Citation Nr: 21072638 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-45 583 DATE: December 3, 2021 REMANDED Entitlement to an initial compensable rating from December 2, 2011, a rating in excess of 20 percent from August 31, 2012, to June 23, 2014, a rating in excess of 50 percent from June 24, 2014 to December 19, 2019, and a rating in excess of 90 percent from December 20, 2019 for diaphragm paralysis and nerve damage due to surgery, where compensation has been awarded under 38 U.S.C. § 1151, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 20, 2019, is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to May 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a hearing before the undersigned in March 2019. This matter was previously remanded by the Board in July 2019, December 2020, and July 2021. The case has been returned to the Board at this time for further appellate review. 1. Entitlement to an initial compensable rating, a rating in excess of 20 percent from August 31, 2012, to June 23, 2014, and a rating in excess of 50 percent from June 24, 2014 to December 19, 2019, for diaphragm paralysis and nerve damage due to surgery, where compensation has been awarded under 38 U.S.C. § 1151, is remanded. This matter was remanded in July 2021, in part, for a new VA examination regarding the Veteran's diaphragm paralysis and nerve damage due to surgery. In this regard, the VA examiner was directed to identify whether paralysis is indicated on the left and right side of the diaphragm. The VA examiner was also directed to address the Veteran's contentions that there is paralysis on both sides of his diaphragm in providing such opinion. The Veteran was afforded a VA examination in August 2021, and a VA opinion was obtained in September 2021; however, neither VA clinician addressed whether paralysis is indicated on the left side of the diaphragm nor did they address the Veteran's contentions. Accordingly, remand is necessary to ensure compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to TDIU prior to December 20, 2019, is remanded. The issue of entitlement to TDIU prior to December 20, 2019, is inextricably intertwined with the rating assigned for the Veteran's diaphragm paralysis and nerve damage due to surgery, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: Obtain an opinion from a qualified clinician regarding the nature and severity of the Veteran's diaphragm paralysis and nerve damage due to surgery. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. After review of the claims file, and examination of the Veteran if deemed necessary, the examiner should provide a full description of the disability, including identifying whether paralysis is indicated on the left side of the diaphragm, if this can be determined. If this cannot be determined, the examiner must provide a detailed explanation as to why. In providing this opinion, the examiner must address the Veteran's contentions that he has been told that there is paralysis on both sides of his diaphragm. The examiner should explain how the degree and location of any paralysis is related to the rating criteria which is applied to the disability. (Continued on the next page) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so; however, the Veteran's history of symptoms capable of lay observation cannot be dismissed solely on the basis that they are not recorded in contemporaneous treatment records. All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Elias, 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.