Citation Nr: 21029477
Decision Date: 05/13/21	Archive Date: 05/13/21

DOCKET NO. 17-39 407
DATE: May 13, 2021

REMANDED

Entitlement to a rating in excess of 30 percent for tuberculosis pleural effusion with minimal inactive pulmonary tuberculosis and residuals status post lung cancer is remanded.

REASONS FOR REMAND

The Veteran served on active duty from November 1967 to October 1970. 

A hearing was held before the undersigned in March 2020. The transcript is of record. During the hearing, the undersigned clarified the issues, asked if there was outstanding evidence and held the file open for the submission of evidence. Such actions comply with 38 C.F.R. § 3.103.

The Board remanded the matter in May 2020 for a VA examination for the tuberculosis pleural effusion with minimal inactive pulmonary tuberculosis and residuals status post lung cancer. Specifically, testing for pulmonary function had not been undertaken. Further, the medical evidence showed possible lung cancer residuals not contemplated by the rating. 

In addition, the AOJ was to consider whether a 100 percent rating was protected in light of a decision noting that the evaluation had been in effect since 1971 (the most recent codesheet notes much less time  about one year in the early 1970s  but a July 2013 rating decision made a finding of a 100 percent rating being in effect from October 1971). 

The RO did not fully comply with the above instructions. The resulting VA examination for pulmonary disease did not contain pulmonary function testing, due to the use of face mask per CDC guidelines to reduce spread of COVID 19. It included other findings, but nothing regarding residuals of cancer.

However, the relevant pulmonary function testing was undertaken by a private doctor in September 2020 and were submitted by the representative in November 2020. Therefore, pulmonary functioning testing does not need to be undertaken again. 

An examination scheduling request dated in October 2020 noted that a Respiratory Conditions (Other than Tuberculosis and Sleep Apnea) Disability Benefits Questionnaire (DBQ) is required for lung cancer residuals, but no such document is of record. 

Given the above, an additional remand is necessary. 

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his tuberculosis pleural effusion with minimal inactive pulmonary tuberculosis and residuals status post lung cancer. In particular, findings regarding the residuals of lung cancer are sought. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Residuals of lung cancer should be evaluated and reported. 

2. The AOJ must review the rating decisions and determine if a 100 percent rating is now protected considering a decision noting that the evaluation had been in effect since 1971. The AOJ is at liberty to seek guidance from either Compensation Service or the office of the General Counsel.  

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	P. Yoffe, 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.