherwise indicate that the Veteran failed to submit a current authorization for release of such records. The Board observes that there is a VA Medical Center in Brockton and there is also a private facility in Brockton (Brockton Hospital). The Board acknowledges that following the October 2011 remand, additional VA medical records and Social Security records were added to the claims folder. Additionally, the Veteran underwent a recent VA examination. Nonetheless, under the circumstances of this case, the Board must provide the Veteran with another opportunity to provide additional records, particularly the private Brockton Hospital records that were the subject of the previous joint motion. Stegall. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO must contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated her right hip disorder since 2003. The Veteran should specifically be asked to complete an authorization for release of any relevant treatment records from Brockton Hospital. After the Veteran has signed the appropriate releases, any records that have not been previously secured should be obtained and associated with the claims folder or Virtual VA eFolder. Duplicative records should not be added to the file. 2. If the AMC/RO cannot locate any Federal records requested herein, the AMC/RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AMC/RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the issue of what evaluation is warranted for residuals of a right hip injury from August 30, 2004. All applicable laws and regulations should be considered. If the benefit sought on appeal remains denied, the appellant and her representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DEREK R. BROWN 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) (2012).