Citation Nr: 18159487 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 17-21 405 DATE: December 19, 2018 REMANDED Entitlement to compensation under the provision of 38 U.S.C. 1151 for a disability claimed to due to a misdiagnosis of lung cancer and inadequate medical treatment at a VA facility is remanded. Entitlement to service connection for a lung disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1980 to May 1983. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Virginia. In January 2018, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran’s electronic claims folder. Entitlement to compensation under the provision of 38 U.S.C. 1151 for a disability claimed to due to a misdiagnosis of lung cancer and inadequate medical treatment at a VA facility; and entitlement to service connection for a lung disability and depression are remanded. The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 because he believes a VA doctor failed to diagnose him with lung cancer in 2014 and by the time he was diagnosed in 2016, he was forced to undergo a radical procedure, which included removal of part of his lung, rather than a less evasive procedure. He contends that but for the VA doctor’s failure to run appropriate tests earlier when he complained of difficulty breathing, his lung cancer would have been discovered earlier and he would not have had to have a resection of his lung. In March 2018, the Board remanded the matter for a medical opinion which addressed whether the VA’s failure to diagnosis the Veteran’s lung cancer in a timely fashion caused his ultimate resection of the left lower lobe nodule. In an October 2018 medical opinion, the specialist opined that it was less likely as not: (a) that the claimed disability of misdiagnosis of lung cancer/inadequate medical treatment at a VA facility was caused by or became worse as a result of VA treatment; (b) the additional disability resulted from the attending VA personnel’s failure to follow the appropriate standard of care; (c) the additional disability resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; and/or (d) failure on the part of VA to timely diagnose and/or properly treat the claimed disability allowed the disease or disability to continue progress. The specialist reasoned that although the Veteran complained of trouble breathing from 2014 to 2016; he was properly treated for his lung condition associated with smoking and was warned of the dangers of smoking, including developing lung cancer. Diagnostic testing during that period showed the presence of lung disease, but no evidence of cancer. The specialist further commented that a review of the record indicates that the Veteran received very thorough care and follow-up – no evidence of negligence. The Board finds that further medical clarification is needed prior to adjudication of the claim. In that regard, the Board finds the specialist’s rationale for the conclusions reached to be inadequate. In that regard, the Veteran testified at the Board hearing that he began to complain about his symptoms in 2014 and was ultimately diagnosed with lung cancer in 2016. However, the October 2018 specialist cites to diagnostic testing completed in 2012 and 2013 – prior to the window of time when the Veteran stated that his complaints were not taken seriously. What is at issue is whether the VA failed to diagnose or treat a preexisting condition that resulted in the Veteran’s need for resection of the lung in order to treat the advanced lung cancer. If so, the question turns to whether such a delay in diagnosis or treatment caused/aggravated his condition beyond the natural progression. On remand, the specialist should provide a thorough rationale for all opinions reached. The Board has remanded the matters of entitlement to service connection for a lung disability and depression as the Veteran has claimed they are secondary to his § 1151 claim and therefore inextricably intertwined. Once development has been completed on the § 1151 claim, the Agency of Original Jurisdiction (AOJ) should readjudicate the inextricably intertwined claims. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the October 2018 pulmonologist (or an appropriate medical professional). The Veteran’s electronic claims folder, including a copy of this remand, must be available to the examiner for review. If the examiner feels another examination is necessary, another examination should be scheduled. The examiner is requested to offer an opinion as the following: (a) Does the Veteran have any additional respiratory disability after his VA surgery performed on August 29, 2016? To determine whether the Veteran has additional respiratory disability, the examiner should compare the Veteran’s respiratory condition before the VA surgery on August 29, 2016, to the Veteran’s respiratory condition after the VA surgery. (b) If the Veteran has additional respiratory disability, was the additional disability caused by or made worse from the VA surgery performed on August 29, 2016? (c) If the Veteran has additional respiratory disability caused or made worse by VA surgery, did this additional disability result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA? (d) If the Veteran has additional respiratory disability caused or made worse by VA surgery, notwithstanding any informed consent documents of record, based upon the specific facts and circumstances of this Veteran’s case, was any additional respiratory disability or a reasonably foreseeable outcome of the surgery performed on August 29, 2016? In rendering this opinion, the examiner should address whether a “reasonable health care provider” would have considered the Veteran’s additional respiratory disability to be an ordinary risk of the treatment provided and would have disclosed such risk in connection with the treatment, regardless of what risks the treating physician actually foresaw and disclosed in the informed consent forms. The Board is returning the matter for an addendum opinion as the specialist did not provide a thorough rationale for all conclusions reached. In that regard, it would be particularly helpful to the Board’s adjudication if the specialist would identify and explain evidence that supports the previously stated conclusion that the VA followed the appropriate standard of care from the time the Veteran began to complain of increased breathing problems in 2014 up until his 2016 lung cancer diagnosis and his subsequent August 2016 surgery. A full and complete rationale for any stated opinion is required. (Continued on the next page)   2. After completing any additional development deemed necessary, the AOJ should readjudicate the issues on appeal (including whether the Veteran is entitled to compensation based on a secondary basis for his claims for a lung disability and depression) in light of any additional evidence added to the records assembled for appellate review. If the benefits requested on appeal are not granted to the appellant’s satisfaction, the appellant and his representative should be furnished a Supplemental Statement of the Case (SSOC), which addresses all of the evidence obtained since the RO last adjudicated these claims, and provided an opportunity to respond. MICHAEL A PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Baskerville