Citation Nr: 21027729 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-05 708 DATE: May 6, 2021 ORDER Entitlement to a permanent and total evaluation for lung cancer for substitution purposes is granted. FINDING OF FACT The total disability evaluation of the Veteran's lung cancer continued throughout his lifetime. CONCLUSION OF LAW The criteria for a permanent and total evaluation for lung cancer for substitution purposes have been met. 38 U.S.C. §§ 1155, 1502; 5107; 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.15, 4.130, Diagnostic Code 6819 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to April 1970. The Veteran died in March 2018. The appellant is the Veteran's surviving spouse, who has been substituted as the claimant for purposes of processing the claim to completion. See 38 U.S.C. § 5121A. In a February 2021 Board hearing, the appellant testified before the undersigned Veterans Law Judge. A hearing transcript has been associated with the claims file. At the February 2021 hearing, the appellant and her representative noted that prior to the Veteran's death, he had a claim pending for a total permanent rating for his service-connected lung cancer disability. The appellant and her representative explained that despite the Veteran's death, a finding of a permanent and total evaluation for lung cancer for the Veteran would be advantageous for the appellant regarding her state law taxes. Notably, if the Veteran's lung cancer was determined to be permanent and total, it would be a tax rate on the appellant's property which would be financially beneficial to the appellant. Accordingly, a case or controversy remains in this matter which will be adjudicated by the Board. Substitution The Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008), created a new Section, 5121A, under Chapter 38 of the United States Code relating to substitution in case of death of a claimant who dies on or after October 10, 2008. As provided for in the statute, a person eligible for substitution will include "a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title." 38 U.S.C. § 5121A. The Board notes Reliford v. McDonald, 27 Vet. App. 297 (2015), in which the United States Court of Appeals for Veterans Claims acknowledged VA Fast Letter 10-30 (Aug. 10, 2010), recognizing that it is VA policy to accept a claim for DIC and accrued benefits as a substitution request. See also 38 C.F.R. § 3.1010 (c)(2). As noted above, the Veteran died in March 2018. The appellant filed an application for dependency and indemnity compensation (DIC) in April 2018, which constituted an application for substitution. In May 2018, the RO found that the appellant was entitled to service-connected survivor benefits/DIC benefits. The Board notes that the issues before the Board here have been recharacterized as for substitution purposes. Although it may appear that, because the appellant's claims are now before the Board, it does not make a difference whether they are adjudicated as accrued benefits claims or as requests for substitution. There is, however, a significant difference. When adjudicating the former, only the evidence of record at the time of the Veteran's death may be considered as the basis for a determination on the merits of a claim. By contrast, when a properly qualified substitute claimant "continues the pending claim in the footsteps of the veteran" after his or her death, additional development of the record may be undertaken if that is deemed appropriate and/or necessary in order to adequately adjudicate the merits of the claim. Unlike accrued benefits claims, the record is not closed on the date of death of the original claimant, but rather, remains open for the submission and development of any pertinent, additional evidence. Thus, it is to the appellant's advantage to have her claims adjudicated as a substitute claimant pursuant to 38 U.S.C. § 5121A, rather than as they were originally adjudicated. In other words, because the appellant is a substitute claimant in this case, the Board will consider all evidence submitted in this case, to include evidence submitted both prior to and after the Veteran's death. Permanent Rating Generally, total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340 (a). Under 38 C.F.R. § 3.340 (b), permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. The permanent loss or loss of use of both hands, or of both feet, or of one hand and one foot, or of the sight of the eyes, or becoming permanently helpless or bedridden constitutes permanent total disability. Diseases and injuries of long standing which are actually totally incapacitating will be regarded as permanently and totally disabling when the probability of permanent improvement under treatment is remote. Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. Other factors to consider include failure to pursue treatment and whether the disability has been shown to be of longstanding duration, actually totally incapacitating, or of such a nature as to render the probability of permanent improvement remote. See KL v. Brown, 5 Vet. App. 205, 208 (1993). In October 2015, the RO granted the Veteran service connection for lung cancer and assigned a 100 percent disability rating, effective July 29, 2015 under Diagnostic Code 6819. A subsequent December 2015 rating decision found that a clear and unmistakable error (CUE) was made and the effective date for the 100 percent rating for the service-connected lung cancer was assigned from June 17, 2015. However, the assigned 100 percent rating was not permanent due because the RO found there was a likelihood that this disability would improve. The Veteran filed a claim for a permanent total evaluation for his lung cancer in December 2015. As noted above, the Veteran was granted service connection for lung cancer under Diagnostic Code 6819. Under Diagnostic Code 6819, a 100 percent disability rating is assigned for malignant neoplasms of any specified part of the respiratory system, including the larynx. See 38 C.F.R. § 4.97. Diagnostic Code 6819 also contains a temporal element for the continuance of a 100 percent rating for respiratory system cancer residuals. In the absence of local reoccurrence or metastases, the 100 percent rating ceases to exist six months after discontinuance of the treatment described in the rating criteria, and the disability is to be rated based on its residuals. See Rossiello v. Principi, 3 Vet. App. 430, 432-33 (1992) (finding that a 100 percent rating for mesothelioma ceased to exist by operation of law because the applicable Diagnostic Code [6819] involved contained a temporal element for that 100 percent rating). The Veteran underwent a VA examination in April 2016. The Veteran had a history of right lung cancer and right lobectomy as well as left lung cancer diagnosed in December 2015. He completed 9 rounds of chemotherapy. The Veteran's residuals included chronic shortness of breath and chronic cough with minimal exertion. The examiner noted that she was unable to comment on the prognosis for improvement of the lung cancer as it was beyond her scope of expertise. The Veteran underwent a VA examination in December 2016. The Veteran had restrictive lung disease and was status post-surgery for adenocarcinoma of the right lung as he had a right upper and middle lobectomy. It was noted that the Veteran had completed chemotherapy and radiation but was hospitalized multiple times for his breathing complaints with the most recent hospitalization a month ago. Even though the Veteran chemotherapy and radiation, he was diagnosed with stage IV lung cancer of his left lung in December 2015. Due to his right upper and mid lob resection and consolidation of the left lung from post radiation pneumonitis, the Veteran had significant dyspnea on exertion. He was on oxygen and with oxygen, he could walk up to a block. Pulmonary function testing (PFT) was not conducted as the Veteran required outpatient oxygen therapy. The Veteran's death certificate indicated that the Veteran died on March [REDACTED], 2018 with the cause of death being carcinoma of the lung with metastases. The Board finds that the Veteran's total disability evaluation for lung cancer reasonably continued throughout his lifetime. In this regard, the VA examinations of record show that the Veteran continued to experience severe lung cancer symptoms. As noted above, the 100 percent rating under Diagnostic Code 6819 in the absence of local reoccurrence or metastases, the ceases to exist six months after discontinuance of the treatment described in the rating criteria, and the disability is to be rated based on its residuals. The record demonstrates that the Veteran did not absence of local reoccurrence or metastases of his lung cancer as his treatment continued throughout his lifetime. As noted by the December 2016 VA examiner, the Veteran had completed chemotherapy and radiation but was hospitalized multiple times for his breathing complaints with the most recent hospitalization a month ago and he was also diagnosed with stage IV lung cancer of his left lung in December 2015. The lung cancer also resulted in the Veteran's death in March 2018. As such, the Board finds the Veteran's lung cancer was of longstanding duration, totally incapacitating, and of such a nature which rendered the probability of permanent improvement remote. Thus, the Board finds that, resolving reasonable doubt in the appellant's favor, the evidence shows that a permanent total evaluation for lung cancer for substitution purposes is warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.