Citation Nr: 1806967 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 13-35 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE What initial evaluation is warranted for non-small cell carcinoma, left upper lobe, status post pneumonectomy since September 4, 2012? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel INTRODUCTION The Veteran had active military service from November 1965 to November 1967. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified before the Board at an October 2015 videoconference hearing. A transcript of the hearing is of record. This case was converted from a paper file to the Veterans Benefits Management System (VBMS) virtual claims folder. Additional documents are also located in Virtual VA. The Board remanded this case in January 2016 for further development. The case has been returned to the Board for final review and disposition. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran underwent a left lung pneumonectomy in January 2012. His September 2012 follow up examination did not include a pulmonary function test, or an evaluation of his breathing. The examiner only referred to a pulmonary function test conducted in January 2011, prior to major lung surgery. Another examination administered in March 2013 did not reflect pulmonary function tests and the Veteran has argued that his disability was not properly evaluated as a result. A March 2016 VA examination included pulmonary function tests which showed reduced lung function. Significantly, the examiner did not comment on the relationship between residuals of the 2012 pneumonectomy and reduced lung function shown on pulmonary function tests. In this regard, the Veteran is service connected for non-small cell carcinoma. The March 2016 examiner, however, also diagnosed chronic obstructive pulmonary disease, a disorder for which service connection is not currently in effect. As such, further development is in order to determine the nature of any pulmonary impairment due to carcinoma, to include residuals of a pneumonectomy, and to distinguish that pathology from pathology caused by the chronic obstructive pulmonary disease. 38 C.F.R. § 3.159. Also, the Veteran has submitted authorization forms so that his private medical records could be requested. In March 2016, an invoice was received for medical records held by John Hilu, M.D., and Oakwood Hospital and Medical Center. By law VA cannot pay for private treatment records. As such, the Veteran should be again notified that those private records were not received, that VA cannot pay for records, and that if he wishes to submit those records he should obtain and submit them. Accordingly, the case is REMANDED for the following action: 1. The AOJ should refer the Veteran's claims file to a VA pulmonologist for a clarifying opinion as to the nature and extent of the Veteran's service connected residuals of non-small cell carcinoma, status post pneumonectomy. If a VA examination is deemed necessary by the pulmonologist to respond to the questions presented, one should be scheduled. The pulmonologist is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, previous VA examinations and assertions. The pulmonologist must answer the following questions: a. What is the level of respiratory impairment caused by non-small cell carcinoma of the lung with residuals of a left lung pneumonectomy? Based on the March 2016 pulmonary function study what FVC, FEV1, FEV1/FVC and DLCO values represent the degree of impairment both pre and post bronchodilator caused by non-small cell carcinoma of the lung with residuals of a left lung pneumonectomy? b. What is the level of respiratory impairment caused by chronic obstructive pulmonary disease? Based on the March 2016 pulmonary function study what FVC, FEV1, FEV1/FVC and DLCO values represent this degree of impairment both pre and post bronchodilator caused by chronic obstructive pulmonary disease? A complete, well-reasoned rationale must be provided for any opinion offered. If the requested opinion cannot be rendered without resorting to speculation, the pulmonologist must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. The Veteran is to be notified that it is his responsibility to report for any 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 (2017). The Veteran is also to be notified that, by law, VA is not authorized to pay for records, and that he should obtain and submit copies of any private treatment records he desires VA to consider. 3. After the development requested has been completed, the AOJ should review expanded records, including the examination report, to ensure that complete compliance with the directives of this REMAND. If any deficiency is noted, the AOJ must implement corrective procedures at once. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If any benefit sought on appeal is not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).