Citation Nr: 21061403
Decision Date: 10/01/21	Archive Date: 10/01/21

DOCKET NO. 17-12 355
DATE: October 1, 2021

REMANDED

Entitlement to compensation under 38 U.S.C. § 1151 for additional disability claimed as a result of VA treatment is remanded.

REASONS FOR REMAND

This matter was most recently before the Board of Veterans' Appeals (Board) in May 2021, when it was remanded for an opinion addressing whether the Veteran at least as likely as not (50 percent probability or greater) has additional disability, to include, but not limited to, the claimed partial loss of the left lung, that would have been avoided if the proper diagnosis and treatment for lung cancer had been rendered earlier.  The Board requested this opinion in light of the comments of the author of a February 2021 independent medical opinion (IMO), C.M., M.D., who reported VA providers should have biopsied the Veteran's left lung after a solitary nodule was shown in both August 2012 and October 2013.  In September 2021, the Agency of Original Jurisdiction (AOJ) obtained a new opinion from a different, S.G., M.D., although an addendum to the February 2021 IMO was requested by the Board.  Unfortunately, S.G., M.D., did not properly address the question as posed in the Board's remand directives, rather opining that the Veteran did not have any additional disability beyond the partial loss of the left lung.  The Board notes the intent of its prior remand directives was to seek an expert opinion addressing whether any disability, to include the partial loss of the left lung, could have been avoided if the Veteran's lung would have been biopsied after a solitary nodule was shown in both August 2012 and October 2013, an issue that was not addressed in the September 2021 opinion provided by S.G., M.D.; therefore, there has not been substantial compliance with the Board's prior remand directives, requiring a remand of the Veteran's appeal.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matter is REMANDED for the following action:

Obtain a new opinion from an independent medical expert, other than the author of the September 2021 opinion, S.G., M.D., addressing whether the Veteran's partial loss of the left lung could have at least as likely as not (50 percent probability or greater) been avoided if VA providers had biopsied the Veteran's left lung after a solitary nodule was shown in both August 2012 and October 2013.  In addressing this question, the expert must explicitly acknowledge the February 2021 opinion provided by C.M., M.D., that suggests VA providers should had biopsied the Veteran's left lung after a solitary nodule was shown in both August 2012 and October 2013 and what role, if any, the apparent delay may have played in the progression of his disease.  The expert must provide a full rationale to support his or her conclusion.

 

 

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	L. S. Kyle, Counsel

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.