Citation Nr: 21031823 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-22 539 DATE: May 24, 2021 ORDER From June 10, 2014, entitlement to a 100 percent disability rating for lung cancer residuals, left upper lobe lobectomy is granted. REMANDED From January 22, 2013 to June 9, 2014, entitlement to a compensable rating for lung cancer residuals, left upper lobe lobectomy is remanded. FINDING OF FACT From June 10, 2014 the Veteran's cancer residuals, left upper lobe lobectomy disability manifested in malignant neoplasms. CONCLUSION OF LAW From June 10, 2014, the criteria for a 100 percent disability rating for the Veteran's cancer residuals, left upper lobe lobectomy have been met. 38 U.S.C. §§ 1155 (2018); 38 C.F.R. §§ 4.1-4.16, 4.97, Diagnostic Code 6819 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to January 1973. The Veteran died in July 2015, and the Appellant is his surviving spouse. In February 2016, the Board remanded this matter for the Agency of Original Jurisdiction (AOJ) to determine if the Appellant may proceed on the Veteran's claims on basis of substitution. At the time of his death, the Veteran's increased rating claim was pending. In July 2015, the Regional Office (RO) received the Appellant's request to be a substitute claimant in the Veteran's pending appeal. The RO issued an August 2019 letter informing the Appellant that her request for substation was granted. Accordingly, the Appellant has been recognized as the claimant throughout the course of the appeal. 38 U.S.C. § 5121A. 38 C.F.R. §§ 3.103(b)(1), 3.1010(e)(1). In a January 2020 rating decision, the RO granted a 100 percent rating for lung cancer from July 15, 2015, based on active malignancy. The matter returned to the Board, and in April 2020, was remanded again to ensure that the claims file contained all the Veteran's medical records including private treatment records and VA treatment records. Additionally, the claim was remanded for a VA examiner to provide a retrospective opinion concerning the Veteran's disability. Additional VA treatment records and private treatment records were added to the claims file. Retrospective opinions were provided in November 2020 and December 2020. As discussed in the remand portion below, the Board finds that the retrospective did not fully address the remand directives. However, a portion of the opinion gave an adequate rationale that was sufficient to decide part of the increased rating claim. Neither the Appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's left lung lobectomy, cancer residuals is rated under Diagnostic Code 6819. 38 C.F.R. § 4.97. Under this Diagnostic Code, a 100 percent rating is warranted for malignant neoplasms, any specified part of respiratory system exclusive of skin growths. The rating of 100 percent shall also continue beyond the cessation of any surgical, x-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after discontinuance of such treatment, the appropriate disability rating shall be determined by a mandatory VA examination. In a February 2013 rating decision, service connection for the Veteran's residuals of lung cancer was granted with an initial 100 percent rating effective January 30, 2012 which was the date of claim. The rating decision assigned a noncompensable rating effective January 22, 2013, the date of his VA examination. The examination report noted that he was diagnosed with malignant lung cancer in December 2011. It was treated surgically, with no chemotherapy or radiation treatments and he left the hospital 18 days after his surgery. The examiner stated that he had emphysema due to tobacco use from age 18 until one year prior to the examination. He used medication for emphysema. The examiner found that the Veteran did not have residual conditions or complications due to his lung cancer or its treatment. He underwent a pulmonary function test (PFT). Post-bronchodilator, his FVC was 89 percent predicted. His FEV-1 was 62 percent predicted. His FEV-1/FVC was 69 percent predicted. His DLCO was 50 percent predicted. The examiner stated that the condition that is predominantly responsible for the limitation of pulmonary function was emphysema. The Veteran's records were reviewed by VA examiners in November 2020 and December 2020. The examiners noted there was no documentation of any tumor prior to June 2015. Nevertheless, based on the extent of metastasis present, it was likely that the Veteran's tumor was present 6 to 12 months prior. The December 2020 VA examiner discussed a study which evaluated the recurrence of metastatic diseases after undergoing a complete resection and noted that the median time of recurrence in the study was 11.5 months. The Board finds that the VA examiners' opinions provided competent, credible evidence that the Veteran's disability manifested in malignant neoplasms a year prior to date noted in his treatment records. Consequently, as there is not probative evidence against the claim, entitlement to a 100 percent disability rating for residuals from a left lung lobectomy from June 10, 2014 is granted. REASONS FOR REMAND The April 2020 Board remand instructed the VA examiners to provide a retrospective opinion on the Veteran's condition, to include providing an opinion concerning whether he experienced any respiratory conditions that were attributable to his residuals from his lung cancer. The November 2020 VA examiner stated that it was impossible to attribute any specific pulmonary function or disease as caused by a residual of the Veteran's lung cancer because of "...the complex interplay between malignancy and obstructive disease." According to the remand directives, if the examiner was not able to estimate the amount of respiratory impairment was due to lung cancer residuals as opposed to other respiratory problems such as COPD and emphysema, the examiner was to clearly explain why this information cannot be provided. The rationale provided by the November 2020 examiner is not sufficiently detailed to be adequate. Further clarification is needed. The matters are REMANDED for the following action: 1. Provide the Veteran's claims file to a suitable clinician so a supplemental opinion may be provided. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must opine as to the following: a.) For the period prior to June 10, 2014, to the extent possible, determine the amount of respiratory impairment attributable to the Veteran's lung cancer residuals as opposed to respiratory conditions for which the Veteran was not service-connected, such as emphysema. If a significant portion of the Veteran's respiratory impairment documented in clinical findings, especially the January 2013 PFT, is attributable to other disability such as emphysema, please estimate to the extent possible what clinical findings would best represent the level of impairment attributable to lung cancer residuals alone. If this estimate is not reasonably possible, this should be clearly stated with an explanation of the reason this information/estimate cannot be provided. The clinician must provide a complete rationale for all opinions provided. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.