Citation Nr: 21064494
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 17-59 632
DATE: October 20, 2021

ORDER

The reduction of the evaluation for the Veteran's non-small cell lung cancer of the left lower lobe from 100 percent to 0 percent effective November 1, 2015, was proper.

Entitlement to a compensable evaluation for the Veteran's non-small cell lung cancer of the left lower lobe since November 1, 2015, is denied.

FINDINGS OF FACT

1. Since November 1, 2015, the Veteran's non-small cell lung cancer of the left lower lobe has been in remission without recurrence, metastasis, or compensable residuals distinct from his separately service-connected chronic obstructive pulmonary disease.

2. The Veteran's lung cancer is in remission, and there is no evidence of any residual conditions or recurrence since November 1, 2015 which would warrant a compensable evaluation.

CONCLUSIONS OF LAW

1. The reduction of the rating for non-small cell lung cancer of the left lower lobe from 100 percent to noncompensable, effective November 1, 2015, was proper. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105 (e), 4.97, Diagnostic Code (DC) 6819.

2. The criteria for a compensable rating for residuals of lung cancer from November 1, 2015, have not been met. 38 C.F.R. §§ 4.31, 4.97, Diagnostic Code 6819.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in active-duty service with the Army from January 1964 to October 1985.

This matter is on appeal from an August 2015 rating decision. The Board remanded this appeal in January 2019, October 2020 and July 2020 for additional development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2).

Increased Rating

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 

Non-small cell lung cancer of the left lower lobe

The Veteran's claim for an increased rating for his cancer disability includes consideration of whether the reduction in the assigned rating from 100 percent to noncompensable, effective November 1, 2015 was proper as he has challenged both the propriety of the assigned rating for his disability as well as the reduction. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992).

The Board notes that the Veteran is also currently service-connected for chronic obstructive pulmonary disease (COPD); however, this issue is currently not on appeal and therefore the Board's discussion is limited to the issue of the Veteran's non-small cell lung cancer of the left lower lobe.

The Veteran was originally granted a 100 percent evaluation for his cancer disability under DC 6819, which provides a 100 percent rating for neoplasms, malignant, any specified part of respiratory system exclusive of skin growth. 38 C.F.R. § 4.97, DC 6819. DC 6819 also provides that a rating of 100 percent shall continue beyond the cessation of any surgical or other therapeutic procedure, with periodic examinations to determine if the condition is in remission. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of 38 C.F.R. § 3.105 (e). If there is no local recurrence or metastasis, the condition is to be rated on the residuals.

Where a reduction in evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her last address of record of the contemplated action and furnished detailed reasons therefore and be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. If additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105 (e).

In Rossiello v. Principi, 3 Vet.App. 430 (1992), the Court examined a prior version of Diagnostic Code 6819, which was substantially similar to the current version except that it provided a 100 percent evaluation for two years, rather than six months, following the cessation of cancer treatment. See 38 C.F.R. § 4.97, note to Diagnostic Code 6819 (1991). The Court distinguished reductions under Diagnostic Code 6819 from reductions under other diagnostic codes that lack a temporal component and explained that the appellant's evaluation "ceased to exist by operation of the note to [Diagnostic Code] 6819" because "[t]he basis for the 100% [evaluation], in the absence of 'local recurrence or metastases,' no longer exists." Id. at 433. The Court therefore concluded that any error in evaluating the residuals did not render the reduction itself improper and did not warrant reversal and reinstatement of the prior 100 percent evaluation. Id. 

Procedurally, the Veteran was granted service connection for non-small cell cancer of the left lower lobe and assigned a 100 percent evaluation under Diagnostic Code (DC) 6819 effective from January 21, 2010.

The evidence of record shows that in November 2009, the provider noted the Veteran pulmonale round foci on both sides indicating a "suspicion of metastases." the Veteran was diagnosed with non-small cell lung cancer in December 2009; the Veteran underwent a resection surgical procedure for treatment.

In a February 2010 statement, the Veteran stated that in October 2009 he was diagnosed with tumors in both lungs; since then, he has undergone operation on both lungs and was currently going through extensive rehabilitation.

In regular followups from March 2010 through July 2011 the treating provider found no indication of recurrence or metastases and found the Veteran to be subjectively stable with no indication of tumor progression and metastasis.

In an April 2012 disabilities benefits questionnaire (DBQ), the provider diagnosed the Veteran with emphysema; chronic obstructive pulmonary disease (COPD); restrictive lung disease related to left lower lung lobe resection; sleep apnea; and "benign or malignant neoplasm or metastases" relating to the Veteran's small cell carcinoma of the lung.

The provider indicated the Veteran required intermittent courses or bursts of systemic corticosteroids 2 times in the past 12 months. The provider noted that the Veteran required corticosteroid inhalational medication to treat his COPD.

The provider next noted that the Veteran did not have a benign or malignant neoplasm, had completed treatment and was "currently in watchful waiting status". When asked on whether there were residuals or complications relating to neoplasms or metastases or related treatment, the provider indicated there was "restrictive pulmonary dysfunction" without any further clarifying detail. The provider noted that the Veteran had scars from the surgery that were still tender.

The provider noted the Veteran had physical complications and symptoms to include a frequent productive cough day and night; and shortness of breath when going uphill, climbing stairs, or in cold and damp weather.

The provider indicated that a March 2012 chest x-ray showed no evidence of tumor relapse.

In March 2012 the Veteran reported increased cough. In January 2013 the Veteran complained of increased dyspnea with physical effort and increased sensitivity to cold and moist air. In November 2013 the Veteran reported continued effort-induced shortness of breath; the treating provider found no exacerbation, infection, or evidence of recurrence or metastases. In November 2014 the Veteran was noted to complain of mild bronchial symptoms, especially on effort; the provider noted an x-ray showed the Veteran as stable with no tumor recurrence or metastases.

The Veteran was afforded a January 2015 VA examination. The examiner diagnosed the Veteran with COPD and benign or malignant neoplasm relating to small cell lung cancer with surgical resection and residual scar.

The examiner noted the Veteran was initially diagnosed with COPD in 2003 and then underwent resection of the lung in 2009 to treat small cell cancer. The examiner further noted the Veteran "has since been cancer free."

The examiner found the Veteran required intermittent courses or bursts of systemic corticosteroids but had no courses in the past 12 months. The Veteran required daily inhalational bronchodilator therapy and medication. The examiner indicated that these treatments were predominantly for treating COPD.

The examiner found no residuals from the treatment of the Veteran's non-small cell cancer. The examiner found the Veteran had scars related to the above diagnoses but were not painful or unstable. The examiner noted that a chest x-ray showed strong right side hilar pulmonary vessel markings and indurations in the left due to thickening or scarring.

The examiner indicated the Veteran had multiple respiratory conditions but found the limitations to be primarily due to COPD.

In a March 2015 rating decision, it was proposed to reduce the evaluation of the Veteran's non-small cell cancer from 100 percent to 0 percent. The rating decision noted that the January 2015 VA examination did not show evidence of active cancer, no recurrence since 2009, and there were no residuals other than scars.

In a March 2015 statement, the Veteran stated that prior to his 2009 surgery, the Veteran did not report or experience problems to include coughing, wheezing, or shortness of breath; however, the Veteran stated that such symptoms arose after his surgery and were contributing to his current physical decline.

In a March 2015 statement, the Veteran's wife described the Veteran's symptoms to include continuous shortness of breath, coughing up mucus, and difficulty catching his breath after minor tasks; the Veteran's wife indicated the Veteran was negatively affected by the "breathing disorder he contracted after the 2009 surgery."

In an April 2015 Veteran statement, the Veteran asserted that his COPD did not worsen until after the 2009 surgery and described symptoms to include coughing, wheezing, and shortness of breath with minor tasks. In June 2015 the Veteran reported no significant shortness or breath or coughing attacks.

In an August 2015 rating decision, the Regional Office (RO) reduced the Veteran's evaluation of non-small cell cancer of the left lobe to 0 percent effective November 1, 2015, indicating the absence of recent malignancy or significantly disabling residuals.

In a September 2015 private provider letter, the provider found the Veteran's symptoms to include severe coughing and breathing difficulty were primarily symptoms of the Veteran's COPD.

The Veteran submitted a November 3, 2015 private disability benefits questionnaire (DBQ). The examiner diagnosed the Veteran with COPD, restrictive lung disease relating to "post-surgical residual, lobectomy" and post thoracotomy pain syndrome.

The examiner noted the Veteran was diagnosed with low grade COPD in 1997 that was increased in severity following the Veteran's surgical procedure. The examiner indicated the Veteran required daily bronchodilator therapy relating to restrictive lung disease as well as having a bacterial lung infection. Concerning bacterial lung infection, the examiner indicated that it was active with symptoms of night sweats, chills, chest congestion, chest pain, and mucus when coughing. 

The examiner indicated the Veteran has completed treatment for his non-small cell cancer. The examiner stated that since the 2009 surgery, the Veteran has increased lung disabilities to include decreased lung function, recurrent breathlessness, and chest discomfort.

The examiner noted other symptoms to include wheezing when breathing, continuous coughing, and constant "reacting to pain and discomfort of post-thoracotomy scarring (visibly irritating)." The examiner stated that the Veteran's restrictive lung disease, was the predominant condition responsible for the limitation of the Veteran's pulmonary function.

The Board notes that the November 2015 private examiner is the same provider whom which the Veteran made regular followups after the 2009 surgery; however, the provider does not address the conflicting findings made in the January 2015 VA examination and April 2012 private examination indicating the bronchodilator therapy and medication was for the Veteran's COPD in contrast to the November 2015's findings that such therapy was for restrictive lung disease or explain the change. As such, the Board affords the November 2015 findings less probative weight.

In a November 2015 notice of disagreement (NOD), the Veteran stated that at the time of evaluation he was being treated for status post non-small cell cancer of the left lung and that it was not considered in the rating decision. The Veteran asserted that had the evaluator considered surgical treatment and pulmonary test results, this would have resulted in a higher evaluation. The Veteran described increased respiratory and sever physical discomfort since his lung surgery in 2009.

In December 2015 the Veteran reported a slight increase in shortness of breath in the past half year.

The Veteran was afforded a December 2015 VA examination. The examiner diagnosed the Veteran with COPD and benign or malignant neoplasm or metastases relating to cell carcinoma of the left lower lobe.

The Veteran reported a history of intermittent difficulty with breathing since the mid-1970s. The examiner noted the Veteran "over the course of years...has had progressive decline in [the Veteran's] respiratory function." The examiner noted the Veteran was diagnosed with cancer of the left lung in 2009 that resulted in a resection surgical procedure.

The examiner noted the Veteran required corticosteroid therapy and treatment but did not indicate which diagnosis was predominantly responsible for this treatment.

The examiner indicated the Veteran with an active, malignant neoplasm or metastases and further noted "left lower lobe resection." The Board notes that the examiner did not refer to any specific record or provide explanation to support this finding in comparison to previous records that indicated no evidence or recurrence of cancer. The examiner did note the Veteran's breathing had been restricted by the surgical resection and found the Veteran's COPD related to the surgery; however, the examiner would later find the COPD to be a new and separate condition with overlapping symptoms. The examiner indicated the Veteran's symptoms of dyspnea, lack of endurance, and cough was due to COPD.

In a January 2017 statement, the Veteran contended the January 2015 VA examination was inadequate and described it only lasting 15 minutes with no personal interview. The Veteran stated that the evidence supported "continuous treatment of lung residual symptoms since" and that his treatment has not been completed.

In a February 2017 VA addendum opinion, the examiner noted that pulmonary function test findings taken prior to and after the 2009 surgery showed "relatively stability within a range consistent with 2005 and 2009 preoperative values"; the examiner found that the 2009 surgery did not significantly affect the Veteran's pulmonary test values and that the Veteran's COPD that was present before the 2009 surgery was the etiology of the pulmonary test values.

The examiner also noted the Veteran's pulmonary test findings over time showed fluctuations "not unexpected in the natural course of COPD, regardless of the lung cancer" and indicated that lung function would decline with age over time, more accelerated with COPD. 

The examiner indicated the Veteran's reported statements of symptoms were inconsistent. The examiner noted the Veteran in April 2015 asserted having no symptoms of coughing, shortness of breath, or wheezing prior to his surgery; the examiner indicated the Veteran had previously submitted statements that he experienced symptoms during military service and in 2005 had a diagnosis for COPD that included such reported symptoms.

In a November 2017 form 9 statement, the Veteran stated that "I did not disagree with the reduction for the lung cancer" but maintained that he did have residuals from his surgery to treat the cancer in his left lung.

In a May 2018 statement from the Veteran's private provider, the provider noted the Veteran did not display noticeable deteriorating respiratory symptoms when first diagnosed with cancer. The provider stated that after surgery the Veteran would be diagnosed with status post left lower lung lobe resection with dyspnea, shortened breath condition, and restrictive lung disease. The provider stated that the Veteran was previously only diagnosed for COPD and opined that the Veteran's diagnosed restrictive lung disease and dyspnea were directly result from the 2009 surgery.

However, the Board notes that while the statement mentions prior VA examinations, the provider does not address the conflicting findings that the VA examiners finding no residuals from the lung cancer and attributing the Veteran's symptoms to COPD.

The Veteran was afforded a January 2020 VA examination. The examiner diagnosed the Veteran with COPD and squamous carcinoma lung. The examiner noted the Veteran reported the onset of his COPD in 1965 with "exaggerated coughing spells", followed by smoking beginning in 1972 until the 1990s and eventual development of cancer in the left lower lung.

The Veteran stated that his COPD worsened to "present day Stage III requiring copious persistent pulmonary toilette." The Veteran reported his symptoms was severe COPD with little resilience requiring daily use of inhalers as well as reduced lung capacity due to lobe excision. The examiner indicated the Veteran's current medication was for treating the Veteran's COPD. 

The examiner next found the Veteran's lung cancer to be in remission with a residual of "decreased vital capacity." The examiner also noted that there was stable nodule observed for years in the Veteran's chest. The examiner noted the Veteran with scars but did not find them painful or unstable. The examiner also indicated that a 2019 x-ray did not show any signs of metastasis.

The examiner indicated the Veteran's COPD was a separate entity from the Veteran's lung cancer and that both the COPD and lung cancer were caused by smoking. The examiner also stated that it was "unknown" if the Veteran's cancer was active and noted that "a small tumor is being observed but has been stable for years." The examiner did not find any additional diagnoses related to lung cancer.

The examiner further stated that the Veteran did have a tumor in the lung which has not changed since the 2009 surgery and noted the Veteran's treating pulmonologist elected to observe and not perform further surgery; as such, the examiner opined the Veteran's cancer was either cured or in remission. The examiner noted that "due to [the Veteran's] precarious pulmonary status, it will not be biopsied."

The Board notes that an April 2020 rating decision granted service connection for COPD.

In a May 2020 Veteran statement, the Veteran stated that previous examination pulmonary test findings were enough to show continued treatment and entitlement to a compensable evaluation.

In an August 2020 addendum opinion, the examiner noted the Veteran had stage III COPD in 2003 and that the Veteran "has been in a precarious state since his [lung cancer] surgery with inferior lobectomies to attempt [treatment]."

The examiner noted the small hilar mass "which may or may not be a tumor" and the pulmonologist since 2015 had been reluctant to biopsy the mass due to the Veteran's current respiratory state. The examiner did indicate that the Veteran has not "developed to this day any metastases from his primary small cell carcinoma."

The examiner referenced a medical article that described the survival rate of small cell cancer and discussed how some cases showed such cancers could stay dormant for many years. The examiner opined that when considering whether the mass was benign or malignant, "we could kill the Veteran trying to biopsy it...with doubt as to its pathological basis, I would favor considering this mass to be a dormant malignancy until proven otherwise." 

The Board finds the August 2020 opinion appears inconclusive as to whether the mass was benign or malignant and appears to speculate that it could be a dormant malignancy and leaving it open to be corrected by future opinions. As such, the Board finds the opinion to be inadequate. Jones v. Shinseki, 23 Vet. App. 382, 393-94 (2010).

In a separate November 2020 VA medical opinion, the VA examiner found after review of the record that the current nature and severity of the Veteran's lung cancer was to be in remission. The examiner first noted the Veteran was diagnosed and treated for lung cancer in 2009 with no metastatic disease found at the time of diagnosis; the examiner found the Veteran did not require adjuvant therapy following the surgery. The examiner did not find the Veteran required treatment specifically for his lung cancer since. The examiner noted the Veteran had residual scars from his resection but with no evidence of residual pain.

The examiner found that the records indicated the Veteran had residuals of aggravation for his previously diagnosed COPD which required daily inhaler treatment. The examiner found the noted "precarious nature" of the Veteran's respiratory system was more likely due to the severity of the Veteran's COPD that would put him at risk to perform a biopsy.

The examiner noted the residuals of restrictive lung disease on the November 2015 DBQ and evidence of worsening respiratory status at the January 2020 VA examination were more than likely due to residual worsening of the COPD aggravated by the Veteran's lung resection. 

The examiner indicated the January 2020 VA examination documented the Veteran with no residual pain from the scar and was silent to any thoracotomy pain syndrome; as such, the examiner opined the conditions had since resolved since the 10 years passage of time from the 2009 surgery. The examiner also noted the VA examination found the bacterial lung infection reported on the November 2015 DBQ had resolved.

The examiner next stated that literature review noted that pulmonary nodules were fairly common, and that 60 percent of pulmonary nodules seen on chest X-rays and 99 percent seen on chest CTs are benign.

The examiner acknowledged the prognosis for untreated lung cancer "is grim" and that patient lives would be considered at immediate risk unless treatment is performed without delay.

As such, the examiner opined that the "unchanged stable mass from 2009 is at least as likely as not a benign mass that is separate and distinct mass from the Veteran's lung cancer."

The Veteran submitted a December 2020 statement from his private provider. The provider stated the Veteran had been continuously receiving postoperative treatment for respiratory residual conditions associated with the 2009 lung surgery for the past several years. 

The provider stated that the Veteran's respiratory condition between January 2010 to December 2015 to include discussing the April 2012 DBQ diagnoses for emphysema and restrictive lung disease indicated "permanent, moderate to chronic residual conditions" as a result of the 2009 surgery. However, the Board notes the provider does not discuss the findings of subsequent VA examinations which did not diagnosis the referenced diagnoses or found they had otherwise resolved and did not opine on what current residuals the Veteran had. As such, the Board finds the provider opinion inadequate and afforded less probative weight.

In a December 2020 Veteran statement, the Veteran acknowledges that he has not had any treatment for active cancer since 2009; however, the Veteran asserts that he has been under continuous observation for his "precarious lung condition" with systemic oral doses of corticosteroids. The Veteran states that the previous diagnoses as noted in the April 2012 DBQ and November 2015 VA examination never resolved and continued to affect him.

The Veteran was afforded a March 2021 VA examination. The examiner diagnosed the Veteran with COPD and healed non-small cell lung cancer of the left lower lobe status post-surgical resection with residual scars; the examiner indicated that this was a new diagnosis that was a correction of the previous diagnosis and more accurate.

The examiner noted the Veteran's COPD had progressed and worsened with moderate severity but found the Veteran's lung cancer to be healed with residual scars. The examiner found the Veteran's treatment of daily inhaler medication applicable only to COPD.

The examiner found the Veteran with a malignant neoplasm in remission and noted records indicating a December 2009 node in the right lung that was negative for cancer. The examiner indicated the Veteran's residuals to be decreased vital capacity due to lobectomy. The examiner noted the Veteran with scars but did not find them to be painful or unstable. The examiner noted the April 2019 x-ray that found COPD and no evidence of metastasis.

The examiner noted the Veteran with multiple respiratory conditions and found the Veteran's COPD to be predominantly responsible for the Veteran's limitation in pulmonary function. The examiner found the Veteran to be cancer free and therefore did not contraindicate pulmonary function testing; the examiner found that all other symptoms were due to the Veteran's COPD.

The examiner reviewed the record to include previous examinations. The examiner found the Veteran considered to be cancer free and did not undergo any other chemo- or radiotherapy. The examiner noted the Veteran's inhaler was for treatment of the Veteran's COPD.

The examiner considered the Veteran's unchanged stable mass and found it probably a calcific node. The examiner stated the inability to biopsy the mass due to the Veteran's precarious pulmonary status "does not mean the Veteran has cancer; on the contrary, the stability of the lesion is a clear proof of non-malignancy." The examiner considered the evidence of a lung mass that was stable since 2009 and found it reasonable to consider it a nonmalignant lesion with no evidence of metastasis.

The examiner noted the Veteran with aggravation of COPD and found this was diagnosed as restrictive lung disease in the 2012 examination; the examiner opined that this diagnosis was not adequate to the Veteran's condition, noting the worsening of COPD due to the Veteran's lobectomy but this "was not a restrictive lung disease." The examiner noted that COPD diagnosis was a more accurate diagnosis rather than restrictive lung disease due to the nature of the condition and indicated that such terms were previously used interchangeably by the providers. The examiner also noted that previous diagnoses for emphysema and chronic bronchitis were part of the Veteran's COPD diagnosis and determined that the 2012 diagnoses were made "to ensure the lobectomy residual on the Veteran's pulmonary condition was assessed."

The examiner noted the COPD treatment with daily inhaler treatment but found no evidence of oral steroids in active medication. The examiner found no residuals stemming from surgery other than "CV reducing in PFT" as reported; however, the Veteran at the examination did not report thoracalgia or painful scars.

After review of the record, the Board finds the 100 percent evaluation pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6819, was properly reduced.

Initially, the Board finds that the RO complied with the procedural requirements of 38 C.F.R. § 3.105. In this regard, the RO provided the Veteran with a letter in March 2015, notifying him of the proposed reduction in the corresponding rating decision, his right to present additional evidence within 60 days, and his right to request a hearing. The August 2015 rating decision that implemented the reduction was not issued until the appropriate time period had elapsed, and the effective date of the discontinuance was in accordance with applicable criteria. Thus, the Board finds that the requirements of 38 C.F.R. § 3.105 (e) were met.

Furthermore, the Veteran underwent a VA examination to assess the current nature and severity of his condition more than six months after discontinuance of his treatment, as required by 38 C.F.R. § 4.117, Diagnostic Code 6819. As discussed above, the VA and private medical evidence of record shows that the Veteran did not require any treatment for his non-small cell cancer following his surgery in 2009. Although the December 2015 VA examination indicated an "active" malignancy, the examiner did not provide any rationale or specific reference to records to support this finding; subsequent VA examinations found no evidence of recurrence, metastases, or otherwise found the Veteran to be cancer free. The December 2020 and March 2021 VA examiner considered the evidence showing a node in the Veteran's lung but found it to be a benign mass give its stability and unchanged mass since 2009.

Moreover, the private medical evidence of record to include regular followups from the Veteran's 2009 surgery through the present does not suggest any recurrence or metastasis at that time, and the Veteran has not contended otherwise; in December 2020 the Veteran stated his acknowledgement that he has not received any active treatment for cancer since 2009. As such, in the absence of recurrence or metastases, the 100 percent evaluation ceased by operation of law. 

Based on the foregoing, the Board finds that the 100 percent evaluation under Diagnostic Code 6819 was properly reduced.

The Board next finds that based on the above objective evidence of record, the Board finds that a compensable evaluation is not warranted at any point during the appeal period. As addressed above, the Veteran's lung cancer is in full remission with no evidence of any residual conditions or recurrence which would warrant a compensable evaluation under Diagnostic Code 6819. Review of chest x-rays in the claims record failed to show any evidence of lung cancer and the most recent VA examination in March 2021 found the Veteran's lung cancer is cured with no residual conditions or recurrence. Finally, as for the Veteran's report of symptoms to include wheezing, coughing and shortness of breath, the Board notes that the most recent VA examinations in March 2021 found the symptoms as related to the Veteran's COPD. Additionally, the Board notes that the Veteran is already separately rated for COPD and any current symptoms are adequately contemplated by the presently assigned 60 percent evaluation for COPD. Accordingly, a compensable rating for lung cancer is not supported or warranted under Diagnostic Code 6819. 

Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for lung cancer. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

 

 

MICHAEL LANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Yang, Attorney-Advisor

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.