Citation Nr: 21039776 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-45 583 DATE: July 1, 2021 REMANDED Entitlement to an initial compensable rating, a rating in excess of 20 percent from October 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. 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 and December 2020. 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 October 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 December 2020, 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 provide a full description of the disability, including identifying whether paralysis is indicated on the left and right side of the diaphragm. The VA examiner was also directed to explain how the degree and location of any paralysis is related to the rating criteria which is applied to the disability. The Veteran was afforded a VA examination in April 2021; however, the VA examiner did not address the issues as directed in the Board's December 2020 remand. 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: Schedule the Veteran for a VA examination (or telehealth interview, if an in-person examination is not feasible), preferably with a clinician who has not previously examined the Veteran, to determine the current nature and severity of his diaphragm paralysis and nerve damage due to surgery. After reviewing the entire claims file, the examiner should provide a full description of the disability, including identifying whether paralysis is indicated on the left and right side of the diaphragm, if this can be determined. In doing so, the examiner must address the Veteran's contentions 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. The examiner should perform all required testing and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (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. 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.