Citation Nr: A21020363 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 201106-120803 DATE: December 21, 2021 REMANDED Entitlement to an initial compensable evaluation for pulmonary nodules, claimed as respiratory problems, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1964 to February 1968. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2020 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran filed a VA Form 10182 Notice of Disagreement (NOD), timely appealing the decision under the Appeals Modernization Act (AMA). The Veteran initially requested a hearing with a Veterans Law Judge (VLJ), but in June 2021 his representative submitted a letter withdrawing the hearing request. When a claimant selects the Hearing docket in an appeal to the Board, the Board is permitted to consider evidence that was part of the record at the time of the Agency of Original Jurisdiction's (AOJ's) decision, as well as evidence submitted in the 90 days following the hearing. 38 C.F.R. § 20.302(a). If, as here, a claimant selects the Hearing docket and later withdraws their request for a hearing, the Board shall consider evidence that was part of the record at the time of the AOJ's decision, as well as evidence submitted in the 90 days following the claimant's withdrawal of their hearing request. 38 C.F.R. § 20.302(b). The Board will therefore consider all evidence that was part of the record on June 10, 2020, and all evidence submitted between June 29, 2021 and September 27, 2021. Entitlement to an initial compensable evaluation for pulmonary nodules The Board finds that a remand is necessary, pending a new VA medical examination regarding the Veteran's pulmonary nodules. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If an examination is inadequate, VA has a duty to provide a new examination or, at least, explain why such an examination will not be provided. Failure to provide an adequate medical examination constitutes a duty to assist error on the part of the RO, and is grounds for remand. See 38 C.F.R. § 20.802(a); 38 U.S.C. § 5103A(g). The Veteran's most recent examination for pulmonary nodules was in August 2021. In October 2021, the RO issued a decision which purported to defer the issue of an increased evaluation for pulmonary nodules, despite the Board having already placed this issue on its docket. The exact wording of the decision was: The evaluation for pulmonary nodules, claimed as respiratory problems is deferred for the following: VA examination clarification. The RO then submitted a request for an addendum to the August 2021 examination, to clarify the results of the pulmonary function testing (PFT). (The August 2021 examiner had stated that the Veteran's level of disability was best reflected by his FEV-1/FVC test result, but the Veteran's pulmonary nodules are evaluated under Diagnostic Code 6833which only considers DLCO and FEV percentage predicted in the rating criteria.) An addendum opinion has not yet been added to the claims file. Because the RO has found the August 2021 examination report inadequate, and has stated intent to reconsider the Veteran's initial evaluation for pulmonary nodules, the Board finds that a remand is warranted until this development is complete. The matters are REMANDED for the following action: 1. Obtain the VA medical examination requested by the RO in October 2021, to clarify which PFT results most accurately reflect the Veteran's level of disability. The examiner should keep in mind that the Veteran's claimed respiratory disability is evaluated under Diagnostic Code 6833, which considers only FVC percentage predicted, DLCO, and maximum exercise capacity in the rating criteria. 2. This case has been Advanced on the Docket. The AOJ must review the examination reports and opinions to ensure they are adequate and comply with the Board's specific remand directives herein. If an opinion is deficient in any manner, the AOJ must undertake immediate corrective action before returning the case to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.