Citation Nr: 22017356 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 18-16 249 DATE: March 24, 2022 REMANDED Entitlement to compensation pursuant to 38 C.F.R. § 1151 for disability of the heart, esophagus, lungs, and back is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1977 to February 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in November 2021. The transcript is of record. 1. Entitlement to compensation pursuant to 38 C.F.R. § 1151 for disability of the heart, esophagus, lungs, and back is remanded. The Veteran has averred that his current heart, esophageal, pulmonary, and back conditions are the product of negligent treatment on the part of VA. Specifically, the Veteran underwent radiation and chemotherapy for what was diagnosed by VA providers as lung cancer. While the record shows diagnostic imaging was taken in furnishing the diagnosis, the Veteran testified that a biopsy performed to confirm the diagnosis was negligently performed, and thus the diagnosis was never properly confirmed, and that moreover, radiation and chemotherapy were contraindicated and led to the above-enumerated disabilities. The Veteran's contentions have not been properly evaluated by a qualified VA examiner. The questions at issue in this matter are of a complex medical nature, and the Board may not substitute its judgment for that of a qualified medical professional in resolving them. Accordingly, the matter must be remanded for a VA examination and expert opinion on the questions at issue. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, secure any outstanding and relevant VA treatment records. 2. Then, forward the claims file to a qualified VA examiner for an expert medical opinion as to whether the Veteran sustained additional disability due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of a VA facility during any treatment of his purported lung cancer. Specifically, the Veteran maintains that the biopsy was botched and the diagnosis was not confirmed, and he did not have lung cancer and that the radiation and chemotherapy treatment he was given resulted in heart, esophageal, pulmonary and back conditions. In answering the question, the examiner is directed to state whether the record indicates that testing conducted was sufficient or adequate to confirm a diagnosis of lung cancer. 3. Review any opinions expressed to ensure they are compliant with this remand's directives. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.