Citation Nr: 1813086 Decision Date: 03/05/18 Archive Date: 03/13/18 DOCKET NO. 16-53 047 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a compensable rating for residuals of lung cancer prior to February 3, 2015, to include as due to individual unemployability due to service-connected disabilities (TDIU), for substitution purposes. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to August 1969. He died in July 2015. In July 2016 the RO notified the Veteran's surviving spouse that she had been accepted as a substitute. She is the appellant in this claim. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Appeals Management Center (AMC) that increased the Veteran's service-connected lung cancer rating to 100 percent, effective February 3, 2015 based on active malignancy. The Veteran testified at a January 2015 videoconference hearing before the undersigned Veterans Law Judge (VLJ) in January 2015. A transcript of the hearing is associated with the claims file. In March 2015, the Board remanded the issue for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. The appellant will be notified if further action is required on her part. REMAND As noted above, the appellant has been approved for substitution. Upon a grant of a request to substitute, the substitute may continue the claim or appeal to completion. See 38 C.F.R. § 3.1010 (a). The Veteran died July 6, 2015. At the time of the Veteran's death, the Veteran had an active appeal for the issue of entitlement to an initial compensable rating for service-connected lung cancer. The original date of claim was August 25, 2010. In a July 2, 2015 rating decision, the AMC assigned a rating of 100 percent for service-connected lung cancer, effective February 3, 2015 the date a CT scan showed active malignancy. The appellant filed a timely notice of disagreement and substantive appeal asserting that the effective date should be August 25, 2010, the date the Veteran filed his claim for service connection for lung cancer. In her July 2015 notice of disagreement, the appellant raised the issue of TDIU, stating that although the Veteran was cancer-free from 2007 to 2015, he was unable to work during that time due to residuals of lung cancer. The evidence also shows that previously, in a June 2014 substantive appeal, the Veteran stated that he had been unemployable since his diagnosis and treatment for lung cancer in 2006 due to exhaustion, lack of strength, and muscle spasms. A review of the claims file shows that the issue of entitlement to individual unemployability due to service-connected conditions (TDIU) has never been addressed by the AOJ. Accordingly, as the appellant's claim for entitlement to an initial compensable rating for lung cancer prior to February 3, 2015 includes as due to unemployability due to service-connected disabilities, and the issue of TDIU has not been adjudicated by the AOJ, the issue on appeal must be remanded. Additionally, as the February 3, 2015 CT scan showed an advanced stage of lung cancer, a retroactive opinion should be sought to ascertain whether the Veteran's lung cancer manifested (as opposed to when it was discovered) prior to February 3, 2015, and if so, on what date did it reasonably manifest based on the medical evidence. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Refer the claim to a qualified VA medical professional for an opinion on the manifestation of the Veteran's lung cancer. The entire record must be reviewed by the examiner. Based on the review of the record, the examiner should provide an opinion as to the following: Whether it is at least likely as not (50 percent or greater probability) that the lung cancer manifested (as opposed to when it was discovered) prior to the diagnosis on February 3, 2015, and, if so, was it manifested on August 25, 2010 (when the Veteran filed his claim for service connection), and, if it did not manifest on August 25, 2010, when did it reasonably manifest in the examiner's opinion. The opinion should include consideration of the treatment records and the stage of the Veteran's lung cancer at the time of the February 2015 CT scan that confirmed a diagnosis of advanced lung cancer. A full and complete rationale for any opinion expressed is required. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner 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). Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Conduct any further development necessary to ascertain whether it was at least as likely as not that residuals of the Veteran's service-connected lung cancer disability rendered him unable to obtain and maintain substantially gainful employment prior to February 3, 2015. 3. Thereafter, the AOJ should readjudicate the issue on appeal. If the determination remains unfavorable to the appellant, she and her representative should be provided with a supplemental statement of the case (SSOC) that addresses all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered, and they should be given an opportunity to respond to the SSOC prior to returning the case to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ MICHAEL A. PAPPAS 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).