Citation Nr: 21007314 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-17 133 DATE: February 9, 2021 REMANDED Entitlement to a compensable evaluation for lung cancer, to include the propriety of the reduction from 100 percent to 0 percent effective May 1, 2015, is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Army from May 1968 to January 1970. This matter is on appeal from a February 2015 rating decision. The Veteran was afforded a September 2020 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. The Board finds that remand is warranted for additional development. Review of the medical treatment record shows the Veteran reported having followups at Karmanos, a private provider, for treatment of his lung cancer to include periodic CT scans. In an April 2018 VA examination, the Veteran indicated that a June 2017 CT scan held at Karmanos was negative for metastasis. However, review of the record does not show that any records of the Veteran’s visits to the private provider at Karmanos have been associated with the record. The Board next notes that the Veteran was originally granted a 100 percent evaluation under Diagnostic Code (DC) 6819 for lung cancer. 38 C.F.R. § 4.97, DC 6819. DC 6819 provides for a 100 percent evaluation beyond the cessation of any surgical or other therapeutic procedure, with periodic examinations to determine to determine if the condition was in remission. If there is no local recurrence or metastasis, the condition is to be rated on the residuals. The Veteran reported undergoing surgery in January 2013 to remove a portion of his left lung. Under the provisions of 38 C.F.R. § 3.344 (c), the Veteran underwent VA examination in April 2014 where the Veteran reported that he was told that his cancer was “gone the last time he had tests” and the examiner found no current or residual disability or evidence of local recurrence of metastasis. However, the examiner noted that no pulmonary function tests (PFT) were performed at the exam; instead the examiner relied upon November 2012 PFT results to evaluate the Veteran. The Veteran submitted a May 2016 private respiratory DBQ in which the private provider referenced August 2012 PFT results. As noted above, these PFT results were taken prior to the Veteran’s January 2013 lung surgery and no current PFTs were taken for either examination. The April 2018 VA examination did not perform a PFT test but referred to a March 2018 PFT. The VA examiner noted overall the PFT was a “suboptimal study because of the lack of reproducibility” and warned that “any interpretation of this study should be read with caution.” Review of the March 2018 PFT showed that “repeatability not met… [the Veteran] was unable to complete more than 5 FVC tries due to fatigue and dyspnea…DLCO three attempts with difficulty inhaling quickly.” The examiner did not discuss or address why DLCO testing results would not be useful or valid to evaluate the Veteran’s lung condition. Accordingly, the Board finds a remand is necessary to obtain outstanding medical records; obtain an adequate study and opinion to clarify the current nature and severity of the Veteran’s lung cancer for rating purposes pursuant to 38 C.F.R. § 4.96 (d)(2); and to satisfy VA’s duty to assist and ensure that there is a complete record upon which to decide the Veteran’s claim. The Board further finds that a records-based examination is permissible to address the Veteran’s claim to the extent that this may be accomplished without an in-person examination due to the current public health emergency in the United States. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Request that the Veteran provide the names and addresses of any and all healthcare providers who provided treatment for his lung cancer (including chest CT scans, x-rays, and PFT); in particular, records of treatment from any private provider to include Karmanos. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims folder. 3. Return the claims file to the VA examiner who provided the April 2018 medical opinion on the Veteran’s lung cancer. The record and a copy of this remand must be made available to the examiner. If the examiner is not available, request an opinion from another qualified VA examiner. If the examiner determines that an examination of the Veteran is necessary to provide the requested opinion with rationale, then such examination should be scheduled. The VA examiner is asked to: (a.) Comment on the status of the Veteran’s lung cancer and identify the nature and severity of any residuals. (b.) 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 appropriate rating criteria, including completing and reporting FEV-1 and FVC predicted, DLCO (SB) testing, including both pre-bronchodilator results, and post-bronchodilator results. (c.) The presence or absence of right ventricular hypertrophy, cor pulmonale, pulmonary hypertension, episodes of acute respiratory failure, or the use of outpatient oxygen therapy should also be documented. (d.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s lung cancer alone and discuss the effect of the Veteran’s lung cancer on any occupational functioning and activities of daily living. (e.) The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. 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.