Citation Nr: 21000084 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 12-33 426 DATE: January 4, 2021 REMANDED The issue of entitlement to a disability rating in excess of 30 percent for residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes prior to June 27, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from April 1969 to July 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a compensable rating or service-connected residuals of pulmonary tuberculosis. This appeal follows. In a November 2018 rating decision, the RO increased the assigned rating for residuals of tuberculosis to 30 percent from April 26, 2011 (the date of the increased rating claim) and to 100 percent from June 27, 2011. In a January 2020 decision, the Board noted that, although the Veteran is in receipt of a 100 percent rating for residuals of tuberculosis from June 27, 2017, the date of the claim on appeal was filed on April 26, 2011. Therefore, the Board indicated that the matter of entitlement to a rating in excess of 30 percent for residuals of tuberculosis prior to June 27, 2017 remains on appeal. This matter was remanded by the Board in January 2020 for further evidentiary development. A supplemental statement of the case (SSOC) was issued in July 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. A review of the Veteran’s VA claims file shows that he was afforded a VA examination in February 2018, at which time the VA examiner indicated, [A] medical opinion given on [June 30, 2011] was incomplete as it correctly states that [the Veteran’s] tuberculosis lung infection is resolved[;] however[,] it does not address the abnormal chest x-ray of bilateral upper lobes interstitial prominence and apical density done on [June 27, 2011]. Previous and subsequent imaging consistently shows residual lung scarring to these areas and development of nodules and eventually malignant neoplasms bilaterally - a direct consequence of tuberculosis infection during his active duty service. The [V]eteran’s original diagnosis of active tuberculosis on [April 21, 1969] was described as Bilateral Upper Lobes, Far Advanced Tuberculosis, Active by Medical Board Separation Exam. A Chest X-Ray on [March 24, 1970] in Bangor, Maine shows: There is gross infiltration involving the right upper lobe. This most likely corresponds to an active process, apparently tubercular in origins. Also noted, some fibro-calcific changes in the left upper lobe with fibrotic retraction. Further studies are suggested. [The] Veteran has extensive documentation of bilateral lung upper lobes scar tissue, nodules and then positive cancer to same scar tissue. [In] [June 2017], his Pulmonary doctor, Dr. Saab opines that [the] [V]eteran’s bilateral upper lobe cancer is likely a result of scarring acquired secondary to tuberculosis scarring fibrosis (page 37 of record). Significantly, these findings were not addressed by the subsequent July 2019 and April 2020 VA examiners. As such, the Board finds that a retrospective medical opinion as to the severity of the Veteran’s service-connected residuals of inactive tuberculosis to include emphysema and malignant neoplasms of right and left upper lobes condition prior to June 2017 is necessary to the adjudication of this claim, given the Veteran’s complicated medical history. See Chotta v. Peake, 22 Vet. App. 80 (2008) (holding that VA’s duty to assist may include a need to obtain a “retrospective medical opinion” to ascertain past severity of disability where a rating must be assigned for a long-ago period and insufficient evidence is presented to support rating the disability over that period). Specifically, the examiner is asked to address the severity of the Veteran’s tuberculosis symptoms prior to June 27, 2017. The matters are REMANDED for the following action: The AOJ should arrange for the record to be forwarded to an appropriate physician for review and an advisory medical opinion. Upon review of the record, the consulting physician should offer an advisory medical opinion that responds to the following: Based on review of the evidence of record, to include the June 2011 and February 2018 VA opinions, please provide a medical opinion as to the nature, extent, and severity of the Veteran’s tuberculosis disability for the period prior to June 27, 2017. The consulting physician must explain the rationale for all opinions. If a requested opinion cannot be provided without resort to mere speculation, the examiner must indicate whether the need to speculate is caused by a deficiency in the state of general medical knowledge or by a deficiency in the record, or the provider lacks the requisite knowledge or training). Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Griffith 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.