Citation Nr: 21023650 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-43 021 DATE: April 21, 2021 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for additional disability resulting from VA treatment, claimed as a result of VA failing to properly diagnose and timely treat non-small cell lung cancer, for the purpose of accrued benefits, is remanded. Entitlement to compensation under 38 U.S.C. § 1151 for the Veteran’s cause of death, claimed as a result of VA failing to properly diagnose and timely treat non-small cell lung cancer, is remanded. Entitlement to dependency and indemnity compensation (DIC) under 38 U.S.C. § 1318 is remanded. REASONS FOR REMAND These matters were previously before the Board of Veterans’ Appeals (Board) in June 2019, when they were remanded so the Agency of Original Jurisdiction (AOJ) could obtain an advisory opinion from an independent medical expert (IME) pursuant to 38 U.S.C. § 5109. A pulmonologist, E.E., M.D., provided the requested opinion in October 2020. While the Board appreciates the diligence of both the AOJ in obtaining the IME opinion and the efforts of E.E., M.D., in reviewing the voluminous medical evidence in this case, the Board finds an addendum to the opinion is necessary. In its June 2019 remand directives, the Board asked the selected expert to address the Appellant’s specific contentions as outlined in an extensive handwritten statement she submitted that was first associated with the claims file in April 2017. While E.E., M.D., did address the Appellant’s testimony during the March 2017 hearing before the undersigned, E.E., M.D., did not reference or even acknowledge the April 2017 handwritten statement, which includes a far more detailed outline of her specific contentions on appeal when compared with her more generalized testimony during the March 2017 hearing before the undersigned. Further, although E.E., M.D., provided a detailed summary of the relevant treatment records in his report, he did not provide an adequate rationale to support his conclusion that the Veteran did not manifest symptoms that should have led to testing and an earlier diagnosis of lung cancer, providing only a conclusory statement that the Veteran’s treatment in 2002 was for right shoulder muscular pain and an eye condition. The Board notes the Appellant has asserted both that the respiratory symptoms the Veteran began to manifest as early as 2003 were early signs of lung cancer that should have triggered earlier testing, and that treating providers missed another early warning sign of the Veteran’s predisposition for cancer due to his melanoma being misdiagnosed or ignored for several years with his skin symptomatology rather being attributed to tinea pedis. While a summary of the relevant treatment records is helpful in this regard, what is missing from the record is expert analysis of why the symptoms identified by the Appellant either support or fail to support a finding that the standard of care required earlier testing and treatment for lung cancer under the circumstances present in the Veteran’s case. Thus, a remand is necessary to ensure the decision on the Appellant’s claim is fully informed through compliance with its prior remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Request an addendum to the October 2020 IME opinion that addresses the more detailed list of symptoms identified by the Appellant in her handwritten statement first associated with the claims file in April 2017. At a minimum, the addendum must address whether VA failed to timely diagnose the Veteran’s lung cancer prior to March 2009 in light of the respiratory symptoms he began to manifest in 2003 and/or in light of an alleged predisposition for cancer that was not considered due to skin symptomatology potentially being misattributed to tinea pedis rather than his subsequently diagnosed melanoma. If so, the addendum must then state whether the failure to timely diagnose and treat the lung cancer was the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the VA’s part and whether VA’s failure to diagnose and treat the cancer proximately caused the continuance of the natural progress of the disease leading to the Veteran’s death in April 2010. It is requested that the addendum include a full rationale explaining why the Veteran’s symptoms either support or fail to support a finding that the standard of care required earlier testing and treatment for lung cancer under the circumstances present in the Veteran’s case. A conclusory statement that simply indicates the Veteran was seeking treatment for conditions in different anatomical locations will be considered insufficient to guide the Board’s analysis of the Appellant’s assertions that the respiratory symptoms the Veteran began to manifest as early as 2003 were early signs of lung cancer that should have triggered earlier testing, and that treating providers missed another early warning sign of the Veteran’s predisposition for cancer due to his melanoma being misdiagnosed or ignored for several years with his skin symptomatology rather being attributed to tinea pedis. If the author of the October 2020 IME opinion is unavailable or cannot otherwise provide the requested addendum, it may be obtained from another medical expert. 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.