Citation Nr: 20007863 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 17-61 284 DATE: January 30, 2020 REMANDED Entitlement to an initial compensable rating for residuals of lung cancer, status post right upper lung lobe removal, for substitution purposes, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1951 to August 1955 and from January 1958 to January 1974. Unfortunately, he died in April 2018. In May 2019, the Veteran’s surviving spouse was substituted as the claimant in this matter. Entitlement to an initial compensable rating for residuals of lung cancer, for substitution purposes The Veteran was in receipt of an initial noncompensable rating for lung cancer residuals, prior to August 27, 2014 (at which point a 100 percent rating was in effect due to recurrence of the cancer). Prior to his death, the Veteran argued that his respiratory symptomatology was severe enough to warrant an increased initial rating. The Veteran’s lung cancer residuals were rated under DC 6819, which provides a 100 percent rating for malignant neoplasms in any specified part of the respiratory system, exclusive of skin growths. A Note to DC 6819 provides that a rating of 100 percent shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. If there has been no local recurrence of metastasis, rate on residuals. See 38 C.F.R. § 4.97. In this case, the Veteran was diagnosed with lung cancer in 2005, at which point he underwent a lung resection. In July 2012, he filed a claim for service connection. In June 2013, he was afforded a VA examination which revealed no recurrence of the cancer; no other diagnoses pertaining to the respiratory system were noted, with the exception of chronic obstructive pulmonary disease (COPD), which the Veteran explained had been diagnosed in the 1970s. Although the Veteran reported shortness of breath with exertion and stated that he required daily inhalational bronchodilatory therapy, pulmonary function tests (PFTs) revealed forced expiratory volume in one second (FEV-1) of 72 percent predicted (pre-bronchodilator) and 86 percent predicted (post-bronchodilator), consistent with a noncompensable rating. Consequently, in an August 2013 rating decision, the RO granted service connection for residuals of lung cancer and assigned an initial noncompensable rating, under DC 6819-6520. (DC 6520 applies to decreased lung function resulting from stenosis of the larynx. Under DC 6520, compensable ratings are warranted for FEV-1 of 70-percent predicted or lower, with Flow-Volume Loop compatible with upper airway obstruction. See 38 C.F.R. § 4.97.) The record reflects that, subsequent to the June 2013 VA examination, the Veteran was diagnosed with several additional respiratory disorders. For example, a Disability Benefits Questionnaire (DBQ) dated in April 2014 indicated diagnoses of asthma and emphysema as well as COPD. Notably, the DBQ reflects that the Veteran’s asthma required at least four courses per year of systemic corticosteroids—a level of treatment which, under the DC applicable to asthma, could have warranted at least a 60 percent rating. See 38 C.F.R. § 4.97, DC 6602. Unfortunately, however, the examiner who completed the DBQ did not provide an opinion as to whether the Veteran’s asthma (or any of his other respiratory disorders) was attributable to his lung cancer. The Veteran contended during his lifetime that all of his respiratory disorders were secondary to his service-connected lung cancer. (The Board is aware that the Veteran withdrew his claims for service connection for asthma, emphysema, and COPD in September 2017.) On review, however, there is no competent evidence of record addressing whether there is a causal nexus between any of these disorders and the Veteran’s lung cancer. Without such evidence, the Board cannot properly rate the Veteran’s symptoms, as it is unclear which symptoms are attributable to lung cancer and which are attributable to nonservice-connected causes. For the aforementioned reasons, the Board finds that the June 2013 VA examination in this case was inadequate. See 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an examination or medical opinion, it must ensure that the examination or opinion is adequate). Consequently, a retrospective medical opinion is required to determine (a) the nature and severity of the Veteran’s respiratory symptomatology prior to August 27, 2014, and (b) to what extent such symptomatology was attributable to the Veteran’s lung cancer. See Chotta v. Peake, 22 Vet. App. 80, 84-85 (2008); Vigil v. Peake, 22 Vet. App. 63, 67 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). The matters are REMANDED for the following action: Obtain a medical opinion from an appropriate clinician regarding the nature and severity of the Veteran’s service-connected lung cancer residuals prior to August 27, 2014. The clinician should review the pertinent evidence of record (to include the June 2013 VA examination report and April 2014 DBQ) and offer opinions responding to the following prompts: (a) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s lung cancer recurred prior to August 27, 2014? (b) Is it at least as likely as not (50 percent probability or greater) that any of the Veteran’s respiratory system-related diagnoses—to include but not limited to asthma, emphysema, and COPD—were caused or aggravated by his service-connected lung cancer? If the examiner determines that any diagnoses pertaining to the Veteran’s respiratory system were causally related to his service-connected lung cancer, the examiner should describe, to the extent possible, all signs and symptoms attributable to these disorders, including any treatment/s and/or medications therefore. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Minot, Associate 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.