Citation Nr: 21027183 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-16 990A DATE: May 4, 2021 REMANDED An initial compensable rating for residuals of lung cancer with a right lower lung lobectomy prior to November 13, 2017; and in excess of 30 percent thereafter. REASONS FOR REMAND The Veteran served on active duty from June 1970 to January 1972. This case comes to the Board from an October 2013 rating decision. In October 2018, the Veteran testified at a Board hearing. In July 2019, the Board remanded the issues of service connection for right and left knee disorders, along with the staged initial ratings for residuals of lung cancer with a right lower lobectomy, for additional development. By a July 2020 rating decision, service connection was granted for arthroplasty, instability, and scars of the right and left knee. The awards represent a full grant of the benefits sought with respect to those issues. An initial compensable rating for residuals of lung cancer with a right lower lung lobectomy prior to November 13, 2017; and in excess of 30 percent thereafter. Pursuant to the Board's July 2019 remand, the Veteran was afforded a VA examination in October 2019. Although the October 2019 VA examination report reflects that the Veteran underwent a lobectomy in 2013, the surgical report reflects an anatomic right lower lobectomy in June 2009. See November 2012 Medical Treatment RecordsNon-Government Facility; November 2012 VA 21-526 Veterans Application for Compensation or Pension. The Board notes that an opinion based, at least in part, on an inaccurate factual premise, is of diminished probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.). In addition, the VA examiner stated that the Veteran did not have a right upper extremity condition related to the service-connected right lower lung lobectomy or surgical scar, noting that the scar did not extend to the right upper extremity or affect range of motion, and that right thorax pain was due to the service-connected scar. However, the opinion does not address the right middle lobe opacity with loculated effusion noted to be likely related to the lobectomy on VA examination in November 2017, or the noted inability to pick up anything, or climb, push, or carry; or, the Veteran's competent description of symptoms, including severe cramps with twisting and driving, as well as numbness in on his right side, since the lobectomy. See October 2018 Board hearing testimony; August 2015 VA treatment records; January 2014 notice of disagreement. The Board notes that even without a current diagnosis, reports of pain may constitute a current disability to the extent they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that pain causing functional impairment can constitute a current disability). As such, the opinion is not completely adequate. Thus, a new VA examination with a medical opinion is warranted. In view of the remand, outstanding VA treatment records should be associated with file. The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records. 2. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to assess the severity of the service-connected residuals of lung cancer with a right lower lung lobectomy. All required tests should be performed. The claims file, including this and the prior remand, as well as the November 2017 VA examination report, should be reviewed by the examiner. The examiner should identify all residuals. In doing so, the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that symptoms to include pain in the right upper extremity and/or right side is related to the right lower lung lobectomy, and comment on any findings regarding scar tissue in the surgical area considering the Veteran's statements in that respect, including severe cramps with twisting and driving, along with numbness of the right upper extremity/right side, as well as right middle lobe opacity with loculated effusion noted to be likely related to the lobectomy, and referencing functional impairment, as reflected in the November 2017 VA examination report. If there are flare-ups of any associated residuals, including of the right upper extremity/right side, but if the examination is not conducted during a flare-up, the symptoms and functional impairment during a flare-up should be addressed with consideration of the evidence, to include the Veteran's statements. Rationale for all opinions expressed should be provided. If the reviewing clinician is unable to provide the requested opinions without resort to speculation, it must be so stated, and he or she must provide the reasons why an opinion would require speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.