Citation Nr: 1312955 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 12-22 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to a combined schedular rating for all service-connected disabilities higher than 80 percent as a result of a December 2010 rating decision, to include the issue of whether the Regional Office properly calculated the combined rating. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Debbie A. Breitbeil, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from May 1952 to December 1957. This matter is before the Board of Veterans' Appeals (Board) on appeal of a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. As a consequence of a December 2010 rating decision, in which the RO granted higher ratings for two service-connected disabilities (i.e., renal insufficiency to 40 percent from 10 percent, and bilateral hearing loss to 30 percent from 10 percent), the RO calculated the Veteran's combined schedular rating for all service-connected disabilities as 80 percent. In a July 2011 letter, the Veteran disputed the calculation of the combined disability rating, and the RO responded in an August 2011 letter with a general explanation of how his combined rating was calculated. In an April 2012 letter, the Veteran disagreed with the RO's explanation, asserting that he was not receiving "full credit" for the two disabilities that were assigned higher ratings. Following issuance of a statement of the case in June 2012, the Veteran perfected his appeal to the Board by filing a substantive appeal in August 2012. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT As a result of a December 2010 rating decision, which granted higher ratings of 40 percent for renal insufficiency and 30 percent for bilateral hearing loss, the combined disability rating for all of the Veteran's service-connected disabilities is 80 percent, upon application of the Combined Rating Table and with application of the bilateral factor for his lower extremity disabilities. CONCLUSION OF LAW The RO has properly calculated the combined schedular rating for all of the Veteran's service-connected disabilities as 80 percent; the claim for a higher combined rating lacks legal merit. 38 U.S.C.A. § 1155, 5107(b) (West 2002); 38 C.F.R. § 4.25, 4.26 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Preliminarily, the Board is required to address the VCAA, which provides, among other things, that the VA shall make reasonable efforts to notify a claimant of the relevant evidence necessary to substantiate a claim for benefits under laws administered by the VA. The VCAA also requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002). In this case, the RO has not provided the Veteran notice of the VCAA. In any event, the factual evidence is not dispositive here. Rather, this case involves regulatory interpretation. Because the VCAA has no effect on claims when the question is limited to a matter of law, including regulatory interpretation, the Board need not determine if VA met the duty to assist and duty to notify requirements of the VCAA. See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000). Factual Background The Veteran contends that after adjudicating several of his claims in a December 2010 rating decision, the RO erred in computing the combined schedular rating for all of his service-connected disabilities. In that rating decision, the RO granted higher ratings of 40 percent (up from 10 percent) for renal insufficiency and 30 percent (up from 10 percent) for bilateral hearing loss. Prior to the December 2010 rating decision, the Veteran's combined schedular rating was 70 percent; as a result of the higher ratings assigned for the renal insufficiency and bilateral hearing loss, his new combined schedular rating to be calculated as 80 percent. The Veteran argues that the RO miscalculated the combined schedular rating and that he is entitled to a higher combined rating. He asserts that the rating decision, which essentially awarded an increased rating totaling 50 percent between the two disabilities (i.e., an increase of 30 percent for the kidney disorder plus an increase of 20 percent for the hearing loss), should have resulted in a combined rating higher than 80 percent (i.e., more than just a 10 percent increase from the former combined rating level) for all his service-connected disabilities. Following the December 2010 rating decision, the Veteran's service-connected disabilities and the corresponding rating for each disability are: renal insufficiency (40 percent), bilateral hearing loss (30 percent), lumbar strain with degenerative changes (20 percent), status post left knee surgery with residual instability (10 percent), left knee injury, status post surgery with residual scar and degenerative arthritis (10 percent), esophagitis related to gastroesophageal reflux disease (10 percent), degenerative joint disease of the right hip (10 percent), degenerative joint disease of the left hip (10 percent), left lower extremity sensory dysfunction associated with lumbar strain (10 percent), and scar, status post right inguinal hernia (0 percent). Legal Criteria Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Calculating the proper combined evaluation requires the use of 38 C.F.R. § 4.25 and the Combined Ratings Table found therein (it is noted that the Veteran received a copy of the ratings table in the statement of the case mailed to him in June 2012). As noted in the regulation, Table I, Combined Ratings Table, results from the consideration of the efficiency of the individual as affected first by the most disabling condition, then by the less disabling condition, then by other less disabling conditions, if any, in the order of severity. Thus, a person having a 60 percent disability is considered 40 percent efficient. Proceeding from this 40 percent efficiency, the effect of a further 30 percent disability is to leave only 70 percent of the efficiency remaining after consideration of the first disability, or 28 percent efficiency altogether. The individual is thus 72 percent disabled, as shown in Table I opposite 60 percent and under 30 percent. 38 C.F.R. § 4.25. To use Table I, the disabilities will first be arranged in the exact order of their severity, beginning with the greatest disability and then combined with use of Table I. For example, if there are two disabilities, the degree of one disability will be read in the left column and the degree of the other in the top row, whichever is appropriate. The figures appearing in the space where the column and row intersect will represent the combined value of the two. This combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. Thus, with a 50 percent disability and a 30 percent disability, the combined value will be found to be 65 percent, but the 65 percent must be converted to 70 percent to represent the final degree of disability. Similarly, with a disability of 40 percent, and another disability of 20 percent, the combined value is found to be 52 percent, but the 52 percent must be converted to the nearest degree divisible by 10, which is 50 percent. If there are more than two disabilities, the disabilities will also be arranged in the exact order of their severity and the combined value for the first two will be found as previously described for two disabilities. The combined value, exactly as found in Table I, will be combined with the degree of the third disability (in order of severity). The combined value for the three disabilities will be found in the space where the column and row intersect, and if there are only three disabilities will be converted to the nearest degree divisible by 10, adjusting final 5's upward. Thus, if there are three disabilities ratable at 60 percent, 40 percent, and 20 percent, respectively, the combined value for the first two will be found opposite 60 and under 40 and is 76 percent. This 76 will be combined with 20 and the combined value for the three is 81 percent. This combined value will be converted to the nearest degree divisible by 10 which is 80 percent. The same procedure will be employed when there are four or more disabilities. 38 C.F.R. § 4.25(a); see 38 C.F.R. § 4.25, Table I. When a partial disability results from disease or injury of both arms, or of both legs, or of paired skeletal muscles, the ratings for the disabilities of the right and left sides will be combined as usual, but 10 percent of this value will be added (i.e., not combined) before proceeding with further combinations, or converting to degree of disability. The bilateral factor will be applied to such bilateral disabilities before other combinations are carried out and the rating for such disabilities including the bilateral factor will be treated as one disability for the purpose of arranging in order of severity and for all further combinations. 38 C.F.R. § 4.26. The use of the terms "arms" and "legs" is not intended to distinguish between the arm, forearm and hand, or the thigh, leg and foot, but relates to the upper extremities and lower extremities as a whole. 38 C.F.R. § 4.26(a). The correct procedure when applying the bilateral factor to disabilities affecting both upper extremities and both lower extremities is to combine the ratings of the disabilities affecting the four extremities in the order of their individual severity and apply the bilateral factor by adding, not combining, 10 percent of the combined value thus attained. 38 C.F.R. § 4.26(b). The bilateral factor is not applicable unless there is partial disability of compensable degree in each of two paired extremities, or paired skeletal muscles. 38 C.F.R. § 4.26(c). Analysis Applying the Combined Ratings Table of 38 C.F.R. § 4.25, and the bilateral factor for his lower extremity disabilities, the Board finds that the RO correctly calculated the Veteran's combined disability rating for his service-connected disabilities as 80 percent, following the award of higher ratings for renal insufficiency and bilateral hearing loss in the December 2010 rating decision. An explanation of this conclusion follows. Initially, the Board acknowledges that of the Veteran's nine individual compensable ratings following the December 2010 rating decision, five of those ratings are for disabilities to which the bilateral factor is applied in accordance with 38 C.F.R. § 4.26. Those disabilities consist of (1) status post left knee surgery with residual instability, (2) left knee injury, status post surgery with residual scar and degenerative arthritis, (3) degenerative joint disease of the right hip, (4) degenerative joint disease of the left hip, and (5) left lower extremity sensory dysfunction associated with lumbar strain. The bilateral factor is applied to these bilateral disabilities before other combinations are carried out, and the rating for these disabilities (to include the bilateral factor) is then treated as one disability for the purpose of arranging in order of severity for use in combining with the remaining four service-connected disabilities. Each of these bilateral disabilities is evaluated as 10 percent disabling. In using Table I, Combined Ratings Table, in 38 C.F.R. § 4.25 for these separately evaluated disabilities, the following equations are illustrative: 10 (left knee surgery with residual instability) + 10 (left knee injury, status post surgery with residual scar and degenerative arthritis) = 19 combined value; then, 19 + 10 (degenerative joint disease of the right hip) = 27 combined value; then, 27 + 10 (degenerative joint disease of the left hip) = 34 combined value; then, 34 + 10 (left lower extremity sensory dysfunction associated with lumbar strain) = 41 combined value (or evaluation). As these five disabilities involve both of the lower extremities, the bilateral factor is then applied. In other words, 10 percent of the combined evaluation of 41 (or 4.1) is added on to the combined evaluation (41 + 4.1 = 45.1, or 45 rounded down). Thus, the bilateral disabilities have a 45 percent rating. Next, the 45 percent obtained from the five bilateral factor disabilities (now treated as one disability) is further combined, in applying the Combined Ratings Table, with the remaining service-connected disabilities, which include renal insufficiency (40 percent), bilateral hearing loss (30 percent), lumbar strain with degenerative changes (20 percent), and esophagitis related to gastroesophageal reflux disease (10 percent). In this manner, a combined rating of 84 is derived. For example, in arranging the order of severity of these disabilities, the bilateral factor disabilities (at 45 percent) would appear first, followed by the remaining disabilities (at 40, 30, 20, and 10 percent). In using the ratings table for these disabilities, the following equations are illustrative: 45 (bilateral factor disabilities) + 40 (renal insufficiency) = 67 combined value; then, 67 + 30 (bilateral hearing loss) = 77 combined value; then, 77 + 20 (lumbar strain with degenerative changes) = 82 combined value; then, 82 + 10 (esophagitis related to gastroesophageal reflux disease) = 84 combined value. As set forth under 38 C.F.R. § 4.25(a), such combined total must be converted to the nearest number divisible by 10, adjusting upward for values ending in 5. Therefore, the Veteran's combined evaluation of 84 percent is converted to 80 percent. This number is in agreement with the combined rating percentage calculated by the RO following the December 2010 rating decision. The Board appreciates the Veteran's expressed confusion over the calculation of his combined schedular rating after the December 2010 rating decision. It would seem intuitive that an increase in the ratings for renal insufficiency by 30 percent and for bilateral hearing loss by 20 percent would have the effect of increasing his combined rating for all service-connected disability to a proportional degree, or at least more than 10 percent. However, as shown, the computation of the combined schedular rating does not operate by way of simply adding all separate disability percentages. There is an important distinction between adding percentages together and combining percentages together using the ratings table. As earlier noted, the ratings table is employed to obtain an evaluation that reflects the "efficiency" of the Veteran as affected first by the most disabling condition followed by less disabling conditions in descending order. As explained above, the RO's calculation of the Veteran's combined schedular rating for all service-connected disabilities as a result of the December 2010 rating decision was proper, and he is not entitled to a higher combined schedular rating by operation of law. Where the law and not the evidence is dispositive, the claim is denied because of lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER As the RO properly calculated the combined schedular disability rating for the Veteran's service-connected disabilities following increases in ratings for individual disabilities by a December 2010 rating decision, the appeal seeking a higher combined rating is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs