Citation Nr: 21028618
Decision Date: 05/11/21	Archive Date: 05/11/21

DOCKET NO. 17-12 355
DATE: May 11, 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 previously before the Board of Veterans' Appeals (Board) in January 2021, when it was remanded for an opinion from an independent medical expert.  The Agency of Original Jurisdiction (AOJ) obtained the requested opinion in February 2021.  Although the February 2021 opinion is highly detailed and responsive to the Board's questions, an addendum to the opinion is necessary to ensure the decision on the Veteran's claim is fully informed.  In the February 2021 opinion, C.M., M.D., opined there was a failure on VA's part to timely diagnose lung cancer.  C.M., M.D., reported VA should have biopsied the Veteran's left lung after a solitary nodule was shown in both August 2012 and October 2013; however, C.M., M.D., did not address whether the Veteran 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, rather limiting the scope of his answer to treatment for prostate cancer and explaining the Veteran's lung cancer was not metastasis of prostate cancer as claimed by the Veteran.  The Board acknowledges the Veteran's claim was premised on a theory of metastasization, but he is not a medical expert and is only expected to report his symptoms and medical history.  In light of the paternalistic nature of the VA adjudication system, the Board finds further development is necessary to determine whether the claimed disability is the result of VA treatment for lung cancer with the issue on appeal been recharacterized accordingly.

The matter is REMANDED for the following action:

Obtain an addendum to the February 2021 opinion that addresses 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 addendum must include a complete rationale for the opinion contained therein.  If the author of the February 2021 opinion is unavailable or cannot otherwise provide the requested addendum, it may be obtained from another physician.

 

 

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.