Citation Nr: 21013420 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 17-16 662 DATE: March 9, 2021 ORDER Entitlement to a compensable rating for service-connected squamous cell lung cancer is denied. FINDING OF FACT During the entire appeal period, the medical evidence of record demonstrated that there had been no local reoccurrence or metastasis of the Veteran’s lung cancer and no surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure for his lung cancer. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for service-connected squamous cell lung cancer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105(e), 4.1-4.7, 4.97, Diagnostic Code (DC) 6819. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1968 to November 1969, to include service in Vietnam. On July 6, 2020, the Board was informed of the Veteran’s death in June 2020. We are sorry for your loss and thankful for the Veteran’s service. In December 2020, the AOJ granted the appellant’s request for substitution in this case. The Veteran testified at a Board hearing at the local Regional Office in February 2020 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. The Board notes that entitlement to service connection for diabetes mellitus, type II, was referred to the AOJ for appropriate action in the June 5, 2020 Board decision, but it has not yet been adjudicated. The Veteran’s claims were previously remanded by the Board in a June 2020 decision. The Board finds that the RO has substantially complied with the June 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable rating for service-connected squamous cell lung cancer The Veteran contended that his current symptoms and treatment for chronic obstructive pulmonary disease (COPD) was the result of his treatment for squamous cell lung cancer. Specifically, he contended that his COPD did not manifest until after the surgical removable of part of his left lung and was due to his lung cancer. The Veteran was originally granted service connection with a noncompensable rating in a February 2016 rating decision and effective October 14, 2015 for his lung cancer disability under DC 6819. Diagnostic Code 6819 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 an examination at 6 months to determine if the condition is in remission. If there is no local recurrence or metastasis, the condition is to be rated on the residuals. As an initial matter, the Board notes that the Veteran was diagnosed with squamous cell lung cancer in 2001. He underwent a left upper lobectomy and radiation in 2001. The Veteran’s private treatment records from 2001 indicate the Veteran had experienced wheezing and shortness of breath for about a year. A CAT scan showed multiple lung masses and asthmatic bronchitis. The treatment notes also indicated a 35-pack year history of smoking but quit following his diagnosis. In January 2008, a chest x-ray showed no acute pathology, but showed post-operative changes. The Veteran’s pulmonology notes were absent for treatment or diagnosis of COPD until March 2008. A March 24, 2008 treatment note indicated the Veteran had developed symptoms since January 2008. An April 2008 CT scan showed scarring on either side of the mediastinum, noted to probably be a sequalae of radiation therapy. Treatment notes from February 2009 indicated the Veteran’s CT had remained stable, and there was no evidence of recurrence of cancer. A treatment note from November 2012 indicated the Veteran’s lung cancer was stable without evidence recurrent disease. The Veteran was afforded a VA examination for his respiratory conditions in January 2016. The Veteran was noted have diagnoses of COPD from 2008 and squamous cell lung cancer from 2001. The examiner noted the Veteran’s treatment was completed in 2002. The examiner noted a stable course since treatment was completed. The VA examiner indicated the Veteran required the use of inhalational bronchodilator therapy intermittently due to his COPD. The examiner determined the Veteran’s squamous lung cancer was in remission following a left upper lobe resection and radiation therapy, and the Veteran had no residual conditions or complications due to the neoplasm or its treatment. The Veteran’s pulmonary function testing showed an FVC of 113 percent of predicted pre-bronchodilator and 120 percent post-bronchodilator. The examiner indicated that the Veteran’s COPD was predominantly responsible for the limitation in pulmonary function. Finally, the examiner noted the Veteran’s cancer was in remission, he was no longer receiving treatment, and there were no additional diagnoses warranted for the residuals of the cancer. In February 2016, a different VA examiner submitted an addendum opinion that it was at least as likely as not that all the Veteran’s current treatment requirements, respiratory symptoms, and PFT abnormalities, and pulmonary treatments were due to his COPD. As rationale, the examiner noted all treatment has been directed at COPD and asthma and diagnostic testing shows no recurrence of the cancer or pulmonary fibrosis. In January 2021, another VA examiner reviewed the prior VA examinations and the Veteran’s medical records. The examiner noted the Veteran remained in remission for his lung cancer until his death. The examiner noted that lung cancer was noted a factor in the Veteran’s death. The examiner opined that the Veteran’s lung cancer was not a factor in any lung-related symptoms, but instead smoking-related COPD was. The examiner further opined that the Veteran’s COPD was not part-and-parcel and/or associated with the Veteran’s lung cancer. The examiner indicated the Veteran’s COPD was proximately due to smoking as lung cancer does not cause COPD and the two conditions are not causally related. The examiner concluded that all of the Veteran’s pulmonary symptoms at the time of his death and post-treatment for lung cancer were attributable to COPD as the lung cancer had resolved with no residuals post-surgery and radiation. The examiner further stated “unequivocally” that the Veteran’s lung cancer diagnosis had nothing whatsoever to do with his obstructive pulmonary disease. The examiner noted the Veteran’s lay statements concerning onset of symptoms, but further indicated that there was no relation between the conditions. The Veteran’s treating physician indicated that his COPD was due to his lung cancer. However, the Board never received an opinion from any physician supporting that assertion. While the Veteran believed his COPD and other pulmonary symptomology was related to his service-connected lung cancer. The Veteran in this case was not competent to provide a causal relationship regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body, pathology, and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinion of the VA examiners. Therefore, based on the preponderance of the evidence, the Veteran did not experience any local recurrence, metastasis, or residuals from his squamous cell lung cancer during the appeal period. Thus, a 100 percent rating was not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Taylor, 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.