Citation Nr: 21068430 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-18 644 DATE: November 10, 2021 ORDER Entitlement to a compensable evaluation for adenocarcinoma of the left upper lung from June 1, 201, to November 8, 2017, is denied. Entitlement to a 100 percent evaluation for adenocarcinoma of the left upper lung from October 1, 2018 to January 1, 2019, is granted. Entitlement to a compensable evaluation for adenocarcinoma of the left upper lung after January 1, 2019, is denied. FINDINGS OF FACT 1. The Veteran underwent a partial left lobectomy in November 2013 to treat his left lung adenocarcinoma. His medical records indicate that the procedure was successful, and VA examinations in May 2014 and October 2017 found no evidence of cancer recurrence or of residual conditions/complications. 2. Recurrence of the Veteran's left lung adenocarcinoma was found in November 2017 and confirmed in December 2017. The recurrence was treated with radiation and chemotherapy, which concluded no later than June 2018. 3. The Veteran's medical records indicate that no recurrence of his left lung adenocarcinoma was found after June 2018. Positron emission tomography (PET) and computerized tomography (CT) scans in October 2018 and April 2019 found no evidence of a subsequent recurrence. A VA examination in January 2020 found no evidence of recurrence or residual conditions/complications. CONCLUSIONS OF LAW 1. From June 1, 2014 to November 8, 2017, the criteria for a compensable rating for adenocarcinoma of the left upper lung have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6819. 2. From October 1, 2018 to January 1, 2019, the criteria for a 100 percent rating for adenocarcinoma of the left upper lung have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6819. 3. After January 1, 2019, the criteria for a compensable rating for adenocarcinoma of the left upper lung have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6819. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from December 1968 to September 1970. This matter comes before the Board of Veterans Appeals (Board) on appeal from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded by the Board in November 2019 to obtain a new VA examination assessing the Veteran's left lung adenocarcinoma. A new examination was conducted in January 2020. The Board finds that there has been substantial compliance with its remand instructions, and will proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Evaluation of left lung adenocarcinoma from June 1, 2014 to November 8, 2017 Disability evaluations are determined by comparing the manifestations of a disability with the criteria set forth in the Diagnostic Codes (DCs) of the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. When 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 shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran's disability is rated under DC 6819. DC 6819 provides for a 100 percent rating for malignant neoplasms of any specified part of the respiratory system exclusive of skin growths. It states that a rating of 100 percent shall continue beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy, or any other therapeutic procedure. 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 has been no local recurrence or metastasis, the RO is instructed to rate based on any residuals. (The provisions of 38 C.F.R. § 3.105(e) relate to rating reductions; they are inapplicable here, as the current appeal is of a staged rating established as part of the Veteran's initial grant of service connection for left lung adenocarcinoma.) The Veteran was diagnosed with a left lung mass in 2010, which increased in size in 2013. In November 2013, the Veteran underwent a partial lobectomy to remove the mass, which was later diagnosed as adenocarcinoma. The Veteran's medical records show that, following his partial lobectomy, he was frequently seen by VA medical providers to monitor potential cancer recurrence. The RO assigned an initial 100 percent rating from the effective date of service connection, December 30, 2014 until May 31, 2014, under DC 6819. The 100 percent assigned rating, the maximum rating allowable, is not on appeal and will not be further discussed. A May 2014 VA examination found that the Veteran had no residual conditions or complications due to his adenocarcinoma or its treatment, citing March 2014 imaging studies of the Veterans' lungs. A February 2015 radiology report found no evidence of cancer recurrence. The Veteran said in his May 2015 Notice of Disagreement that some of his lab tests were "still showing evidence of cancer," but a review of his treatment records shows that providers consistently described him as showing "no evidence of recurrence" of left lung adenocarcinoma before November 2017. CT scans in September 2014, April 2015, September 2015, and April 2016 found no evidence of cancer recurrence. In October 2017, the Veteran underwent a second VA examination for his lungs, which again found no evidence of cancer recurrence, and no residual conditions or complications due to adenocarcinoma or its treatment. The Veteran argues in his September 2021 brief that the noncompensable evaluation from June 1, 2014, to November 8, 2017, is improper, because his left lung adenocarcinoma did eventually recur. A November 2017 CT scan showed increasing subcarinal lymph node prominence, potentially indicating cancer recurrence; the diagnosis was confirmed in December 2017. However, all medical evidence of record indicates that there was no local recurrence or metastasis six months after the Veteran's partial lobectomy, and that he remained in remission for the next three years. The fact that the Veteran suffered an eventual recurrence does not retroactively require a compensable rating for the years before the recurrence; the purpose of a disability evaluation is to compensate a claimant for his level of impairment at a given time, and from June 2014 until November 2017, the Veteran did not exhibit manifestations of left lung adenocarcinoma. Entitlement to a compensable evaluation during that period is denied. Evaluation of left lung adenocarcinoma from October 1, 2018 to January 1, 2019 After the recurrence of his left lung adenocarcinoma, the Veteran was treated with chemotherapy and radiation. The RO assigned a 100 percent rating for the disability, under DC 6819, from November 9, 2017, until September 30, 2018. The Veteran asserts that the period for the 100 percent rating should be extended beyond that time period. His January 2020 VA examination states that chemotherapy and radiation treatment ended in March 2017, but treatment records are not entirely clear when his last treatment took place. A June 2018 VA treatment record states that the Veteran's treatment with two specific chemotherapy drugs ended in March 2018, and an October 2018 VA treatment record states that the Veteran completed chemotherapy and radiation treatment in March. However, a record from June 2018 describes the insertion of a radiology IV catheter, and a note from a visit later in June 2018 describes the Veteran as having "just finished treatment" for the recurrence of his lung cancer. If the Veteran in fact did not complete treatment for his left lung adenocarcinoma recurrence until June 2018, extending his 100 percent evaluation for a full six months after cessation of treatment would mean granting him a 100 percent evaluation until January 1, 2019. Because the evidence is at least in equipoise that the Veteran did not complete treatment for his left lung adenocarcinoma recurrence until June 2018, the Board must resolve doubt in his favor. 38 C.F.R. § 4.3, 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a 100 percent evaluation for left upper lung adenocarcinoma is granted from October 1, 2018 to January 1, 2019. However, the evidence does not support granting a compensable evaluation after January 1, 2019. The Veteran's medical records do not show any recurrence of his lung cancer, or residuals of the cancer or its treatment after six months; PET/CT scans in October 2018, April 2019, and November 2019 showed no evidence of recurrent disease, and oncology notes consistently describe the Veteran as "doing well" following treatment. The Veteran's January 2021 VA examination also found no recurrence of left lung adenocarcinoma after the cessation of radiation and chemotherapy, and noted that the Veteran was not undergoing any further treatment for lung cancer. The January 2021 examiner found no residuals of left lung adenocarcinoma or the treatment thereof to rate, other than a chest scar from the Veteran's lobectomy, which has already been evaluated separately. While the January 2021 examiner noted "shortness of breath" and "mild decrease in breath sounds," they attributed these symptoms solely to the Veteran's non-service-connected chronic obstructive pulmonary disease (COPD), and not his left lung adenocarcinoma. The January 2021 VA examination was conducted by a physician, and included both in-person examination of the Veteran and a review of the complete claims file; the Board finds that the January 2021 opinion merits probative weight. There is no conflicting evidence to weigh against the findings of the January 2021 opinion. The Veteran's medical records are consistent with the opinion, and the Veteran himself has not alleged that his lung cancer persisted after June 2018, nor that his breathing problems are caused by residuals of lung cancer rather than COPD. As the preponderance of the evidence shows that the Veteran had no residuals of left lung adenocarcinoma after January 1, 2019, entitlement to a compensable evaluation following that date must be denied. The Board has also considered the Veteran's argument (through his representative) that his disability is not subject to a mandatory reexamination. His representative asserts that the mandatory examination following treatment under DC 6819 should only be scheduled when there has been no recurrence, and since recurrence occurred in this case, the 100 percent rating should continue. Notably, the criteria under DC 6819 do not state that the 100 percent rating is to be continued even past the six-month period until such date as a VA examination is performed. Rather, there is to be a mandatory VA examination upon which any residuals are to be rated, assuming there has not been a recurrence or metastasis. In other words, DC 6819 provides for "separate successive ratings for different conditions"-namely, the active malignancy, and then any residuals. Rossiello v. Princip, 3 Vet. App. 430, 432-33 (1992). The discontinuance of the 100 percent rating is not predicated on a VA examination but is appropriate when there is medical evidence of no continuing malignancy (e.g., recurrence or metastasis). Given the temporal nature inherent in the DC rating criteria, it would be impermissible to continue a 100 percent rating on a permanent basis (indefinitely) without evidence of a currently active disability. Id. (finding that a 100 percent evaluation under a prior, substantially similar version of DC 6819 ceased to exist by operation of law because the applicable diagnostic code contained a temporal element for that evaluation). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shermila Sundquist 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.