Citation Nr: 21001480 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 16-40 767 DATE: January 8, 2021 REMANDED Entitlement to an initial compensable rating for residuals of lung cancer, to include scars, status post left upper lobectomy, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1963 to November 1967. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision. The Veteran testified at a Board hearing in March 2019. In March 2020, the Board remanded the case back to the Agency of Original Jurisdiction (AOJ) for additional development. As explained in the March 2020 Board remand, the June 2014 rating decision denied a compensable rating for residuals of lung cancer. This rating decision came shortly after the May 2014 rating decision that established service connection for that disability. The Board notes that they both reference the same date that VA received the Veteran’s claim, August 7, 2013. As such, the issue on appeal relates to the initial rating for the service-connected residuals of lung cancer. Also as explained in the March 2020 Board remand, the Veteran was originally represented by a veterans service organization (VSO). 08/07/2013, VA 21-22, Appointment of Veterans Serv. Org. as Claimant Representative. That VSO, however, withdrew its representation of the Veteran in March 2017. 03/17/2017, Third Party Correspondence. The Veteran has not appointed a new representative. Therefore, he continues to appear before the Board on a pro se basis. Entitlement to an initial compensable rating for residuals of lung cancer, to include scars, status post left upper lobectomy, is remanded. The Veteran’s service-connected residuals of lung cancer are currently rated as noncompensable under 38 C.F.R. § 4.97, Diagnostic Code 6819 (neoplasms, malignant, any specified part of respiratory system exclusive of skin growths). The Veteran believes that his respiratory disability warrants a higher rating. Diagnostic Code (DC) 6819 provides that a rating of 100 percent for lung cancer 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 or metastasis, the disability is to be rated on residuals. Id. Service connection for residuals of lung cancer is in effect since August 7, 2012. The evidence of record shows that the Veteran was diagnosed with left upper lobe lung cancer in October 2011 and underwent a left upper lobectomy in November 2011, with no additional cancer treatment. 08/07/2013, Medical Treatment Record – Non-Government Facility; see also 04/30/2014, C&P Exam (“Medical History”). An April 2014 VA examination indicates that the Veteran denied residual dyspnea, shortness of breath, wheezing or cough with current daily activities, or being on any pulmonary medication. The examiner determined that the Veteran did not currently have any residual conditions or complications due to the lung cancer or its treatment, and that his condition did impact his ability to work. Pulmonary function testing (PFT) was conducted one month later, in May 2014. FVC was 101.8% predicted; FEV1 was 102.7% predicted; FEV1/FVC was 100.6%, and DLCO was 91.8% predicted. 06/02/2014, C&P Exam. In his January 2015 notice of disagreement, the Veteran indicated that the November 2011 lobectomy was curative of his lung cancer and stated that he did not have any residuals from the procedure. Nevertheless, he indicated that he had rib pain were his rib was broken for surgery and that he had continued to have follow-up visits with his oncologist every three months. 01/23/2015, NOD. The Veteran underwent a second VA examination in June 2016. 06/15/2016, C&P Exam. The examination report indicates that, in the past year, the Veteran had had bilateral pneumonia, which was treated with oral antibiotics and inhalers, but was now back to normal. It was also noted that the Veteran had some left-side discomfort when he lays on the left side. Regarding cancer residuals or complications, the examiner indicated that there was none. Similarly, no functional impact was noted. Regarding PFT, the examiner cited the May 2014 results. In July 2016, the AOJ denied service connection for residuals of a rib fracture. In his August 2016 Form 9, the Veteran noted that DC 6819 provides a rating of 100 percent. At his March 2019 Board hearing, the Veteran and his sister testified that the Veteran has experienced an increase in the severity of his breathing limitations over the last two or three years. He reported discomfort, being easily overexerted, sleeping difficulties, frequent coughing, wheezing, and shortness of breath. He added that, in recent years, he had observed a reduction in his capacity to be physically active. 03/27/2019, Hearing Transcript. Based on this testimony, the Board, in March 2020, remanded the case for a new VA examination. The Veteran underwent a third VA examination in April 2020. The Veteran reported trouble breathing, described as a knot in his chest, and occasional wheezing. It was noted that the Veteran took Hydroxyurea (500mg) three times a day and had to sleep with elevation, as laying flat caused shortness of breath. PFT was not conducted due to limitations related to the COVID-19 pandemic. As summarized above, the evidence of record indicates that the Veteran’s symptoms have worsened since around 2016. However, the most recent PFT is from May 2014. The Board understands the difficulties involved in conducting PFT during the COVID-19 pandemic. The Veteran, however, has a right to undergo a complete and adequate VA examination and the Board finds such updated evidence would be useful in adjudicating the rating issue on appeal. Accordingly, the Board finds that the appropriate course of action in this case is to remand for a VA examination that includes PFT. Hopefully, by the time such an examination is scheduled, the conditions will be in place for the Veteran to safely undergo PFT. Finally, VA treatment records were last associated with the claims file in September 2020. On remand, VA should obtain any outstanding VA treatment records. This matter is REMANDED for the following actions: 1. Obtain any VA treatment records since September 2020. 2. After completing #1, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected respiratory disability. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examination is to include pulmonary function testing (PFT). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board López, P. 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.