Citation Nr: 1508727	
Decision Date: 02/27/15    Archive Date: 03/11/15

DOCKET NO.  12-31 630	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to a rating greater than 30 percent for lung cancer, status-post chemo-radiation therapy, to include the propriety of the reduction of the Veteran's disability rating for lung cancer, from 100 percent to 30 percent, effective October 1, 2012. 

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

S. M. Marcus, Counsel


INTRODUCTION

The Veteran served on active duty from September 1967 to March 1970.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska where the RO reduced the Veteran's rating for lung cancer from 100 percent to 30 percent, effective October 1, 2012. The Veteran had a hearing before the Board in February 2014 and the transcript is of record.

The Veteran indicates his lung cancer residuals render him unable to work in his usual occupation, working with horses.  The RO denied the Veteran's claim seeking entitlement to a total disability rating based on individual unemployability (TDIU) in a November 2013 rating decision.  Although the Veteran never directly disagreed with this rating decision, he raised the issue again during a January 2014 hearing before a Decision Review Officer (DRO).  The RO has not adjudicated the TDIU claim since the January 2014 hearing.   In accordance with Rice v. Shinseki, 22 Vet. App. 446 (2009), the Board finds the record reasonably raises a claim of TDIU.  Id. (holding a TDIU claim is part of an increased rating claim where the Veteran claims his disability causes unemployability).  Accordingly, the issue of entitlement to a TDIU is before the Board here.  Id. 

During the January 2014 DRO hearing, the Veteran also raised the issue of reopening claims seeking entitlement to service connection for bilateral sensorineural hearing loss and tinnitus.  These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2014). 

The TDIU issue is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.  


FINDINGS OF FACT

1.  An April 2010 rating decision awarded service connection for lung cancer, evaluated at 100 percent disabling, effective January 11, 2010.

2.  In a May 2012 rating decision, the Veteran was informed that his 100 percent evaluation for lung cancer was proposed to be reduced to 30 percent. 

3.  In a July 2012 rating decision, the RO reduced the disability evaluation from 100 percent to 30 percent, effective October 1, 2012

4.  There has been no local recurrence of malignancy or metastasis of lung cancer.

5.  The Veteran's lung cancer is manifested by shortness of breath, intermittent acute attacks of bronchitis or similar infection requiring antibiotics for one week at a time no more than two to three times a year, six to ten physician visits for required care of exacerbations, asthma requiring daily inhalers, and pulmonary function abnormalities no worse than forced expiratory volume in 1 second (FEV-1) of 73.6 percent predicted, forced expiratory volume in 1 second/forced vital capacity (FEV-1/FVC) ratio of 71 percent, and diffusing capacity of the lung for carbon dioxide (DLCO) ratio of 67.2 percent.


CONCLUSION OF LAW

Effective October 1, 2012, the criteria for a rating of 60 percent, but no higher, for lung cancer, status-post chemo-radiation therapy, have been met.  38 U.S.C.A. § 1155 (West 2014); 38 C F R §§ 3.105, 3.321, 3.344, 4.115a, 4.97, Diagnostic Codes 6602, 6819 (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Assist and Notify

VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  

With regard to the propriety of the reduction in rating for the Veteran's lung cancer, the regulation governing reductions, 38 C F R § 3.105(e), contains its own notice provisions and procedures.  Where a reduction in an evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting for all material facts and reasons.  In addition, the RO must notify the Veteran that he has 60 days to present additional evidence showing that compensation should be continued at the present level.  38 C.F.R. § 3.105(e).  

Here, the notice requirements with respect to the rating reduction have been met.  Service connection for lung cancer was granted by an April 2010 rating decision and a 100 percent evaluation was assigned under 38 C.F.R. § 4.115b, Diagnostic Code 6819, effective January 11, 2010.  In a May 2012 rating decision, the RO informed the Veteran of a proposed reduction in the rating from 100 percent to 30 percent and afforded the Veteran 60 days to present additional evidence showing the compensation should be continued at the present level.  Thereafter, in a July 2012 rating decision, the RO reduced the rating from 100 percent to 30 percent, effective October 1, 2012.  Thus, the Board finds all notice provisions and procedures governing reductions have been met.  See 38 C.F.R. § 3.105(e).

VA's duty to assist has been satisfied.  The Veteran's service treatment records and VA medical records are in the file.  38 U.S.C.A. § 5103A; 38 C.F.R § 3.159.  The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) recently held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the Board personal hearing, the Veterans Law Judge (VLJ) noted the elements of the claim that were lacking to substantiate the claim for an increased rating for the Veteran's lung cancer. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars. The representative and the VLJ asked questions to ascertain the severity of the Veteran's lung cancer, to include functional impairment.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for an increased rating.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearing. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

The RO provided the Veteran appropriate VA examinations in April 2012 and May 2013.  Also noteworthy, VA outpatient treatment records include pulmonary function testing conducted in November 2012.  The examinations are adequate because they are based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder and appropriate diagnostic tests.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007).  The Veteran has not claimed his condition has worsened since the 2013 examination.   The Board notes the Veteran was seen in June 2014, roughly one year after the most recent VA examination, for the purpose of obtaining an opinion regarding employability.  The June 2014 VA examiner did not indicate any findings consistent with a worsened condition.  VA outpatient treatment records through November 2013, moreover, also reflect a "stable" lung condition and overall manifestations consistent with the May 2013 VA examination.  There is nothing to indicate that the Veteran's lung cancer is worse than when last examined in May 2013.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Increased Rating for Lung Cancer

Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002).  

Where a disability evaluation has continued at the same level for less than five years, that analysis is conducted under 38 C.F.R. § 3.44(c).  Where an evaluation has continued at the same level for five or more years, the analysis is conducted under 38 C.F.R. §3.44(a) and (b).  Here, the Veteran's 100 percent disability evaluation was awarded effective January 11, 2010, and was reduced effective October 1, 2012, less than 5 years later.  Under 38 C.F.R. § 3.344(c), a reexamination that shows improvement in a disability warrants reduction in the disability evaluation.

The Veteran's lung cancer was originally rated under Diagnostic Code 6819, which provides for a 100 percent rating for malignant neoplasms of the respiratory system.  38 C.F.R. § 4.97, Diagnostic Code 6819.  A Note following Diagnostic Code 6819 explains that after cessation of surgical, X-ray, antineoplastic chemotherapy, or other therapeutic procedures, the rating of 100 percent shall continue with a mandatory VA examination at the expiration of six months.  If there has been no local reoccurrence or metastasis, the disability is to be rated on residuals.  Id. at Note.

In this case, and as will be more thoroughly indicated below, the medical evidence indicates the Veteran's lung cancer was treated successfully with no reoccurrence or metastasis of the cancer.  With regard to residuals, the medical evidence indicates the Veteran's residuals include shortness of breath, asthma, and intermittent acute bouts of bronchitis or similar infection requiring antibiotics two to three times a year.  The Veteran also has a mood disorder and peripheral neuropathy of the four extremities, which have been linked to his lung cancer.  These residuals have already been service connected and rated separately.  They are not properly before the Board here and, therefore, may not support an increased rating here.

Rather, effective October 1, 2012, the Veteran's residuals of lung cancer was rated 30 percent disabling under Diagnostic Code 6602, for bronchial asthma.  See 38 C.F.R. § 4.97, Diagnostic Code 6602.  Under Diagnostic Code 6602, a 10 percent rating is assigned for application when forced expiratory volume in one second (FEV-1) is 71-80 percent predicted, or; forced expiratory volume in one second/forced vital capacity (FEV-1/FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy.  A 30 percent rating is assigned for application when FEV-1 is 56-70 percent predicted, or; FEV-1/FVC of 57 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation may be assigned when FEV-1 is 40-55 percent predicted, or; FEV-1/FVC of 40-55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent, at least three per year courses of oral or parenteral systemic corticosteroids. Id. A 100 percent evaluation is warranted when FEV-1 is less than 40-percent predicted, or; FEV-1/FVC is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of oral or parenteral systemic high dose corticosteroids or immuno-suppressive medications. Id.

Post-bronchodilator studies are required when pulmonary function tests (PFTs) are conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96 (2014).

VA outpatient treatment records indicate the Veteran was first diagnosed with lung cancer in 2009.  Specifically, a biopsy confirmed adenocarcinoma of the lung in December 2009.  He was being treated for an unrelated cancer at the time, but was referred to oncology in early 2010.  The Veteran underwent chemo-radiation therapy in multiple cycles through 2010.  After that, records from 2011 merely indicate regular follow-ups to assess the success of the treatment.  From March 2011 to September 2011, records indicate the Veteran's condition was "stable" with no new masses.  VA outpatient treatment records from 2012 similarly reflect ongoing follow-up appointments, to include chest x-rays revealing a stable condition with right upper lobe volume loss and scarring, but no evidence of recurrence of disease.  In May 2012, the Veteran's physician noted, however, that the Veteran was treated for Stage 3B lung cancer and, therefore, is at high risk for recurrence.  Although he had no active malignancy at that time, he would need to see an oncologist every four to six months.  At that time, the Veteran was asymptomatic other than mild neuropathy.  Similar notations are noted throughout 2012. 

On October 1, 2012, the Veteran was seen complaining of upper respiratory problems with a productive yellow cough "to gagging point."  In November 2012, the oncologist once again confirmed no evidence of recurrence of lung cancer.  VA outpatient treatment records from October 1, 2012 through 2013 indicate intermittent treatment for cold-like symptoms such as sore throat, cough, difficulty breathing.  The records reflect a diagnosis of asthma, which is treated with nebulizers and inhalers, which the Veteran uses four times a day.  Chest x-rays from 2012 to 2013, however, indicate no evidence of malignancy and a stable right upper lobe volume loss with scarring.  

The VA outpatient treatment records do include one set of pulmonary function tests dated November 2012.  At that time, FEV-1 was measured at 73.6 percent, FEV-1/FVC was measured at 71 percent, and DLCO (SB) was measured at 69.4 percent.  The physician at that time did note the Veteran was coughing a lot during testing.

The Veteran was afforded VA examinations in April 2012, shortly before the 30 percent reduction, and again in May 2013, subsequent to the 30 percent reduction.

In April 2012, the Veteran was found to have no recurrence of malignancy.  He indicated he used an inhaler four times a day for asthma, and had been on antibiotics twice over the last year for intermittent acute lung infections.  Pulmonary function testing at that time revealed FEV-1 at no worse than 81.4 percent, FEV-1/FVC no worse than 74 percent, and DLCO (SB) no worse than 67.2 percent. 

In May 2013, the examiner noted the Veteran's complaints of less air capacity, a "shot" immune system rendering him more prone to getting sick, a lack of stamina, and cough.  The Veteran indicated being treated with antibiotics, nasal spray, and inhalers for asthma.  He self-reported one bout of bronchitis over the past year.  Chest x-rays at that time did not indicate any active malignancy, but rather were stable showing right upper lobe volume loss and scarring, the same as the x-rays previously done in 2011 and 2012.  In addition to the history of lung cancer, the examiner diagnosed the Veteran with asthma, but found no incidents of respiratory failure of physician treatment for exacerbations.  Pulmonary function testing revealed results similar to April and November 2012, with FEV-1 no worse than 73.6 percent, FEV-1/FVC no worse than 71 percent, and DLCO (SB) no worse than 69.4 percent.  The examiner further found the DLCO score to be the most accurate representation of the Veteran's current disability.

In short, the medical evidence indicates the Veteran's lung cancer was treated successfully with no reoccurrence or metastasis of the cancer since completion of the chemo-radiation therapy in 2010.  With regard to residuals, the medical evidence indicates the Veteran's residuals include shortness of breath, asthma, intermittent bouts of infection (such as bronchitis) requiring antibiotics two or three times a year, and some pulmonary function abnormality, but no worse than FEV-1at 73 percent, FEV-1/FVC no worse than 71 percent, and DLCO (SB) no worse than 67 percent. 

With regard to the propriety of the reduction, the Board finds the RO properly considered a reduction based on medical evidence following the Veteran's chemo-radiation therapy in 2010 indicating no sign of disease.  The Veteran was afforded a VA examination in April 2012 confirming no evidence of recurrence of malignancy and, thus it was proper for the RO to propose a reduction.  See 38 C.F.R. § 3.344(c) (a reexamination that shows improvement in a disability warrants reduction in the disability evaluation).  The Veteran was properly notified of the RO's proposal to reduce the rating in May 2012, and had 60 days with which to provide evidence prior to the reduction taking affect.  Indeed, the Veteran did provide a response and additional evidence.  The July 2012 rating decision informed the Veteran that a reduction was found warranted, effective October 1, 2012.  The Board finds the RO followed proper procedures with regard to the reduction.  See 38 C.F.R. § 3.105(e).  

With regard to the actual rating of 30 percent assigned effective October 1, 2012, however, the Board finds the medical evidence warrants a higher rating of 60 percent, but no higher.

The Veteran was rated under Diagnostic Code 6602, for asthma.  The pulmonary function testing done throughout the pendency of this appeal does not reveal FEV-1, FEV-1/FVC, or DLCO percentages supporting a rating greater than 10 percent under any arguably applicable diagnostic code.  See 38 C.F.R. § 4.97, Diagnostic Codes 6600-6604.  As an aside, the Board notes Diagnostic Code 6602 does not take into account the DLCO percentage in the rating criteria.  Under DC 6600, for chronic bronchitis, a 10 percent rating is warranted for DLCO (SB) measured at 66 to 80 percent.  See 38 C.F.R. § 4.97, Diagnostic Code 6600.  In this case, the May 2013 VA examiner found the Veteran's DLCO percentage to be the most accurate representation of his disability.  It was measured at that time at 69 percent, but in no case was it measured worse than 67 percent. Therefore, even taking into consideration the Veteran's lowest percentage findings, no rating greater than the currently 30 percent rating would be warranted under any of the diagnostic codes related to pulmonary function testing.  See 38 C.F.R. § 4.97, Diagnostic Codes 6600-6604.

The Veteran claims the manifestations stemming from his chemo-radiation therapy, however, are not limited to shortness of breath.  He indicates having to see a doctor six times a year in addition to his usual three or four follow-up appointments with the oncologist as a result of exacerbations and/or infections, such as acute bronchitis.  He indicates having a chronic cough that never resolves.  Indeed, a VA physician noted the chronic coughing during a November 2012 pulmonary function testing.  The Veteran further notes using inhalers and nasal spray daily for chronic difficulties breathing.  He has been diagnosed with asthma and prescribed inhalers to be used four times a day. 

Based on the Veteran's daily use of inhalers, the RO assigned the Veteran a 30 percent rating under Diagnostic Code 6602.  Under Diagnostic Code 6602, as noted above, a 30 percent rating is warranted even if FEV-1 or FEV-1/FVC percentages are not met if asthma requires daily use of inhalers.  See 38 C.F.R. § 4.97, Diagnostic Code 6602.  

A 60 percent rating is warranted even if FEV-1 or FEV-1/FVC percentages are not met where the Veteran requires monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids.  Id.  Resolving all reasonable doubt in favor of the Veteran, the Board finds the Veteran meets the 60 percent rating criteria under Diagnostic Code 6602, but no higher.

Here, the Veteran has never required physician care for exacerbations of his asthma nor has he needed steroid treatment for his asthma.  With regard to his lung cancer, however, it is well documented that the Veteran is on antibiotics two to three times a year due to intermittent acute infections, such as bronchitis.  He also testified seeing a physician at least six times outside his normal follow-up appointments with his oncologist due to lung-related exacerbations.  Applying the diagnostic criteria by analogy, the Board finds a 60 percent rating is warranted under Diagnostic Code 6602.  

In contrast, the Veteran does not currently have manifestations associated with a 100 percent disability rating under any arguably applicable Diagnostic Code.

As noted above, there are other Diagnostic Codes relating to diseases of the lung, but the Board finds these alternative diagnostic codes either would not provide for a higher rating or are otherwise inapplicable here.  Diagnostic Codes 6600 (chronic bronchitis), 6601 (bronchiectasis), 6603 (pulmonary emphysema), and 6604 (chronic obstructive pulmonary disease) are not applicable here because the Veteran does not have any of these diagnoses.  Even applying the diagnostic criteria by analogy, however, a rating greater than 60 percent under any of these diagnostic codes would require a showing of FEV-1 less than 40 percent of predicted value, or FEV-1/FVC less than 40 percent, or DLCO (SB) less than 40 percent predicted, or outpatient oxygen therapy, or heart failure, or incapacitating episodes of infection of at least six weeks total duration per year.  

Under Diagnostic Code 6819 (for malignant neoplasms of the respiratory system), a 100 percent rating would only be applicable if there is evidence of a malignancy recurrence in the lungs.  There is no such evidence here and, indeed, there is evidence to the contrary.

As indicated above, while the Veteran is treated for acute infections intermittently, these infections typically occur two to three times a year and are treated by antibiotics for one week at a time.  The Veteran's lung cancer has not been associated with heart failure nor has the Veteran required outpatient oxygen therapy.  As indicated above, the Veteran's pulmonary function testing has never reached percentage levels warranting a rating greater than 10 percent.  Chest x-rays done since the end of the Veteran's chemo-radiation therapy in 2010 have consistently shown a stable condition with no recurrence of malignancy or metastasis.

Since October 1, 2012, the Veteran's lung cancer residuals are manifested by shortness of breath, asthma, daily use of an inhaler, treatment by a physician for intermittent exacerbations approximately six times a year, and use of antibiotics for acute infections two to three times a year.  Considering the Veteran's statements, the medical evidence, and VA examination results, a rating of 60 percent can be awarded by analogously applying the diagnostic criteria for asthma under Diagnostic Code 6602, but no higher.  There simply are no scheduler criteria that would provide a rating greater than 60 percent for the Veteran's lung cancer residuals.

The Board has considered whether a higher rating is warranted due to extraschedular considerations, but finds the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected lung cancer residuals.  The Veteran is already separately evaluated for residual peripheral neuropathy, and the Board has applied the diagnostic criteria in the most favorable light based on the Veteran's described manifestations.  There are higher ratings available under the diagnostic codes for other manifestations, but those manifestations are not present.  Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).  

In light of the evidence discussed above, the Board finds a rating of 60 percent, but no higher, is warranted effective October 1, 2012 for the Veteran's lung cancer residuals. The Veteran's manifestations include shortness of breath, asthma, daily use of inhalers, and physician treatment for intermittent exacerbations and infections, to include the use of antibiotics two to three times a year.  His lung cancer, however, is not manifested by recurrence of the malignancy or more severe pulmonary abnormalities normally associated with a 100 percent rating.  While the Veteran has credibly testified as to functional limitations, the Board finds the 60 percent rating awarded here compensates for the described functional limitations.

In reaching this decision, the Board considered the doctrine of reasonable doubt.  However, as the preponderance of the evidence is against a finding of an increase beyond 60 percent disabling, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

The reduction of a rating from 100 percent for lung cancer, status post chemo-radiation therapy was proper and to that extent the appeal is denied.

Effective October 1, 2012, entitlement to a rating of 60 percent, but no greater, for lung cancer, status-post chemo-radiation therapy, is granted subject to the laws and regulations governing monetary awards. 
REMAND

The Veteran claims his lung cancer and the residuals thereof, which include peripheral neuropathy of all four extremities, preclude his ability to maintain substantial gainful employment.

Specifically, during his hearing before a Decision Review Officer (DRO) in January 2014, the Veteran explained he worked with horses and hay, to include riding in rodeos, for over thirty years.  Due to his lung condition and trouble with his four extremities, it would be dangerous for him to be around horses.  He indicates his shortness of breath and asthma worsen around the dust and hay and, therefore, he cannot continue his usual employment.

A medical opinion was obtained in June 2013 where the examiner found the Veteran would still be able to perform sedentary employment despite his service-connected disabilities.  The Veteran, in his January 2014 testimony, disagreed.  Specifically, the Veteran testified that the chemo-radiation therapy left him vulnerable to infections and he avoids public places as much as possible.  He further noted residuals of brittle bones and neuropathy making any prolonged task impossible.  

Since the June 2013 opinion, not only did the Veteran provide testimony in January 2014, but he was awarded service connection for additional disabilities.  A June 2014 rating decision granted service connection for peripheral neuropathy of the bilateral upper extremities found to be secondary, or residual to, the Veteran's lung cancer and chemo-radiation therapy. 

By virtue of this Board decision, the Veteran's lung cancer residuals are now rated 60 percent disabling.  Thus, the Veteran is currently service connected for lung cancer, rated 60 percent disabling, a mood disorder with depression and anxiety associated with lung cancer, rated 30 percent disabling, and peripheral neuropathy of the bilateral lower and upper extremities, rated 10 percent disabling each.  All service connected disabilities have been associated with the Veteran's lung cancer and his total disability rating is now at 80 percent.  See 38 C.F.R. § 4.25 (2014).
In light of the grant herein, the grant of additional service connected disabilities in the June 2014 rating decision, the Veteran's January 2014 testimony, and his unique and highly specialized occupational history, the Board finds a new VA examination is necessary with a vocational specialist.  Due to the nature of the Veteran's occupational history, it is unclear whether the Veteran is not only capable of any other employment, to include sedentary employment, but would be qualified for such employment.  It does not appear the June 2013 examiner considered these factors.  

The AMC must also take this opportunity to obtain recent VA outpatient treatment records from November 2013 to the present.

Accordingly, the case is REMANDED for the following action:

1. The RO/AMC should ensure that the Veteran is provided with all appropriate notice as to the TDIU issue, and the RO/AMC should obtain and associate with the claims folder the Veteran's VA outpatient treatment records from November 2013 to the present.  All efforts to obtain VA records should be fully documented.

2.  After the above is completed and records are obtained to the extent available, schedule the Veteran for a VA examination with a vocational specialist to determine the effect of his service-connected disabilities (which include residuals of lung cancer, mood disorder, and peripheral neuropathy of all four extremities) on his ability to secure or follow a substantially gainful occupation.    

The claims file must be made available to the examiner in conjunction with the examination.  All necessary special studies or tests are to be accomplished.  The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history.  Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to the function impact of the Veteran's service-connected disabilities, alone on in combination, on his ability to secure or follow a substantially gainful occupation consistent with his education and occupational experience.  This opinion must be provided without consideration of his nonservice-connected disabilities, or age.  

The examiner is specifically asked to clarify whether, given the Veteran's unique occupational history and training, he would be qualified to perform any employment within his physical limitations. The examiner is asked to focus on the functional effects of the Veteran's service connected disabilities on his capacity for employment.

A complete rationale for all opinions must be provided.  

3.  The RO must notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim.  The consequences for failure to report for a VA examination without good cause may include denial of the claim.  38 C.F.R. §§ 3.158, 3.655 (2014).  In the event that the Veteran does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address.  It must also be indicated whether any notice that was sent was returned as undeliverable.

4.  Thereafter, readjudicate the claim of entitlement to TDIU.  If the claim is denied, provide the Veteran a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response and then the case should be returned to the Board.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The 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 2014).



______________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs