Citation Nr: 1333953 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-15 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial compensable evaluation for lung cancer. 2. Whether new and material evidence has been submitted sufficient to reopen a claim seeking entitlement to service connection for chronic obstructive pulmonary disease (COPD) and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Solomon, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1963 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, TN, which granted service connection for lung carcinoma with a noncompensable (0 percent) evaluation, effective June 29, 2007. The Veteran appealed the initial noncompensable disability rating to the Board. The present characterization of the issue as involving residuals of lung cancer merely reflects the more recent status of the Veteran's condition as having lung cancer that was successfully removed, with the consideration now of post-operative residuals. The record reveals that the Veteran requested a Travel Board hearing in conjunction with his appeal. However, in July 2011, his request for a hearing was withdrawn. See 38 C.F.R. § 20.702(e) (2013) (a request for a hearing may be withdrawn by an appellant at any time before the date of the hearing). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reasons for remand: To secure updated VA treatment records; to afford the Veteran a VA examination and opinion to evaluate his residuals of lung cancer; and to issue a Statement of the Case (SOC) for the Veteran's COPD claim. The evidence already of record indicates that the Veteran receives ongoing treatment with the VA Medical Center in Mountain Home, TN. The most recent VA treatment record in the claims file (including in Virtual VA) is from November 2009. Updated VA treatment records are likely to have bearing on his claim, are constructively of record, and must be secured. Lung Cancer Additional development is needed prior to the disposition of the claim for an increased (compensable) evaluation for lung cancer. Applicable rating criteria provide that under 38 C.F.R. § 4.97, Diagnostic Code 6819, the condition of neoplasms, malignant, any specified part of the respiratory system (exclusive of skin growths) is to be assigned a temporary 100 percent evaluation to continue beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. The criteria further provides that six months after discontinuance of such treatment, the appropriate rating shall be determined by mandatory VA examination. If there has been no local recurrence or metastasis, the condition is then to be rated on its residuals. The Veteran's lung cancer was successfully treated in June 1998 with a left lung lobectomy. The record indicates that there was no post-surgical recurrence of the lung carcinoma. The Veteran is service connected for lung cancer with an effective date of June 29, 2007. As such, the disability should be rated on the basis of the residuals of the lung cancer and the resultant surgery (lobectomy). Rating the Veteran's post-operative residuals of lung cancer would proceed under the General Rating Formula for Restrictive Lung Disease (38 C.F.R. § 4.97, Diagnostic Codes 6840 through 6845), or substantially similar rating criteria that is heavily dependent upon testing of lung capacity through a Pulmonary Function Test (PFT). A PFT was administered at the Veteran's January 2009 VA examination, and the examiner noted results showing moderately severe obstructive ventilatory defect and a moderate decrease in diffusion capacity. The examiner also noted that she was unable to separate the lobectomy from the COPD, regarding their effects on the Veteran's daily activities. As the record stands, it is unclear as to what symptoms are attributable to the Veteran's service-connected lung cancer and lobectomy residuals and what symptoms are attributable to his COPD, which is not of service origin or otherwise related thereto. A VA examination and opinion is necessary to determine whether it is possible to differentiate the symptoms of each, and to determine the severity of the Veteran's lung cancer with lobectomy residuals. COPD In an October 2009 rating decision, the RO granted the Veteran's claim to reopen a claim for entitlement to service connection for COPD associated with herbicide exposure or secondary to service-connected lung cancer, and continued the previous denial. In his appeal to the Board of his April 2009 denial of an initial compensable rating for lung cancer, received March 23, 2010, he stated that his COPD was a result of his exposure to Agent Orange. The Board construes this as a Notice of Disagreement (NOD) with the October 2009 rating decision. When an NOD has been filed with regard to an issue, and an SOC has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the issue of entitlement to service connection for COPD, to include as secondary to lung cancer and as a result of herbicide exposure, must be remanded for the issuance of an SOC and to give the Veteran the opportunity to complete an appeal. 38 U.S.C.A. § 7105; 38 C.F.R. § 19.26; See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all VA treatment records from November 2009 to the present. All efforts to obtain such records must be fully documented and VA facilities must provide a negative response if no records are found. 2. Upon completion of the above, schedule the Veteran for an examination with an appropriate examiner to determine the current severity of his service-connected residuals of lung cancer with lobectomy. The examiner should note all relevant pathology. All indicated tests, including X-rays and PFTs, should be conducted, and all findings should be reported in detail. In this regard, the Board notes that the Veteran has been diagnosed with COPD. In the VA examiner's report, he or she must specifically discuss whether it is possible to differentiate the symptoms of the Veteran's service-connected residuals of lung cancer with lobectomy from symptoms of his COPD, or any other non-service-connected respiratory disability found present. If it is possible to differentiate such, the VA examiner is asked only to consider symptoms of the Veteran's service-connected residuals of lung cancer with lobectomy in his or her examination report. If the symptoms cannot be attributed to one disorder or the other, this should be so stated. Mittleider v. West, 11 Vet. App. 181 (1998). In the latter case, the VA examiner should also consider those symptoms which cannot be determined to be from a respiratory disorder other than the residuals of lung cancer with lobectomy. The examiner should include in the examination report the rationale for any opinion expressed. However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. Thereafter, the RO/AMC should readjudicate the claim on appeal in light of all additional evidence received. If the benefit sought on appeal is not granted, the Veteran and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 4. Issue a statement of the case addressing the issue of entitlement to service connection for COPD. The appellant should be provided the opportunity to perfect a timely substantive appeal (VA Form 9) with respect to that issue. The RO is free to undertake any additional development deemed necessary with respect to that issue. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).