Citation Nr: A21017017
Decision Date: 10/20/21	Archive Date: 10/20/21

DOCKET NO. 210915-184924
DATE: October 20, 2021

REMANDED

A compensable rating for lung cancer history with restrictive disease is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the United States Army from January 1966 to December 1968. His service decorations include the Vietnam Service Medal, and the National Defense Service Medal.

In August 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. This law creates a new framework for veterans dissatisfied with VA's decision on their claim to seek review. The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019. See 38 C.F.R. § 3.2400(a)(1). 

The rating decision on appeal was issued in August 2021 and constitutes an initial decision; therefore, the AMA applies. The Veteran timely appealed the decision to the Board by requesting the Direct Review docket in the September 2021 Decision Review Requests: Board Appeal (Notice of Disagreement) (VA Form 10182). Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.303.

The issue of entitlement to a compensable rating for lung cancer is remanded to correct a duty to assist error that occurred prior to the August 2021 rating decision on appeal. The Agency of Original Jurisdiction (AOJ) obtained an August 2021 medical opinion prior to the August 2021 rating decision on appeal. However, this medical opinion failed to consider the Veteran's April 2021 diagnosis of lung cancer as noted in the Veteran's medical records. Therefore, remand is required in order to obtain an addendum opinion regarding the current severity of the Veteran's lung cancer.

The matter is REMANDED for the following action:

Schedule the Veteran for a VA examination to determine the current severity of the Veteran's lung cancer. In forming this opinion, the examiner is asked to consider the April 2021 diagnosis of lung cancer of the upper left lobe.

 

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jorge Barroso, 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 This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.