Citation Nr: 20042736 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 18-39 621 DATE: June 24, 2020 REMANDED Whether the reduction of the rating for residuals of lung cancer, from 100 percent to 10 percent, effective July 1, 2017, was proper is remanded. REASONS FOR REMAND The appellant is a Veteran who served on active duty from December 1963 to October 1971. This case is before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). At that time, the RO established a 0 percent disability rating for residuals of lung cancer. Following a July 2019 Board remand, the RO granted a 10 percent disability rating, effective July 1, 2017, for residuals of lung cancer. As such, the issue has been characterized to reflect this change. The Board notes that in April 2020, the Veteran has raised a new claim for service connection for cancer of the head or neck due to herbicide agent exposure, contaminated water from Camp Lejeune, or as secondary to his lung cancer. This matter is a separate claim and not currently before the Board. Whether the reduction of the rating for residuals of lung cancer, from 100 percent to 10 percent, effective July 1, 2017, was proper is remanded. The development directed by the Board in its last remand was not accomplished. The law mandates that where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). In pertinent part, the Board previously remanded to obtain a new, adequate VA examination. Although a new VA examination was obtained in January 2020, it did not meet the specifications outlined in the July 2019 Board remand. The January 2020 examiner was not a pulmonologist and did not explain why an exercise capacity test was not performed, though the Board outlined such requirements in its examination request. As such, a new VA examination is necessary. The matters are REMANDED for the following action: 1. Arrange for the Veteran to be examined by a Board-certified (given the complexity of the medical questions) pulmonologist to ascertain the level of his impairment from lung cancer residuals. The Veteran’s claims file must be reviewed by the examiner in conjunction with the examination. All indicated testing should be completed, such as pulmonary function testing (including DLCO test) and exercise capacity testing; if a test is not performed, the examiner must explain why such test would not be useful or valid(or cannot be conducted). The examiner is asked to respond to the following: (a). What are the residuals of the Veteran’s lung cancer and left pneumonectomy, as distinguished from any respiratory functional impairment due to nonservice-connected causes, to include smoking/vaping?; and (b). Based on the results of the Veteran’s history and pulmonary function testing, can it be stated that no impairment found is related/attributable to the lung cancer and left pneumonectomy? Is it medically possible to ascertain, or provide a reliable estimate of, the extent or percentage of respiratory impairment that is due to the effects of the lung cancer and left pneumonectomy as distinct and separate from respiratory impairment due to other, nonservice-connected causes? Complete rationale, with citation to relevant evidence, supporting factual data, and medical literature, as deemed appropriate, should accompany all opinions H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lindio 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.